HomeMy WebLinkAbout3a - Comments of Larry Tucker - PA2012-057Comments of Larry Tucker
Jim, I have set forth in track changes mode the edits and questions I have. I have not looked at
Telecom Companies comments but will do so before the meeting tonight. My goal for tonight's
meeting is to walk through each page of the Ordinance, hearing from staff and then the
stakeholders, perhaps even one issue at a time. I want to get into the specifics of the language
so that, hopefully, the Commission can give guidance on the issues and staff can have a cleaned
up version back for review, hopefully in a couple of weeks. But that may not be possible
depending on the amount of redrafting that will be required. For now, please distribute to the
Commission and the stakeholders, and make available to the public, as soon as you can and we
will see what happens tonight. Thanks. Larry. Formatted: Font: not Bold
20.49 — Wireless Telecommunications Facilities
Sections
20.49.010 — Purpose
20.49.020 — Effect of Chapter
General Provisions
20.49.030 — Definitions
20.49.040 — Available Technology
20.49.050 — Location Preferences
20.49.060 — General Development and Design Standards
20.49.070 — Permit Review Procedures
20.49.050— Permit Implementation, Time Limits, Duration, and Appeals
20.49.090— Agreement for Use of City -owned or City -held Trust Property
20.49.100 — Modification of Existing Telecom Facilities
20.49.110 — Operational and Radio Frequency Compliance and Emissions Report
20.49.120 — Right to Review or Revoke Permit
20.49.130 — Removal of Telecom Facilities
20.49.010 — Purpose
A. The purpose of this Chapter is to provide for the installation, modification, operation and
maintenance of 1 —Telecom Facilities on public and
private property consistent with state and federal law while ensuring public safety, reducing
the visual effects of =Telecom Facilities on public streetscapes, protecting scenic,
ocean and coastal public views, and otherwise mitigating the impacts of Telecom
Facilities. More specifically, the regulations contained herein are intended to encourage:;
1) the location of Telecom Facilities in non - residential areas, 2)
Collocation at new and existing Antenna sites, and 3) era�Telecom
Facilities to be located in areas where adverse visual impacts on the community and public
views are minimized.
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B. The provisions of this Chapter are not intended and shall not be interpreted to prohibit or
to have the effect of prohibiting telecom services. This Chapter shall be applied to
providers, operators, and maintainers of wireless services regardless of whether authorized
by state or federal regulations. This Chapter shall not be applied in such a manner as to
unreasonably discriminate among providers of functionally equivalent telecom services.
C. All Telecom Facilities approved under this Chapter shall utilize the most efficient and least
obtrusive available technology in order to minimize the number of Telecom Facilities in the
City and reduce their visual impact on the community and public views.
20.49.020 — Effect of Chapter
A. Regulatory Scope. These regulations are applicable to all Telecom Facilities providing voice
and /or data transmission such as, but not limited to, cell phone, internet and radio relay
stations.
B. Permit and /or Agreement Required. Prior to construction or modification of any Telecom
Facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use
Permit (CUP), Limited Term Permit (LTP), or Zoning Clearance (ZC), depending on the
proposed location, Antenna Class, and method of installation, in accordance with Section
20.49.070 (Permit Review Procedures). Applicants who obtain a MUP, CUP, LTP, or ZC (and
an encroachment permit, if required) for any Telecom Facility approved to be located on
any City -owned property or City -held Trust property, shall enter into an agreement
prepared and executed by the City Manager or its designee prior to construction of the
Telecom Facility, consistent with Section 20.49.090 (Agreement for Use of City -awned or
City -held Trust Property).
C. Exempt Facilities. The following types of facilities are exempt from the provisions of this
Chapter:
1. Amateur radio antennas and receiving satellite dish antennas, and citizen band radio
antennas regulated by Section 20.48.190 (Satellite Antennas and Amateur Radio
Facilities).
2. Dish and other antennas subject to the FCC Over- the -Air Reception Devices ( "OTARD ")
rule, 47 C.F.R. § 1.4000 that are designed and used to receive video programming
signals from (a) direct broadcast satellite services, or (b) television broadcast stations, or
(c) for wireless cable service.
3. During an emergency, as defined by Title 2 of the NBMC, the City Manager, Director of
Emergency Services or Assistant Director of Emergency Services shall have the authority
to approve the placement of a Telecom Facility in any district on a temporary basis not
exceeding ninety (90) calendar days from the date of authorization. Such authorization
may be extended by the City on a showing of good cause.
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4. Facilities exempt from some or all of the provisions of this Chapter by operation of state
or federal law to the extent so determined by the City.
S. Systems installed or operated at the direction of the City or its contractor.
6. Systems installed entirely within buildings for the sole purpose of providing wireless
telecommunications services or data transmission services to building occupants.
D. Other Regulations. Notwithstanding the provisions of this Chapter, all Telecom Facilities
within the City shall comply with the following requirements:
1. Rules, regulations, policies, or conditions in any permit, license, or agreement issued by
a local, state or federal agency which has jurisdiction over the Telecom Facility.
2. Rules, regulations and standards of the Federal Communications Commission (FCC) and
the California Public Utilities Commission (CPUC).
E. Regulations not in Conflict or Preempted. All Telecom Facilities within the City shall comply
with the following requirements unless in conflict with or preempted by the provisions of
this Chapter:
1. All applicable City design guidelines and standards.
2. Requirements established by any other provision of the Municipal Code and by any
other ordinance and regulation of the City.
F. Legal Nonconforming Facility. Any Telecom Facility that is lawfully constructed, erected, or
approved prior to the effective date of this Chapter that is operating in compliance with all
applicable laws, and which Facility does not conform to the requirements of this Chapter
shall be accepted and allowed as a legal nonconforming Facility if otherwise approved and
constructed. Legal nonconforming Telecom Facilities shall comply at all times with the laws,
ordinances, and regulations in effect at the time the application was deemed complete, and
any applicable federal and state laws as they may be amended or enacted, and shall at all
times comply with any conditions of approval.
20.49.030 — Definitions
For the purposes of this Chapter, the following definitions shall apply
A. Antenna. Antenna means a device used to transmit and /or receive radio or
electromagnetic waves between earth and /or satellite -based systems, such as reflecting
discs, panels, microwave dishes, whip antennas, Antennas, arrays, or other similar devices.
B. Antenna Array. Antenna Array means Antennas having transmission and /or reception
elements extending in more than one direction, and directional Antennas mounted upon
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and rotated through a vertical mast or tower interconnecting the beam and Antenna
support, all of which elements are deemed to be part of the Antenna.
C. Antenna Classes. Antenna Classes are Telecom Facilities and the attendant Support
Equipment separated into the following distinct classes:
1. Class 1 (Stealth /Screened): a Facility with Antennas mounted on an existing or
proposed non - residential building or other structure not primarily intended to be an
antenna support structure where Antennas and Support Equipment, including the base
station, are fully screened so that they are not visible to the general public.
2. Class 2 (Visible): a Facility with Antennas mounted on an existing non - residential
building, structure, pole, light standard, Utility Tower, Wireless Tower and /or Lattice
Tower.
3. Class 3 (Public Right -of -Way Installations): a Facility with Antennas installed on a
structure located in the public right -of -way.
4. Class 4 (Freestanding Structure): a Facility with Antennas mounted on a new
freestanding structure constructed for the sole or primary purpose of supporting the
Telecom Facility.
5. Class 5 (Temporary): a Facility including associated Support Equipment that is installed
at a site on a temporary basis pursuant to a Limited Term Permit. A Class 5 installation
may also be installed in connection with a special event upon the approval of a Special
Events Permit pursuant to Chapter 11.03 without a Limited Term Permit.
D. Base Station. Base Station means the electronic equipment at a Telecom Facility installed
and operated by the Telecom Operator that together perform the initial signal transmission
and signal control functions. Base Station does not include the Antennas and Antenna
support structure, or the Support Equipment, nor does it include any portion of DAS.
E. City -owned or City -held Trust Property. City -owned or City -held Trust Property means all
real property and improvements owned, operated or controlled by the City, other than the
public right -of -way, within the City's jurisdiction, including but +,-not limited to City Hall,
Police and Fire facilities, recreational facilities, parks, beaches ( ?), libraries, monuments,
signs, streetlights and traffic control standards.
F. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are
installed on the same building or structure.
G. Distributed Antenna System, DAS. Distributed Antenna System (DAS) means a network of
one or more Antennas and fiber optic nodes typically mounted to streetlight poles, or utility
structures, which provide access and signal transfer services to one or more third -party
wireless service providers. DAS also includes the equipment location, sometimes called a
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"hub" or "hotel" where the DAS network is interconnected with third -party wireless service
providers to provide the signal transfer services.
H. FCC. FCC means the Federal Communications Commission, the federal regulatory agency
charged with regulating interstate and international communications by radio, television,
wire, satellite, and cable.
I. Feasible or Feasibly. Feasible or Feasibly means capable of being accomplished in a
successful manner within a reasonable period of time, taking into account environmental,
physical, legal and technological factors.
J. Lattice Tower. Lattice Tower means a freestanding open framework structure used to
support Antennas, typically with three or four support legs of open metal crossbeams or
crossbars.
K. Monopole. Monopole means a single free - standing pole or pole -based structure solely
used to act as or support a Telecom Antenna or Antenna Arrays.
L. Operator or Telecom Operator. Operator or Telecom Operator means any person, firm,
corporation, company, or other entity that directly or indirectly owns, leases, runs,
manages, or otherwise controls a Telecom Facility or facilities within the City.
M. Public Right -of -Way. Public Right -of -Way or ('PROW ") means the improved or unimproved
surface of any street, or similar public way of any nature, dedicated or improved for
vehicular, bicycle, and /or pedestrian related use. PROW includes public streets, roads,
lanes, alleys, sidewalks, medians, parkways and landscaped lots.
N. Stealth or Stealth Facility. Stealth or Stealth Facility means a Telecom Facility in which the
Antenna, and the Support Equipment, are completely hidden from view in a monument,
cupola, pole -based structure, or other concealing structure which either mimics, or which
also serves as, a natural or architectural feature. Concealing structures which are obviously
not such a natural or architectural feature to the average observer do not qualify within this
definition. A false tree is not a Stealth Facility.
O. Support Equipment. Support Equipment means the physical, electrical and /or electronic
equipment included within a Telecom Facility used to house, power, and /or contribute to
the processing of signals from or to the Facility's Antenna or Antennas, including but not
limited to a base station, cabling, air conditioning units, equipment cabinets, pedestals, and
electric service meters. Support Equipment does not include DAS, Antennas or the building
or structure to which the Antennas or other equipment are attached.
P. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless
Telecommunications Facility, or Facility. Why not iust pick one of these words and stick
with it? Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless
Telecommunications Facility, or simply Facility or Facilities means an installation that sends
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and /or receives wireless radio frequency signals or electromagnetic waves, including but
not limited to directional, omni - directional and parabolic antennas, structures or towers to
support receiving and /or transmitting devices, supporting equipment and structures, and
the land or structure on which they are all situated. The term does not include mobile
transmitting devices, such as vehicle or hand held radios /telephones and their associated
transmitting antennas.
Q. Utility Pole. Utility Pole means a single freestanding pole used to support services provided
by a public or private utility provider.
R. Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or
steel pole used to support electric transmission facilities.
S. Wireless Tower. Wireless Tower means any structure built for the sole or primary purpose
of supporting Antennas used to provide wireless services authorized by the FCC. A
Distributed Antenna System (DAS) installed pursuant to a Certificate of Public Convenience
and Necessity (CPCN) issued by the California Public Utilities Commission on a water tower,
utility tower, street light, or other structures built or rebuilt or replaced primarily for a
purpose other than supporting wireless services authorized by the FCC, including any
structure installed pursuant to California Public Utility Code Section 7901, is not a Wireless
Tower for purposes of this definition. For an example only, a prior- existing light standard
which is replaced with a new light standard to permit the addition of Antennas shall not be
considered a Wireless Tower, but rather a replacement light standard.
20.49.050 — Location Preferences
A. Preferred Locations. To limit the adverse visual effects of and proliferation of new or
individual Telecom Facilities in the City, the following list establishes the order of preference
for the location and installation of Telecom Facilities, from highest priority location and
technique to lowest.
1. Collocation of a new facility at an existing facility.
2. Class 1.
3. Class 2.
4. Class 3.
5. Class 4.
6. Class 5.
B. Prohibited Locations. Telecom Facilities are prohibited in the following locations:
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1. On properties zoned for single -unit or two -unit residential development, including
equivalent PC District designation.
2. On properties zoned for multi -unit residential development and mixed -use development
where the maximum allowable number of dwelling units is four (4) units.
3. In the Open Space (OS) zoning district, unless Telecom Facilities are collocated on an
existing Utility Tower within a utility easement area, or collocated on an existing
Telecom Facility.
-3 4. [Comment: Isn't it possible that there could be an appropriate place for a
Telecom Facility in one of these zones, although not many places ?l
45. On streetlights. [Comment: There is some language about streetlights
elsewhere in this Ordinance that causes me to wonder if streetlights should be a
prohibited location.l
C. Installations in the Public Right -of -Way. All Telecom Facilities proposed to be located in
the public right -of way shall comply with the provisions of Title 13. Antenna installations on
an existing or replacement streetlight [Comment: I thought streetlights were a prohibited
location. pole shall be compatible in design, scale, and proportion to streetlights and the
pole on which they are mounted.
D. Collocation Installations. A new Telecom Facility proposed within one thousand (1,000) feet
of an existing Telecom Facility shall be required to collocate on the same building or
structure as the existing Telecom Facility.
1. Exception: If the reviewing authority determines, based on a preponderance of
GeMPE evidence submitted b�,- - , that Collocation of one or more new
Telecom Facilities within one thousand (1,000) feet of an existing Telecom Facility is not
Feasible, then such Collocation shall not be required.
2. Condition Requiring Future Collocation. In approving a Telecom Facility, the review
authority may impose a condition of approval providing for future Collocation of
Telecom Facilities by other carriers at the same site to the extent Feasible.
20.49.060 — General Development and Design Standards.
A. General Criteria. All Telecom Facilities shall employ design techniques to minimize visual
impacts and provide appropriate screening to result in the least visually intrusive means of
providing the service. Such techniques shall be employed to make the installation,
appearance and operations of the Telecom Facility as visually inconspicuous as
practicabletaessNa[e (Comment: Much is possible, but not always practicablel. To the
greatest extent Feasible, Telecom Facilities shall be designed to minimize the visual impact
of the Telecom Facility by means of location, placement, height, screening, landscaping, and
Page 17
shall be compatible with existing architectural elements, building materials, other building
characteristics, and the surrounding area.
In addition to the other design standards of this Section, the following criteria shall be
considered by the review authority in connection with its processing of any MUP, CUP, LTP,
or ZC for a Telecom Facility:
1. Blending. The extent to which the proposed Telecom Facility blends into the
surrounding environment or is architecturally compatible and integrated into the
structure.
2. Screening. The extent to which the proposed Telecom Facility is concealed or screened
by existing or proposed new topography, vegetation, buildings or other structures.
3. Size. The total size of the proposed Telecom Facility, particularly in relation to
surrounding and supporting structures.
4. Location. Proposed Telecom Facilities shall be located so as to utilize existing natural or
man -made features in the vicinity of the Telecom Facility, including topography,
vegetation, buildings, or other structures to provide the greatest amount of visual
screening and blending with the predominant visual backdrop.
4-5. Collocation. In evaluating whether the Collocation of a Telecom Facility is
Feasible, the criteria listed in 1 -4 above shall be used to evaluate the visual effect of the
combined number of Telecom Facilities at the proposed location.
B. Public View Protection. Telecom Facilities involving a site adjacent to an identified public
view point or corridor, as identified in General Plan Policy NR 20.3 (Public Views), shall be
reviewed to evaluate the potential impact to public views consistent with Section 20.30.100
(Public View Protection). [Comment: NR 20.3 allows for other public views to be identified
in the future. Therefore, shouldn't the review process also be able to evaluate an impact to
a public view that is not then listed in NR20.3 ?1
C. Height.
1. Telecom Facilities installed on buildings or other structures shall comply with the base
height limit established in Part 2 (Zoning Districts, Allowable Uses, and Zoning District
Standards) for the zoning district in which the Telecom Facility Is located. [Comment:
The staff report indicates that a new facility would be able to exceed the base height by
5'. Maybe I misunderstood the staff report, so please explain.l
2. Applications for the installation of Telecom Facilities proposed to be greater than the
base height limit for the zoning district in which the Telecom Facility is located shall be
subject to review and action by the Planning Commission. The Planning Commission
may approve or conditionally approve a CUP for a Telecom Facility to exceed the base
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height limit after making all of the required findings in Section 20.49.070.H (Permit
Review Procedures).
3. All Telecom Facilities shall comply with Antenna height restrictions, if any, required by
the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport
Environs Land Use Plan (�.,aUP) for John Wayne Airport and Airport Land Use
Commission 'A� Review Requirements) as may be in force at the time the Telecom
Facility is permitted or modified.
4. Antennas shall be installed at the minimum height possible to provide average
(Comment: Not sure what average is, but don't we want effective service ?] service to
the Telecom Operators proposed service area. In any case, no Antenna or other
telecom equipment or screening structure shall extend higher than the following
maximum height limits:
a. Telecom Facilities installed on streetlight standards, Utility Poles, Utility Towers
or other similar structures within the public right -of -way shall not exceed 35 feet
in height above the finished grade.
b. Telecom Facilities may be installed on existing Utility Poles or Utility Towers that
exceed 35 feet above the finished grade where the purposes of the existing
Utility Pole or Utility Tower is to carry electricity or provide other wireless data
transmission provided that the top of the Antenna does not extend above the
top of the Utility Pole or Utility Tower.
c. Telecom Facilities installed in ground- mounted flagpoles may be installed at a
maximum height of 35 feet.
D. Setbacks. Proposed Telecom Facilities shall comply with the required setback established
by the development standards for the zoning district in which the Telecom Facility is
proposed to be located. Setbacks shall be measured from the part of the Telecom Facility
closest to the applicable lot line or structure.
E. Design Techniques. Design techniques shall result in the installation of a Telecom Facility
that is in scale with the surrounding area, screens - i [Comment: The Ordinance has been
using the word "screen" so I would recommend we stick with one word to describe the
obiective rather than introduce the word "hide" which could then be argued to mean
something other than screen.] the installation from predominant views from surrounding
properties, and prevents the Telecom Facility from visually dominating the surrounding
area. Design techniques may include the following:
1. Screening elements to disguise, or otherwise hide the Telecom Facility from view from
surrounding uses.
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2. Painting and /or coloring the Telecom Facility to blend into the predominant visual
backdrop.
3. Siting the Telecom Facility to utilize existing features (buildings, topography, vegetation,
etc.) to screen or hide the Telecom Facility.
4. Utilizing simulated natural features (trees, rocks, etc.) to screen or hide the Telecom
Facility.
5. Providing Telecom Facilities of a size that, as determined by the City, is not visually
obtrusive such that any effort to screen the Telecom Facility would not create greater
visual impacts than the Telecom Facility itself.
F. Screening Standards. For Collocation installations, the screening method shall be materially
similar to those used on the existing Telecom Facility, and shall not diminish the screening
of the Telecom Facility. If determined necessary by the review authority, use of other
improved and appropriate screening methods may be required to screen the Antennas and
Support Equipment from public view. The Following is a non - exclusive list of potential
design and screening techniques that should be considered:
1. For Class 1(Stealth /Screened) Antenna Installations
a. All Telecom Facility components, including all Antenna panels and Support
Equipment, shall be fully screened, and mounted either inside the building or
structure, or behind the proposed screening elements and not on the exterior face
of the building or structure.
b. Screening materials shall match in color, size, proportion, style, and quality with the
exterior design and architectural character of the structure and the surrounding
visual environment. If determined necessary by the reviewing authority, screening
to avoid adverse impacts to views from land or buildings at higher elevations shall be
required.
c. In conditions where the Antennas and Support Equipment are installed within a new
freestanding structure, (an architectural feature such as a steeple, religious symbol
or tower, cupola, clock tower, sign, etc.), the installation shall blend in the
predominant visual backdrop so it appears to be a decorative and attractive
architectural feature.
2. For Class 2 (Visible) Antenna Installations:
a. Building or structure mounted Antennas shall be painted or otherwise coated to
match or complement the predominant color of the structure on which they are
mounted and shall be compatible with the architectural texture and materials of the
building to which the Antennas are mounted. No cables and mounting brackets or
any other associated equipment or wires shall be visible from above, below or the
Page 110
side of the Antennas. [Comment: If the facility is visible, will this actually be
ossible?
b. All Antenna components and Support Equipment shall be treated with exterior
coatings of a color and texture to match the predominant visual background and /or
adjacent architecture so as to visually blend in with the surrounding development.
Subdued colors and non - reflective materials that blend with surrounding materials
and colors shall be used.
3. For Class 3 (Public Right -of -Way) Antenna Installations:
a. Whenever Feasible, new Antennas proposed to be installed in the public right -of-
way shall be placed on existing or replacement utility structures, light standards, or
other existing vertical structures. Antenna installations on existing or replacement
streetlight poles rare these prohibited ?] , traffic control standards, or Utility Poles
shall be screened by means of canisters, radomes, shrouds other screening
measures whenever Feasible, and treated with exterior coatings of a color and
texture to match the existing pole.
b. If Antennas are proposed to be installed without screening, they shall be flush -
mounted to the pole and shall be treated with exterior coatings of a color and
texture to match the existing pole.
c. If a new pole is proposed to replace an existing pole, the replacement pole shall be
consistent with the size, shape, style and design of the existing pole, including any
attached light arms.
4. For Class 4 (Freestanding Structure) Antenna Installations:
a. For a false rock, the proposed screen structure shall match in scale and color other
rock outcroppings in the general vicinity of the proposed site. A false rock screen
may not be considered appropriate in areas that do not have natural rock
outcroppings.
b. The installation of a false tree (such as but without limitation a monopine or
monopalm, or false shrubbery) shall be designed for and located in a setting that is
compatible with the proposed screening method. Such installations shall be situated
so as to utilize existing natural or manmade features including topography,
vegetation, buildings, or other structures to provide the greatest amount of visual
screening. For false trees or shrubbery installations, all Antennas and Antenna
supports shall be contained within the canopy of the tree design, and other
vegetation comparable to that replicated in the proposed screen structure shall be
prevalent in the immediate vicinity of the antenna site, and the addition of new
comparable living vegetation may be necessary to enhance the false tree or
shrubbery screen structure.
Page 111
c. For installations of a flagpole, the pole shall not exceed 24 inches in width at the
base of the flagpole and also shall not exceed 20 inches in width at the top of the
flagpole.
5. For Class 5 (Temporary) Antenna Installations:
a. A temporary Telecom Facility installation may require screening to reduce visual
impacts depending on the duration of the permit and the setting of the proposed
site. If screening methods are determined to be necessary by the review authority,
the appropriate screening methods will be determined through the permitting
process reflecting the temporary nature of the Telecom Facility.
6. Support Equipment. All Support Equipment associated with the operation of any
Telecom Facility shall be placed or mounted in the least visually obtrusive location
oracticableqGssihie, and shall be screened from view.
a. Installations on Private Property. The following is a non - exclusive list of potential
screening techniques for Telecom Facilities located on private property:
(1) Building- Mounted Facilities. For building or structure - mounted Antenna
installations, Support Equipment for the Telecom Facility may be located inside
the building, in an underground vault, or on the roof of the building that the
Telecom Facility is located on, provided that both the equipment and any
screening materials are architecturally compatible and /or painted the color of
the building, roof, and /or surroundings thereby providing screening. If placed in
an underground vault, flush -to -grade vents, or vents that extend no more than
24 inches above the finished grade and are screened from public view may be
incorporated.
(2) Roof - Mounted Facilities. All screening materials for roof - mounted Telecom
Facilities shall be of a quality and design compatible with the architecture, color,
texture and materials of the building to which it is mounted. If determined
necessary by the review authority, screening to avoid adverse impacts to views
from land or buildings at higher elevations shall be required.
(3) Freestanding Facilities. For freestanding Telecom Facilities installations, not
mounted on a building or structure, Support Equipment for the Telecom Facility
may be visually screened by locating the Support Equipment in a fully enclosed
building, in an underground vault, or in a security enclosure consisting of walls
and /or landscaping to effectively screen the Support Equipment at the time of
installation.
(4) All wall and landscaping materials shall be selected so that the resulting
screening will be visually integrated with the architecture and landscape
architecture of the surroundings.
Page 112
(5) Screening enclosures may utilize graffiti- resistant and climb- resistant vinyl -clad
chain link with a "closed- mesh" design (i.e. one -inch gaps) or may consist of an
alternate enclosure design approved by the review authority. In general, the
screening enclosure shall be made of non - reflective material and painted to
blend with surrounding materials and colors.
(6) If placed in an underground vault, flush -to -grade vents, or alternatively, vents
that extend no more than 24 inches above the finished grade and are screened
from public view may be utilized.
b. Installations in a Public Right -of -Way. The following is a non - exclusive list of
potential screening techniques for Telecom Facilities located in a public right -of -way:
(1) Where the existing utilities services (e.g., telephone, power, cable TV) are
located underground, the Support Equipment shall be placed underground,
consistent with Chapter 13.20. Flush -to -grade underground vault enclosures,
including flush -to -grade vents, or vents that extend no more than 24 inches
above the finished grade and are screened from public view may be
incorporated. Electrical meters required for the purpose of providing power for
the proposed Telecom Facility may be installed above ground on a pedestal in a
public right -of -way.
(2) Support equipment approved to be located above ground in a public right -of-
way shall be painted or otherwise coated to be visually compatible with the
existing or replacement pole, lighting and /or traffic signal equipment without
substantially increasing the width of the structure.
(3) All transmission or amplification equipment such as remote radio units, tower
mounted amplifiers and surge suppressors shall be mounted inside the
streetlight pole or traffic control standard without increasing the pole diameter
or shall be installed in a flush -to -grade vault enclosure adjacent to the base of
the pole.
G. Night Lighting. Telecom Facilities shall not be lighted except for security lighting at the
lowest intensity necessary for that purpose or as may be recommended by the U.S. Flag
Code. Such lighting shall be shielded so that direct illumination does not directly shine on
nearby properties. The review authority shall consult with the Police Department regarding
proposed security lighting for Telecom Facilities on a case -by -case basis.
H. Signs and Advertising. No advertising signage or identifying logos shall be displayed on any
Telecom Facility except for small identification, address, warning, and similar information
plates. Such information plates shall be identified in the telecom application and shall be
subject to approval by the review authority. Signage required by state or federal regulations
shall be allowed in its smallest permissible size.
Page 113
I. Nonconformities. A proposed Telecom Facility shall not create any new or increased
nonconformity as defined in the Zoning Code, such as, but not limited to, a reduction in
and /or elimination of, required parking, landscaping, or loading zones unless relief is sought
pursuant to applicable Zoning Code procedures.
J. Maintenance. The Telecom Operator shall be responsible for maintenance of the Telecom
Facility in a manner consistent with the original approval of the Telecom Facility, including
but not limited to the following:
1. Any missing, discolored, or damaged screening shall be restored to its original permitted
condition.
2. All graffiti on any components of the Telecom Facility shall be removed promptly in
accordance the Newport Beach Municipal Code.
3. All landscaping required for the Telecom Facility shall be maintained in a healthy
condition at all times, and shall be promptly replaced if dead or dying, or damaged [e.g.
branches broken off in a storm or otherwise. Tree is still alive, but not what it once
was.).
4. All Telecom Facilities shall be kept clean and free of litter.
5. All equipment cabinets shall display a legible contact number for reporting maintenance
problems to the Telecom€&4+ Operator.
6. If a flagpole is used for a Telecom Facility, flags shall be flown and shall be properly
maintained at all times. The use of the United States flag shall comply with the
provisions of the U.S. Flag Code (4 U.S.C. § 1 et seq.).
20.49.070— Permit Review Procedures.
A. Application Procedures. Applications for Telecom Facilities shall be subject to Chapters
20.50, 20.52, and 20.54 unless otherwise modified by this Section.
B. Permit Required. All Telecom Facilities shall obtain a MUP, CUP, LTP, or ZC if not prohibited
by subsection 20.49.050.8, depending on the Antenna Class and location, as specified in the
Table 4 -1:
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Table 4 -1
Permit Requirements for Telecom Facilities
(a) Any application for a Telecom Facility that proposes to exceed the base height limit of
the applicable zoning district in which the Telecom Facility is located shall require the
issuance I iee of a CUP by the Planning Commission.
j1DAS installed on an existing streetlight pole, existing utility pole or other existing
structure may be allowed subject to issuance of a Zoning Clearance (ZC) when the
Director determines the Facility complies with the screening requirements.
4H34(c) [Comment: I am sure I missed this, but where is it set forth who the review
authority is for each of a MUP, CUP and LTP? The staff report indicated the Planning
Commission would be the initial review authority only for the "most visible proposals'.
How does this work ?l
C. Application Submission Requirements for Telecom Facilities on City -owned or City -held
Trust Properties. Prior to the submittal for any application for any Telecom Facility located
on any City -owned property or City -held trust property, the applicant shall first obtain
written authorization from the City Manager or its designee to submit an application.
D. Fee. All costs associated with the permit application review shall be the responsibility of
the applicant, including any expense incurred for any outside technical or legal services in
connection with the application.
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Antenna Class and Permit Requirement
Class 1
Class 2
Class 3
Class 4
Class S
Location of Proposed Telecom Facility
(a)
(a) (b)
(a) (b)
(a) (b)
(a)
Facility located in any Zoning District,
ZC
MUP
MUP
MUP
LTP
Planned Community, or Specific Plan within
150 feet of any Residential District or their
equivalent residential land use designation
within a Planned Community District or
Specific Plan.
Facility not located in the area identified in
ZC
MUP
MUP
CUP
LTP
Subsection 1 [of what ?lbut located in or
within 150 feet of Open Space Districts (OS),
Public Facilities Districts (PF), Parks and
Recreation Districts (PR), or their equivalent
land use designations within a Planned
Community District or Specific Plan.
Facility not located in the other areas
ZC
CUP
MUP
CUP
LTP
identified
(a) Any application for a Telecom Facility that proposes to exceed the base height limit of
the applicable zoning district in which the Telecom Facility is located shall require the
issuance I iee of a CUP by the Planning Commission.
j1DAS installed on an existing streetlight pole, existing utility pole or other existing
structure may be allowed subject to issuance of a Zoning Clearance (ZC) when the
Director determines the Facility complies with the screening requirements.
4H34(c) [Comment: I am sure I missed this, but where is it set forth who the review
authority is for each of a MUP, CUP and LTP? The staff report indicated the Planning
Commission would be the initial review authority only for the "most visible proposals'.
How does this work ?l
C. Application Submission Requirements for Telecom Facilities on City -owned or City -held
Trust Properties. Prior to the submittal for any application for any Telecom Facility located
on any City -owned property or City -held trust property, the applicant shall first obtain
written authorization from the City Manager or its designee to submit an application.
D. Fee. All costs associated with the permit application review shall be the responsibility of
the applicant, including any expense incurred for any outside technical or legal services in
connection with the application.
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E. Review Process. Review of applications for all Telecom Facilities in City shall be consistent
with Chapter 20.50 (Permit Application Filing and Processing), and the FCC Declaratory
Ruling FCC 09 -99 ( "Shot Clock ") deadlines.
F. Review of Collocated Facilities. Notwithstanding any provision of this Chapter to the
contrary, pursuant to California Government Code section 65850.6 (as amended or
superseded), the addition of a new Telecom Facility to an existing Telecom Facility resulting
in the establishment of a Collocated Telecom Facility shall be allowed without a
discretionary review provided it meets section 20.49.100. If such a Collocated Telecom
Facility does not satisfy all of the requirements of Government Code section 65850.6 and
Section 20.49.100, the facility shall be reviewed pursuant the review procedures provided in
Table 4 -1.
G. Emergency Communications Review. At the time an application is submitted to the
Community Development Department, a copy of the Plans, Map, and Emission Standards
shall be sent to the Chief of the Newport Beach Police Department. The Police Department
or its designee shall review the plan's potential conflict with emergency communications.
The review may include a pre - installation test of the Telecom Facility to determine if any
interference exists. If the Police Department determines that the proposal has a high
probability that the Telecom Facility will interfere with emergency communications devices,
the applicant shall work with the Police Department to avoid interference.
H. Public Notice and Public Hearing Requirements. An application for a MUP, CUP or LTP shall
require a public notice, and a public hearing shall be conducted, in compliance with Chapter
20.62 (Public Hearings).
I. Required Findings for Telecom Facilities. The following findings shall apply to all Telecom
Facilities requiring discretionary review:
1. General. The review authority may approve or conditionally approve an application for
a Telecom Facility only after first finding each of the required findings for a MUP or CUP
pursuant to Section 20.52.020 (Conditional Use Permits and Minor Use Permits), or an
LTP pursuant to Section 20.52.040 (Limited Term Permits), and each of the following:
a. The proposed Telecom Facility is visually compatible with the surrounding
neighborhood.
b. The proposed Telecom Facility complies with the technology, height, location and
design standards, as provided for in this Chapter.
c. An alternative site(s) located further from a Residential District, Public Park or Public
Facility cannot €Feasibly fulfill the coverage needs fulfilled by the installation at the
proposed site.
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d. An alternative Antenna construction plan that would result in a higher priority
Antenna Class category for the proposed Telecom Facility is not available or
reasonably Feasible and desirable under the circumstances.
2. Findings to Increase Height. The review authority may approve, or conditionally approve
an application for a Telecom Facility which includes a request to exceed the base height
limit for the zoning district in which the Telecom Facility is located only after making
each of the following findings in addition to the required findings above, as well the
required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use
Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term
Permits):
a. The increased height will not result in undesirable or abrupt scale changes or
relationships being created between the proposed Telecom Facility and existing
adjacent developments or public spaces. [Comment: Is it possible to have an abrupt
scale change that is not undesirable ?l
b. Establishment of the Telecom Facility at the requested height is necessary to provide
service.
20.49.080— Permit Implementation, Time Limits, Extensions, and Appeals.
A. The process for implementation or "exercising' of permits issued for a Telecom Facility,
time limits, and extensions, shall be in accordance with Chapter 20.54 (Permit
Implementation, Time Limits, and Extensions).
B. Appeals. Any appeal of the decision of the review authority of an application for a Telecom
Facility shall be processed in compliance with Chapter 20.64 (Appeals).
20.49.090 — Agreement for Use of City -Owned or City -Held Trust Property.
When applying for a permit pursuant to this Chapter, all Telecom Facilities located on City -
owned or City -held trust property shall require a license agreement approved as to form by the
City Attorney, and as to substance (including, but not limited to, compensation, term, insurance
requirements, bonding requirements, and hold harmless provisions) by the City Manager,
consistent with provisions in the City Council Policy Manual.
Prior to entering into an agreement, the applicant shall obtain a MUP, CUP, LTP or ZC. Upon
the issuance of a MUP, CUP, LTP or ZC, as required, and upon entering into an agreement, the
applicant shall obtain any and all necessary ministerial permits, including, encroachment
permits for work to be completed in the public right -of -way, and building permits, etc. All costs
of said permits shall be at the sole and complete responsibility of the applicant. All work shall
be performed in accordance with the applicable City standards and requirements.
20.49.100 — Modification of Existing Telecom Facilities
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Notwithstanding any provision in this Chapter of the Zoning Code, a request to modify an
existing Facility that involves the Collocation of new transmission equipment, the removal of
existing transmission equipment, or the replacement of existing transmission equipment shall
be subject to a ministerial review and approval of a ZC without toe— processing ef—any
discretionary permit provided that such modification does not substantially change the existing
Facility from the original permit for the Facility. A substantial change means a single change, or
series of changes over time that exceeds five percent (S %) of the physical dimension of the
Telecom Facility approved as part of the original discretionary permit.
Each application submitted under this section for a modification to an existing Telecom Facility
shall be accompanied by:
1. A detailed description of the proposed modifications to the existing Telecom
Facility(ies);
2. A photograph or description of the Telecom Facility as originally constructed, if
available; a current photograph of the existing Telecom Facility; and, a graphic depiction
of the Telecom Facility after modification showing all relevant dimensions;
3. A detailed description of all construction that will be performed in connection with the
proposed modification; and
4. A written statement signed and stamped by a professional engineer, licensed and
qualified in California, attesting that the proposed modifications do not constitute a
substantial change of the existing permitted facility.
Any permit issued will be conditioned upon, and may be revoked, and the Telecom Facility shall
be required to be removed or restored to its pre- modification condition if:
a. Any material statement made with respect to the Telecom Facility is false; or
b. The modifications as actually made would have reouiredtriggered a discretionary review
had the plan for the Telecom Facility depicted the modifications.
20.49.110 — Operational and Radio Frequency Compliance and Emissions Report.
At all times, the operator shall ensure that its Telecom Facilities shall comply with the most
current regulatory, operations standards, and radio frequency emissions standards adopted by
the FCC. The operator shall be responsible for obtaining and maintaining the most current
information from the FCC regarding allowable radio frequency emissions and all other
applicable regulations and standards. Said information shall be made available by the operator
upon request at the discretion of the Community Development Director.
Within thirty (30) days after installation of a Telecom Facility, a radio frequency (RF) compliance
and emissions report prepared by a qualified RF engineer acceptable to the City shall be
submitted in order to demonstrate that the Telecom Facility is operating at the approved
Page 118
frequency and complies with FCC standards for radio frequency emissions safety as defined in
47 C.F.R. § 1.1307 et seq. Such report shall be based on actual field transmission measurements
of the Telecom Facility operating at its maximum effective radiated power level, rather than on
estimations or computer projections. If the report shows that the Telecom Facility does not
comply with the FCC's 'General Population /Uncontrolled Exposure' standard as defined in 47
C.F.R. § 1.1310 Note 2 to Table 1, the Director shall require that use of the Telecom Facility be
suspended until a new report has been submitted confirming such compliance.
Upon any proposed increase of at least ten percent (10 %) in the effective radiated power or any
proposed change in frequency use of the Telecom Facility by the Telecom Operator, the
Telecom Operator shall be required to provide an updated, certified radio frequency (RF)
compliance and RF emissions safety report.
A qualified independent radio frequency engineer selected and under contract to the City, may
be retained to review said certifications for compliance with FCC regulations. All costs
associated with the City's review of these certifications shall be the responsibility of the
permittee, which shall promptly reimburse City for the cost of the review.
20.49.120 — Right to Review or Revoke Permit.
The reservation of right to review any permit for a Telecom Facility granted by the City is in
addition to, and not in lieu of, the right of the City to review and revoke or modify any permit
granted or approved hereunder for any violations of the conditions imposed on such permit.
20.49.130— Removal of Telecom Facilities.
A. Discontinued Use. Any Telecom Operator who intends to abandon or discontinue use of a
Telecom Facility must notify the Community Development Director by certified mail no less
than thirty (30) days prior to such abandonment or discontinuance of use. The Telecom
Operator or owner of the affected real property shall have ninety (90) days from the date of
abandonment or discontinuance, or a reasonable additional time as may be approved by
the Community Development Director, within which to complete one of the following
actions:
1. Reactivate use of the Telecom Facility.
2. Transfer the rights to use the Telecom Facility to another Telecom Operator and the
Telecom Operator immediately commences use within a reasonable period of time as
determined by the Community Development Director.
3. Remove the Telecom Facility and restore the site.
B. Abandonment. Any Telecom Facility that is not operated for transmission and /or reception
for a continuous period of ninety (90) days or whose Telecom Operator did not remove the
Telecom Facility in accordance with Subsection A shall be deemed abandoned. Upon a
finding of abandonment, the City shall provide notice to the Telecom Operator last known
Page 119
to use such Facility and, if applicable, the owner of the affected real property, providing
thirty days from the date of the notice within which to complete one of the following
actions:
1. Reactivate use of the Telecom Facility.
2. Transfer the rights to use the Telecom Facility to another Telecom Operator who has
agreed to reactivate the Telecom Facility within 30 days of the transfer.
3. Remove the Telecom Facility and restore the site.
C. RemovalbyCity.
1. The City may remove an abandoned Telecom Facility, repair any and all damage to the
premises caused by such removal, and otherwise restore the premises as is appropriate
to be in compliance with applicable codes at any time after thirty (30) days following the
notice of abandonment.
2. If the City removes an abandoned Telecom Facility, the City may, but shall not be
required to, store the removed Telecom Facility or any part thereof. The owner of the
premises upon which the abandoned Telecom Facility was located and all prior
operators of the Telecom Facility shall be jointly liable for the entire cost of such
removal, repair, restoration and storage, and shall remit payment to the City promptly
after demand therefore is made. In addition, the City Council, at its option, may utilize
any financial security required in conjunction with granting the telecom permit as
reimbursement for such costs. Also, in lieu of storing the removed Telecom Facility, the
City may convert it to the City's use, sell it, or dispose of it in any manner deemed by the
City to be appropriate.
D. City Lien on Property. Until the cost of removal, repair, restoration, and storage is paid in
full, a lien shall be placed on the abandoned personal property and any real property on
which the Telecom Facility was located for the full amount of the cost of removal, repair,
restoration and storage. The City Clerk shall cause the lien to be recorded with the Orange
County Recorder, with the costs of filing, processing, and release of such City Lien being
added to the other costs listed in this subsection.
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