Chapter 15.38
SMALL CELL WIRELESS FACILITIES
Sections:
15.38.040 Permit requirements.
15.38.070 Approvals and denials – Notices.
15.38.080 Conditions of approval.
15.38.120 Review of ordinance.
15.38.010 PURPOSE AND INTENT.
The purpose and intent of this chapter is to reasonably regulate and provide a uniform and comprehensive set of standards and requirements for the orderly development, siting, installation, construction, collocation, modification, operation, maintenance, relocation, and removal of small cell facilities in the public right-of-way, consistent with applicable federal and state laws. Due to Section 704 of the Telecommunications Act of 1996 and subsequent Federal Communications Commission orders, the city is prevented from taking into consideration all citizens’ concerns with respect to the health effects of this technology. Pursuant to 47 U.S.C. 332(c)(7), the city may not regulate the placement, construction, and modification of wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Federal Communications Commission’s regulations concerning such emissions. To the extent permitted by federal law, this chapter seeks to protect and promote public safety and community welfare, and preserve the city’s character and aesthetic quality, while also providing wireless services.
These regulations are further intended to:
A. Require small cell facilities in the public right-of-way to have minimal impacts on the city’s streets and sidewalks.
B. Require small cell facilities in the public right-of-way to be designed to minimize adverse visual impacts.
These regulations are not intended to, and shall not be interpreted or applied to:
A. Prohibit or effectively prohibit personal wireless services; or
B. Unreasonably discriminate among wireless communications providers of functionally equivalent services; or
C. Regulate the placement, construction, or modification of small cell facilities based on the environmental effects of radio frequency emissions to the extent that such facilities comply with all applicable FCC regulations concerning such emissions; or
D. Prohibit or effectively prohibit any collocation or modification that the city may not deny under applicable California or federal law; or
E. Preempt any applicable California or federal law.
(Ord. 2020-5 § 1, 2020: Ord. 2019-11 § 1 (part), 2019).
15.38.020 DEFINITIONS.
A. The following definitions only apply to this chapter and shall not be construed to define the same terms found in any other section of this code. As used in this chapter, the following terms shall have the meaning set forth below:
1. “Antenna” means a device or system of wires, poles, rods, dishes, discs, or similar devices used to transmit and/or receive radio or electromagnetic waves.
2. “Base station” means the same as defined in 47 C.F.R. Section 1.6100(b)(1), as may be amended or superseded.
3. “City” means the city of Santa Cruz.
4. “Code” means the city of Santa Cruz Municipal Code, as may be amended.
5. “Collocation” means the same as defined by the FCC in 47 C.F.R. Section 1.6002(g), as may be amended or superseded.
6. “CPUC” means the California Public Utilities Commission, or its duly appointed successor agency.
7. “Existing” means the same as defined by the FCC in 47 C.F.R. Section 1.6100(b)(5), as may be amended or superseded.
8. “FCC” means the Federal Communications Commission or its duly appointed successor agency.
9. “FCC shot clock” means the time frame within which the city generally must act on a given wireless application, as defined by the FCC and as may be amended or superseded.
10. “Incommode the public use” means to unreasonably hinder, impede, or obstruct the public use; or to unreasonably subject the public use to inconvenience or discomfort, as used in California Public Utilities Code Section 7901.
11. “Permit” or “small cell wireless facilities permit” means the permit issued by the department of public works for any work required in the public right-of-way for the installation or in support or otherwise related to a small cell facility, consistent with the permit guidelines and small cell aesthetic/design standards adopted by the city council, and with this chapter. This permit may functionally include the approval of various other city permits, if applicable, including a street opening permit, a concrete permit, an electrical permit, and an encroachment permit.
12. “Permit guidelines” means the small cell wireless facilities permit guidelines adopted by the city council, consistent with this chapter.
13. “Personal wireless service facilities” has the same meaning as provided in 47 U.S.C. Section 332(c)(7)(C)(ii), as may be amended or superseded.
14. “Personal wireless services” has the same meaning as provided in 47 U.S.C. Section 332(c)(7)(C)(i), as may be amended or superseded.
15. “Public right-of-way” or “city right-of-way” means any public street, public way, public alley, or public place and the space on, above or below it, and all extensions thereof, and additions thereto, under the ownership or control of the city of Santa Cruz and in its jurisdiction.
16. “Public works director” means the director of public works of the city of Santa Cruz or his or her designee.
17. “RF” means radio frequency.
18. “Section 6409(a)” means Section 6409(a) of the Middle-Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. Section 1455(a), as may be amended or superseded.
19. “Small cell aesthetic/design standards” means the aesthetic and design standards for small cell wireless facilities adopted by the city council, consistent with this chapter.
20. “Small cell wireless facilities” or “facility(ies)” means the same as defined by the FCC in 47 C.F.R. Section 1.6002(l), as may be amended or superseded.
21. “Stealth technologies/techniques” are camouflaging methods applied to wireless communications facilities which render them visually inconspicuous.
22. “Visual impact” means the placement or design of a wireless communications facility or the associated equipment such that they are not screened or shielded or are plainly visible and are likely to be noticeable or otherwise conspicuous.
23. “Wireless” mean any FCC-licensed or authorized wireless communications service transmitted over frequencies in the electromagnetic spectrum.
24. “Wireless communications facility(ies)” or “wireless facility(ies)” means an installation used to transmit signals over the air from facility to facility or from facility to user equipment for any wireless service and includes, but is not limited to, personal wireless services facilities. The term “wireless communications facilities” encompasses facilities that send, transmit, and/or receive radio frequency signals, AM/FM, microwave, and/or electromagnetic waves for the purpose of providing voice, data, images, or other information, including, but not limited to, cellular and/or digital telephone service, personal communications services, and paging services. Wireless communications facilities include, without limitation, antennas and all other types of equipment for the transmission or receipt of such signals; towers or similar structures built to support such equipment; equipment cabinets, base stations, generators, cables, conduits, and other accessory development and support features; and screening and concealment elements. Also referred to as a “facility(ies).”
25. “Wireless communications provider” is any company or organization that provides or who represents a company or organization that provides wireless communications services. (Also referred to as “service provider.”)
26. “Zoning administrator” means the zoning administrator of the city of Santa Cruz.
B. Terms not defined in this section shall be interpreted to give this chapter its most reasonable meaning and application, consistent with applicable state and federal law.
(Ord. 2019-11 § 1 (part), 2019).
15.38.030 APPLICABILITY.
A. This chapter applies to:
1. All applications to construct, install, operate, collocate, modify, reconstruct, relocate or otherwise deploy small cell facilities within the public right-of-way, except as provided otherwise in this chapter below.
2. All small cell facilities, including, without limitation, all new facilities, existing facilities, and modifications to existing facilities proposed after the effective date of this chapter, unless the facility qualifies for an exemption.
B. This chapter shall not apply to the following facilities:
1. Facilities not proposed or currently located in the public right-of-way.
2. Wireless communication facilities used solely for public safety purposes, installed and operated by authorized public safety agencies (e.g., county 911 emergency services, police, sheriff, fire departments, first responder medical services, hospitals, etc.) and incorporating stealth technologies.
3. Antennas and wireless communications facilities identified by the FCC or the CPUC as exempt from local regulations.
(Ord 2020-05 § 2, 2020: Ord. 2019-11 § 1 (part), 2019).
15.38.040 PERMIT REQUIREMENTS.
A. Small Cell Wireless Facilities Permit Required. Any applicant seeking to construct, install, modify, maintain or engage in an activity relating to a small cell facility in, on, under, or above the public right-of-way that is subject to this chapter shall obtain a small cell wireless facilities permit pursuant to the requirements of this chapter prior to conducting any work related to such wireless communications facility.
B. Permit Application Form. The applicant shall submit a complete, duly executed small cell wireless facilities permit application in a form approved by the public works director, which may be updated from time to time. The application will not be considered duly filed or complete unless submitted in accordance with the requirements of this chapter, the permit guidelines and small cell aesthetic/design standards. Applicant must pay a permit application processing fee as set by the city’s fee schedule, at the time the application is submitted.
C. City Pole License. For any small wireless facility proposed to be installed on a city pole controlled by the city and located within the public right-of-way, wireless communications providers are required to enter into a master license agreement in a form as approved by the city attorney, for the use of a city pole in a specified license area, and pay a license fee subject to the city’s fee schedule. Any applicant seeking a master license agreement shall additionally pay a master license agreement administrative fee subject to the city’s fee schedule to reimburse the city for reasonable costs in connection with its preparation, review of, and action upon the request for such an agreement. The applicant seeking a city pole license must also apply for a small cell wireless facilities permit. The absence of a city-approved master license agreement shall be an independently sufficient basis to deny the application for the small cell wireless facilities permit for a city pole.
D. Encroachment Area. The small cell wireless facilities permit will authorize the use of a particular location within the public right-of-way to perform work related to a small cell wireless facility, referred to as the encroachment area. The small cell wireless facilities permit shall specify the encroachment area and an applicant must comply with all the requirements for the encroachment, in addition to other requirements consistent with this chapter, as a condition of approval of the small cell wireless facilities permit. Compliance with the requirements for a small cell wireless facilities permit will not require approval of a separate encroachment permit under Chapter 15.34.
E. Other Permits. When a small cell wireless facilities permit requires the approval of other city permits, the public works director may review and approve such other applicable city permits, including a street opening permit, a concrete permit, an electrical permit, and an encroachment permit, as part of the approval process for the small cell wireless facilities permit. Except for these permits referenced herein or in the permit guidelines, the applicant may be required to separately obtain other additional permits or approvals from the city, state, or federal agencies. Any permit granted under this chapter is subject to the conditions and/or requirements of permits or other approvals obtained from city, state, or federal agencies, unless expressly exempted by this chapter or by the public works director.
F. Fees. All required fees, security instruments, and cash deposits related to the small cell wireless facilities permit, the master license agreement, the city pole license, and other required permits and approvals consistent with this chapter must be paid in full or be satisfied before the permit may be issued by the city. In addition, city may seek reimbursement of the actual reasonable costs related to licensing, permitting, and administering small cell wireless facilities in the public right-of-way at an applicable hourly rate as set by the city council. Failure to comply with this provision shall be a basis to deny, revoke, or terminate the small cell wireless facilities permit, the master license or other applicable permit.
G. Additional Procedures. The city council authorizes the public works director to establish forms and procedures relating to the implementation of this chapter; and determine the amount of and collect, as a condition of the completeness of any application, any fee established by city council relating to this chapter.
(Ord. 2019-11 § 1 (part), 2019).
15.38.050 REQUIRED APPROVALS.
A. Requirements for small cell facilities in the public right-of-way:
1. Wireless equipment designated as “small cell facilities” shall comply with all applicable state and federal laws including the federal Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.) and all applicable health and safety requirements, including Public Utilities Commission General Order 95, and as these rules may be amended or superseded.
2. All small cell facilities that are located within the public right-of-way shall be designed, modified, maintained or otherwise, to minimize visual, noise, impediments to access, and other impacts on the surrounding community and shall be planned, designed, located, and erected in accordance with the permit guidelines and small cell aesthetic/design standards.
3. Small cell facility deployment in the public right-of-way shall be consistent with Sections 7901 and 7901.1 of the Public Utilities Code.
4. Small cell facility deployment shall comply with all applicable local and state building codes, including building code structural requirements, and all applicable rules and laws, including the permit guidelines and small cell aesthetic/design standards.
5. Small cell facility deployment proposed in the Coastal Zone shall require approval of a coastal development permit and compliance with any other applicable laws and requirements.
6. All small cell facilities shall comply with all applicable federal RF exposure standards and exposure limits.
(Ord. 2019-11 § 1 (part), 2019).
15.38.060 REVIEW PROCESS.
A. The city shall not approve any request for a small cell wireless facilities permit except upon a complete and duly filed application on the then-current form prepared by the city. The application shall comply with this chapter and any other written rules and policies the city may adopt consistent with this chapter, including but not limited to the permit guidelines and small cell aesthetic/design standards.
B. The department of public works and the department of planning shall review all applications for small cell wireless facilities permits. The review process shall include: review of a RF report for consistency with FCC regulations and guidelines for human exposure to RF emissions; visual and aesthetics, noise, access, and public convenience considerations; and review to ensure compliance with the small cell aesthetic/design standards and permit guidelines, and all other applicable laws.
C. The small cell wireless facilities permit shall be acted on within all processing timelines required by the FCC shot clocks, applicable state or federal laws, or other applicable timelines.
(Ord. 2019-11 § 1 (part), 2019).
15.38.070 APPROVALS AND DENIALS – NOTICES.
A. Decision. The public works director shall approve, conditionally approve, or deny a complete application for a small cell wireless facilities permit.
B. Required Findings. The public works director may approve or conditionally approve a complete permit application for a small cell facility when the public works director finds:
1. The proposed project meets the definition for a “small cell facility” as defined by the FCC;
2. The applicant and/or the proposed facility complies with all applicable requirements of this chapter;
3. The application is deemed complete by the public works director, and complies with the permit guidelines;
4. The proposed project complies with all applicable design standards in the city’s adopted small cell aesthetic/design standards as determined by the city’s zoning administrator;
5. The applicant has demonstrated that the proposed project will be in compliance with all applicable health and safety regulations, which include without limitation the Americans with Disabilities Act and all FCC regulations and guidelines for human exposure to RF emissions;
6. The proposed facility will not incommode the public use of the public right-of-way;
7. The proposed construction plan and schedule will not unduly interfere with the public’s use of the public right-of-way; and
8. The proposed facility is in compliance with all federal and state standards and laws.
C. Conditional Approvals – Denials without Prejudice. Subject to any applicable federal or California laws, and the permit guidelines, nothing in this chapter is intended to limit the ability of the public works director to conditionally approve or deny without prejudice any application for a small cell wireless facilities permit as may be necessary or appropriate to ensure compliance with this chapter.
D. Decision Notices. Within five calendar days after the public works director acts on an application for a small cell wireless facilities permit or before the expiration of the applicable FCC shot clock or other time limit (whichever occurs first), the public works director shall notify the applicant of such decision by written notice. If the public works director denies the application (with or without prejudice), the written notice must contain the reasons for the decision.
E. When the public works director notifies the applicant of approval for an application, the information will also be posted on the public works “small cell” website page.
F. No Possessory Interest. No possessory interest is created by a small cell wireless facilities permit.
(Ord. 2019-11 § 1 (part), 2019).
15.38.080 CONDITIONS OF APPROVAL.
A. Fees. The applicant for a small wireless facility shall be subject to all applicable fees and charges for small cell wireless facilities and the small cell wireless facilities permit, which shall be determined by resolution adopted by the city council. If no resolution has been adopted, then the applicant must submit a signed written statement that acknowledges that the applicant will be required to reimburse the city for its reasonable costs incurred in connection with the application within ten days after the city issues a written demand for reimbursement. Applicant shall also be responsible for paying all electricity costs associated with the small cell facility installation and operation.
B. Inspection and Reporting. The permittee under the small cell wireless facilities permit, when directed by the city, must perform an inspection of the facility and submit a report to the public works department on the condition of the facility to include any identified concerns and corrective action taken or to be taken. The permittee shall also maintain and repair the facility at its sole expense during its placement in the public right-of-way. The permittee must correct or repair the facility within thirty days after the city’s notice for corrective action; after which the city reserves the right to take any action it deems necessary, which may include revocation of any applicable permit(s). The permittee is responsible for any costs associated with necessary actions performed by the city due to permittee’s failure to comply with this section and with the permit guidelines. The permittee has the burden to demonstrate compliance with this chapter.
C. The applicable permit(s) may be rescinded if construction is not substantially commenced within one year of the permit being granted, absent a showing of good cause. The applicant may not renew the permit or resubmit an application to develop a small cell facility at the same location for six months from date of rescission.
D. Abandonment. Small cell facilities no longer used to provide service shall be removed by the last known owner of record of such facility, at the sole cost of said owner and to the satisfaction of the city.
E. Existing Agreements. Existing agreements regarding the leasing or licensing of a city pole entered into before the operative date of this section remain in effect, subject to applicable termination provisions.
F. The city may adopt a resolution to reserve capacity for future city uses on vertical infrastructure based on substantial evidence in the record.
(Ord. 2019-11 § 1 (part), 2019).
15.38.090 REVOCATION.
Any permit or other authorized use of the public right-of-way granted under this chapter may be revoked or modified for cause in accordance with the provisions of this section.
A. Revocation proceedings may be initiated by the public works director.
B. Action. The public works director shall act on the proposed revocation after the time for any appeal has lapsed.
C. Required Findings. The public works director may revoke or modify the permit if it makes any of the following findings:
1. The permittee obtained the approval by means of fraud or misrepresentation of a material fact;
2. The permittee substantially expanded or altered the use or structure beyond what is set forth in the permit or substantially changed the installation’s character;
3. The use in question has ceased to exist or has been suspended or abandoned;
4. Failure to comply with any condition of a permit issued;
5. Failure to comply with this chapter;
6. A substantive change of law affecting a utility’s authority to occupy or use the public right-of-way or the city’s ability to impose regulations relating to such occupation or use;
7. A facility’s interference with a city project;
8. A facility’s interference with vehicular or pedestrian use of the public right-of-way; or
9. Failure to make a safe and timely restoration of the public right-of-way.
D. Notice of Action. The public works director shall issue a written determination of revocation and mail the determination to the permittee within ten calendar days of such determination.
E. A permittee whose permit or right has been revoked may have the revocation reviewed, upon written appeal to the city council as set forth in Section 15.38.100.
(Ord. 2019-11 § 1 (part), 2019).
15.38.100 APPEALS.
A. A permittee or a person who received notice of an application under the permit guidelines may appeal a decision of the public works director under this chapter to the city council in accordance with the provisions of Chapter 1.16, except as follows:
(1) Appeals must be filed within five days of the public works director’s decision.
(2) The city clerk shall set the appeal for hearing on the agenda for the next regular or special meeting of the city council, or otherwise within a time frame needed to comply with all applicable state or federal laws.
B. As Section 332(c)(7) of the Telecommunications Act preempts local decisions premised directly or indirectly on the environmental effects of radio frequency (RF) emissions to the extent such facilities comply with the FCC’s regulations, appeals premised on environmental effects from RF emissions that are compliant with all applicable FCC regulations will not be considered.
(Ord. 2019-11 § 1 (part), 2019).
15.38.110 ATTORNEYS’ FEES.
In the event the city determines that it is necessary to take legal action to enforce any of the requirements under this chapter or to revoke a permit, and such legal action is taken, the permittee shall be required to pay any and all costs of such legal action, including reasonable attorney’s fees, incurred by the city, even if the matter is not prosecuted to a final judgment or is amicably resolved, unless the city should otherwise agree in writing with permittee to waive said fees or any part thereof. The foregoing shall not apply if the permittee prevails in the enforcement proceeding.
(Ord. 2019-11 § 1 (part), 2019).
15.38.120 REVIEW OF ORDINANCE.
Wireless communications technology is currently subject to rapid change. Innovations may render the need for specific sections of this chapter to be reviewed and revised. The city council may amend this chapter or its rules and policies by resolution after a change to the FCC’s regulations or standards, or any applicable state or federal laws.
(Ord. 2019-11 § 1 (part), 2019).
15.38.130 SEVERABILITY.
If any section or portion of this chapter is found to be invalid by a court of competent jurisdiction, such finding shall not affect the validity of the remainder of the chapter, which shall continue in full force and effect.
(Ord. 2019-11 § 1 (part), 2019).