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HomeMy WebLinkAbout14 - Wireless Telecommunications Ordinance PA2012-057SEW PpRr p� � iT P q< /PORN TO: CITY OF NEWPORT BEACH City Council Staff Report Agenda Item No. 14 January 14, 2014 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Community Development Department Kimberly Brandt, AICP, Director 949 - 644 -3226, kbrandt @newportbeachca.gov PREPARED BY: James Campbell, Principal Planner APPROVED:. TITLE: Wireless Telecommunications Facilities Ordinance Code Amendment No. CA2012 -004 (PA2012 -057) ABSTRACT The Ordinance would modernize regulations regarding wireless telecommunications facilities. Regulations currently in Chapter 15.70 would be rescinded in its entirety and replaced by Chapter 20.49 within the Zoning Code. RECOMMENDATION 1. Conduct a public hearing; and 2. Introduce Ordinance No. 2014 -1 (Attachment No. A), and pass to second reading on January 28, 2014; a) Finding that the amendment is exempt from the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines; and b) Approving Code Amendment No. CA2012 -004. FUNDING REQUIREMENTS There is no fiscal impact related to this item. 1 Wireless Telecommunications Facilities Ordinance January 14, 2014 Page 2 DISCUSSION Introduction The current telecommunications ordinance was adopted in late 2002, and at that time, state and federal law suggested cities were somewhat limited in how telecommunications facilities could be regulated. Both state and federal law have changed since and the current ordinance needs to be updated for consistency. More recent case law favors appropriate local control to ensure the compatibility of telecommunications facilities with surrounding land uses. Under existing regulations, all proposed telecommunications facilities require the approval of a Telecom Permit application. When a proposed application is found to comply with Chapter 15.70 of the Municipal Code, the application is administratively approved by the Community Development Director. The City Council reviews applications that do not meet height, location and /or design standards, and those applications that are more noticeable and visually conspicuous. Neither review process requires a public notice or a public hearing. When the City Council initiated this amendment back in March of 2012, the goal was to treat telecommunications facilities similar to other development applications by providing an appropriate public review processes consistent with state and federal law. The Planning Commission conducted two study sessions in 2012 and two study sessions in 2013. The Commission also conducted a noticed public hearing on October 21, 2013, and December 19, 2013. At the conclusion of the hearing, the Commission adopted a resolution recommending approval of Code Amendment No. CA2012 -004. New Ordinance The City cannot unreasonably discriminate among providers of functionally equivalent services; or prohibit or have the effect of prohibiting the provision of personal wireless services; or regulate the placement, construction, and modification of personal wireless facilities on the basis of the environmental effects of radio frequency (RF) emissions to the extent that such facilities comply with the Federal Communications Commission's (FCC) regulations concerning such emissions. Additionally, the City is now prohibited from denying a request to modify an existing facility when the modification does not substantially change the physical dimensions of a tower or base station. This prohibition also includes requests to collocate a new carrier at an existing facility. The proposed ordinance update is consistent with federal requirements. 2 Wireless Telecommunications Facilities Ordinance January 14, 2014 Page 3 The draft ordinance update establishes 5 classes of telecommunications facilities: A. Class 1 facilities are defined as "Stealth /Screened" and will be reviewed administratively by the Community Development Director. B. Class 2 facilities are defined as "Visible" and will be reviewed by the Zoning Administrator through the Minor Use Permit application process including a noticed public hearing. C. Class 3 facilities are defined as "Public Right -of -Way Installations" and will be reviewed by the Zoning Administrator through the Minor Use Permit application process including a noticed public hearing. D. Class 4 facilities are defined as "Freestanding Structures" and will be reviewed by the Planning Commission through the Conditional Use Permit application process including a noticed public hearing. E. Class 5 facilities are defined as "Temporary' and will be reviewed by the Zoning Administrator through the Limited Term Permit application process that will include a noticed public hearing if the duration of the facility exceeds 90 days. In summary, proposed facilities that would be visible will require review at a public hearing by the Zoning Administrator and the most visible will be reviewed by the Planning Commission. Proposed stealth facilities that have a no or negligible visual impact will continue to be reviewed administratively. The proposed ordinance also includes an administrative review process for the modification or collocation of existing telecommunications facilities consistent with federal regulations. The proposed ordinance maintains existing location and height standards. The ordinance also includes updated screening requirements for antennas and support equipment to reduce visual effects and promote compatibility. The proposed ordinance includes a new provision to review and evaluate potential impacts to public views and private views that are not protected. A steady comment from industry representatives involves a desire for increased access to residential neighborhoods. The current ordinance prohibits the installation of antennas on single - family residences, duplexes, and triplexes and the proposed update continues this policy. Coverage to these areas is afforded from nearby non - residential areas, multi - family zones, and the public right -of -way. The Planning Commission considered the industry's request and concluded that modifying current prohibitions was not necessary. Another comment from several industry representatives has been to establish an exemption for small cell sites. Staff and the Planning Commission also considered this request and concluded that it would favor one technology over others and could potentially discriminate among providers of functionally equivalent services. 3 Wireless Telecommunications Facilities Ordinance January 14, 2014 Page 4 In conclusion, the Planning Commission and Staff believe that the new ordinance will provide an appropriate review scheme taking into account the need to allow compatible telecommunications facilities while increasing public participation. ENVIRONMENTAL REVIEW This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. NOTICING Notice of this public hearing was published in the Daily Pilot as an eighth page advertisement, consistent with the provisions of the Municipal Code. Additionally, the agenda item has also been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Lastly, staff sent a courtesy notice by email to an interest group consisting largely of telecommunications industry representatives. Submitted by: �-/ Y��zK- Rimberly Brand , AICP Director 0 Wireless Telecommunications Facilities Ordinance January 14, 2014 Page 5 Attachments: A. Draft Ordinance B. Planning Commission Resolution Recommending Approval C. Planning Commission Record — hyperlinks provided a. Study Session staff report dated July 19, 2012 i. Minutes from July 19, 2012, meeting b. Study Session staff report dated September 6, 2012 i. Minutes from July 19, 2012, meeting c. Study Session staff report dated September 19, 2013 i. Minutes from September 19, 2013, meeting d. Study Session staff report dated October 17, 2013 i. Minutes from October 17, 2013, meeting e. Staff report dated November 21, 2013 i. Minutes from November 21, 2013, meeting f. Staff report dated December 19, 2013 5 Intentionally Blank Attachment A Draft Ordinance Intentionally Blank ORDINANCE NO.2014 - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH REPEALING CHAPTER 15.70 OF THE MUNICIPAL CODE AND ADOPTING ZONING CODE AMENDMENT NO. CA2012 -004 RELATED TO THE REGULATION OF WIRELESS TELECOMMUNICATIONS FACILITIES (PA2012 -057) :4xyrlr_��� WHEREAS, the City last comprehensively updated its regulations of wireless telecommunications facilities in 2002, and since that time, there has been advances in technology and changes in state, federal, and case laws that collectively necessitate updating the City's ordinances. WHEREAS, on March 27, 2012, the City Council initiated an amendment of the Municipal Code to comprehensively update the City's wireless telecommunications facilities ordinance. WHEREAS, the Planning Commission conducted study sessions on July 19, 2012, September b, 2012, September 19, 2013, and October 17, 2013, where potential changes to the ordinance were discussed. WHEREAS, the proposed amendment will provide a balanced review process consistent with existing procedures provided within the Zoning Code (Title 20). Proposed telecom facilities that are not visible will be permitted by the Zoning Clearance process. Proposed telecom facilities that would be visible will be subjected to either a Minor Use Permit or a Conditional Use Permit if a new free standing structure were proposed. WHEREAS, the proposed amendment does not increase the potential height of telecom facilities and does not allow them in areas where they are currently prohibited. WHEREAS, the proposed amendment includes adequate development and screening standards to ensure that future telecom facilities are visually compatibly with the community. WHEREAS, the proposed amendment includes provisions reflective of State and federal law that require administrative review of minor modifications to, or the collocation of, existing telecom facilities that are not modified substantially. WHEREAS, a public hearing was held on November 21, 2013, and December 19, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. At the 1- 9 conclusion of the public hearing, the Planning Commission voted unanimously (7 -0) to recommend adoption of Code Amendment No. CA2012 -004. THEREFORE, THE CITY COUNCIL OF NEWPORT BEACH DOES HEREBY ORDAIN AS FOLLOWS: Section 1: On the effective date of this Code Amendment, Chapter 15.70 of the Newport Beach Municipal Code is hereby repealed in its entirety. Section 2: Table 2 -1 within Section 20.18.020 (Residential Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions contained within Table 2 -1 remaining unchanged: Section 3: Table 2 -4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions contained within Table 2 -4 remaining unchanged: R -A R -1 R -BI RM Specific Use Specific Use OA OG R -2 RMD Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication CUP /MUP/ Chapter — MUP /CUP /LTP Chapter 20.49 Facilities LTP LTP LTP LTP Section 3: Table 2 -4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions contained within Table 2 -4 remaining unchanged: Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions contained within Table 2 -5 remaining unchanged: cc CG CM CN Specific Use Specific Use OA OG OM OR Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication CUP /MUP/ Chapter Telecommunication LTP Chapter 20.49 Facilities LTP LTP LTP LTP Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions contained within Table 2 -5 remaining unchanged: -2- 10 cc CG CM CN CV Specific Use Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Chapter Telecommunication LTP LTP LTP LTP LTP 20.49 Facilities -2- 10 Section 5: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions of Section 20.22.020 remaining unchanged: Section 6: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions of Section 20.22.020 remaining unchanged: MU -V MU -MM (b) MU -DW MU -CV /15th Specific Use MU W2 Regulations Wireless Telecommunication St. (7) Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ LTP Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities Section 6: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions of Section 20.22.020 remaining unchanged: Section 7: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions of Section 20.24.020 remaining unchanged: MU -W1 Specific Use Specific Use IG (5)(6) MU W2 Regulations Wireless Telecommunication Chapter 20.49 Telecommunication CUP /MUP/ CUP /MUP/ Chapter 20.49 Facilities LTP LTP Section 7: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions of Section 20.24.020 remaining unchanged: Section 8: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions of Section 20.26.020 remaining unchanged: -3- 11 Specific Use IG Regulations Wireless CUP /MUP/ Telecommunication Chapter 20.49 Facilities LTP Section 8: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to include the following text with all other provisions of Section 20.26.020 remaining unchanged: -3- 11 Section 9: The recitals provided in this ordinance are true and correct and are incorporated within the substantive portion of this ordinance. Section 10: Chapter 20.49 (Wireless Telecommunication Facilities) of the Newport Beach Municipal Code as is hereby added to read as follows: Chapter 20.49 — Wireless Telecommunications Facilities Sections 20.49.010 — Purpose 20.49.020 — Effect of Chapter 20.49.030 — Definitions 20.49.040 — Telecom Facility Preferences and Prohibitions 20.49.050 — General Development and Design Standards 20.49.060 — Permit Review Procedures 20.49.070 — Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 — Agreement for Use of City -owned or City -held Trust Property 20.49.090 — Modification and Collocation of Existing Telecom Facilities 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report 20.49.110 — Right to Review, Revoke or Modify a Permit 20.49.120 — 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 wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with State and federal law while ensuring public safety, minimizing the visual effects of Telecom Facilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the visual impacts of Telecom Facilities on the community. B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and minimize their visual impact on the community. -4- 12 Specific Use os PF Pi PR Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities Section 9: The recitals provided in this ordinance are true and correct and are incorporated within the substantive portion of this ordinance. Section 10: Chapter 20.49 (Wireless Telecommunication Facilities) of the Newport Beach Municipal Code as is hereby added to read as follows: Chapter 20.49 — Wireless Telecommunications Facilities Sections 20.49.010 — Purpose 20.49.020 — Effect of Chapter 20.49.030 — Definitions 20.49.040 — Telecom Facility Preferences and Prohibitions 20.49.050 — General Development and Design Standards 20.49.060 — Permit Review Procedures 20.49.070 — Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 — Agreement for Use of City -owned or City -held Trust Property 20.49.090 — Modification and Collocation of Existing Telecom Facilities 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report 20.49.110 — Right to Review, Revoke or Modify a Permit 20.49.120 — 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 wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with State and federal law while ensuring public safety, minimizing the visual effects of Telecom Facilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the visual impacts of Telecom Facilities on the community. B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and minimize their visual impact on the community. -4- 12 C. The provisions of this Chapter are not intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecommunication services. This Chapter shall be applied to providers, operators, and maintainers of telecommunication services regardless of whether authorized or by subject to State or federal regulations. This Chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecommunication services. 20.49.020 — Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities as defined herein and that provide wireless voice and/or data transmission such as, but not limited to, cell phone, internet, and radio relay stations. B. Permit and /or Agreement Required. Unless the provisions of this Chapter provide otherwise, prior to installation 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) in accordance with Section 20.49.060 (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 his or her designee prior to installation of the Facility, consistent with Section 20.49.080 (Agreement for Use of City -owned or City -held Trust Property). C. Exempt Facilities. The following types of Telecom 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. 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. 5. Systems installed or operated at the direction of the City or its contractor. -5- 13 6. Systems installed entirely within buildings for the sole purpose of providing wireless telecommunications 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 any 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 was lawfully constructed, erected, or approved prior to [INSERT 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 deemed a legal nonconforming Facility. Legal nonconforming Facilities shall comply at all times with the laws, ordinances, regulations, and any conditions of approval in effect at the time the Facility was approved, and any regulations pertaining to legal, nonconforming uses or structures that may be applicable pursuant to provisions of the Municipal Code or federal and State laws as they may be amended or enacted, in the future. 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 and rotated through a vertical mast or tower interconnecting the beam and Antenna support structure, all of which elements are deemed to be part of the Antenna. -6- 14 C. Base Station. Base Station means the electronic equipment and appurtenant Support Equipment at a Telecom Facility installed and operated by the Telecom Operator that together perform the initial signal transmission and signal control functions. A Base Station does not include the Antennas, Antenna support structure, or any portion of Distributed Antenna System (DAS). D. 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. E. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. F. 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 "hub" or "hotel" where the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. G. Facility Classes. Classes of Telecom Facilities and the attendant Support Equipment are categorized into the following 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 Antennas): 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 7- 15 the approval of a Special Events Permit pursuant to Chapter 11.03 with or without a Limited Term Permit. H. FCC. FCC means the Federal Communications Commission, or 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. I 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. The definition of Operator or Telecom Operator does not include a property owner(s) that leases property to an Operator for a Telecom Facility. M. Public Right -of -Way. Public Right -of -Way or ( "PROW") means the improved or unimproved surface of any public 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. The PROW does not include private streets. 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 such as 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 reasonable observer do not qualify within this definition. For example, an artificial tree may not be considered to be 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. -8- 16 P. Telecommunications) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunication (s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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 street light standard which is replaced with a new street light standard to permit the addition of Antennas shall not be considered a Wireless Tower, but rather a replacement street light standard. 20.49.040 - Telecom Facility Preferences and Prohibited Locations 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 of Facilities, from the most preferred (1) to lease preferred (4). 1. Collocation of a new Facility at an existing Facility. 2. Class 1. 3. Class 2 and Class 3. 4. Class 4. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: 1. On properties zoned for single -unit or two -unit residential development including equivalent designations within a Planned Community District or Specific Plan -9- 17 districts except if located on common area lots developed with community facilities, landscape lots, or private streets. 2. On properties zoned for multi -unit residential development and mixed -use development including equivalent Planned Community District or Specific Plan districts 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 Facility. 4. On traffic control standards (traffic signal poles). 20.49.050 — 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 Facility as visually inconspicuous as practicable. To the greatest extent Feasible, Facilities shall be designed to minimize the visual impact of the Facility by means of location, placement, height, screening, landscaping, and 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 Facility, including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop. 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 Facilities at the proposed location. -10- 18 B. Public View Protection. All new or modified Telecom Facilities, whether approved by administrative or discretionary review, shall comply with Section 20.30.100 (Public View Protection). Additionally, potential impacts from a new or modified Telecom Facility to public views that are not identified by General Plan Policy NR 20.3 shall be evaluated to determine if inclusion in Policy NR 20.3 would be appropriate. If deemed appropriate for inclusion, the potential impacts to such public views shall be considered. C. Height. 1. The Planning Commission or City Council may approve or conditionally approve a CUP for a Telecom Facility that exceeds the maximum height limit for the zoning district in which the Facility is located provided it does not exceed the maximum height limit by 15 feet, only after making all of the required findings in Section 20.49.060(H) (Permit Review Procedures). 2. All Telecom Facilities shall comply with height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport Environs Land Use Plan for John Wayne Airport and Airport Land Use Commission Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. 3. Telecom Facilities installed on streetlights, 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. 4. 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 proposed Antennas do not extend above the top of the Utility Pole or Utility Tower. 5. Telecom Facilities disguised as flagpoles may be installed provided they meet applicable height limits for flagpoles provided in Section 20.30.060. D. Setbacks. Proposed Telecom Facilities shall comply with the required setback established by the development standards for the zoning district in which the Facility is proposed to be located. Setbacks shall be measured from the any part of the 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 harmony and scale with the surrounding area, screens the installation from view, and prevents the 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. -11- 19 2. Painting and /or coloring the Telecom Facility to blend into the predominant visual backdrop. 3. Siting the Telecom Facility to utilize existing features (such as buildings, topography, vegetation, etc.) to screen or hide the 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 Facility would not create greater visual impacts than the Facility itself. 6. To the greatest extent practicable, new Class 4 Facilities shall be designed and sited to facilitate the collocation of one additional Telecom Operator. 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 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 must be considered for all Facility installations: 1. Class 1 (Stealth /Screened) Installations: a. All Telecom Facility components, including all Antennas, Antenna panels, cables, wires, conduit, mounting brackets, and Support Equipment, shall be fully screened, and mounted either inside the building or structure, or behind 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. When a Telecom Facility is proposed within an existing or new architectural feature such as a steeple, religious symbol, tower, cupola, clock tower, sign tower, etc., the Facility shall be architecturally compatible with the existing structure or building. 2. Class 2 (Visible) 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, -12- 20 wires, conduit, mounting brackets or any other associated support equipment shall be visible. 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) Installations: a. Whenever Feasible, new Antennas proposed to be installed in the public right -of -way shall be placed on existing utility structures, streetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles, 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. New or replacement vertical structures may be allowed when authorized by the Municipal Code and approved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed provided they match existing or planned poles within the area. c. 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 pole. 4. Class 4 (Freestanding Structure) Installations: a. The installation of new Lattice Towers or Monopoles with visible antennas or Antenna Arrays is strongly discouraged due to the visual effects of such facilities. Preferred Monopole designs include fully screened Antennas without visible brackets, cables, or conduit. Additionally, any Lattice Tower or Monopole should be sited in the least obtrusive location as practicable. b. The construction of new freestanding structures such as signs, monoliths, pyramids, light houses, or other similar vertical structures shall be designed and sited to appropriately complement a site and screen all elements of the Telecom Facility. c. The installation of artificial rocks shall match in scale and color other with rock outcroppings in the general vicinity of the proposed site. An artificial rock screen may not be considered appropriate in areas that do not have natural rock outcroppings. -13- 21 d. The installation of artificial trees or shrubbery is strongly discouraged if they are obviously not natural to the average reasonable observer. When an artificial tree or shrubbery is proposed, it 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. All Antennas and Antenna supports shall be contained within the canopy of the tree design or other vegetation comparable to that being replicated by the proposed screening elements. Finally, the addition of new comparable living vegetation may be necessary to enhance the artificial tree or shrubbery screening elements. e. Flagpoles 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. Class 5 (Temporary) Installations: 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 application review and permitting process in consideration of the temporary nature of the Facility. b. Support Equipment. All Support Equipment associated with the operation of any Telecom Facility shall be placed or mounted in the least visually obtrusive location practicable, 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 Telecom Facilities. For building or structure - mounted Antenna installations, Support Equipment for the Facility may be located inside the building, in an underground vault, or on the roof of the building that the 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. (2) Roof - Mounted Telecom Facilities. All screening materials for roof - mounted 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. -14- 22 (3) Freestanding Telecom Facilities. For freestanding Facilities installations, not mounted on a building or structure, Support Equipment for the 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. (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. (b) 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 existing utilities services (e.g., telephone, power, cable TV) are located underground, the Support Equipment shall be placed underground if required by other provisions of the Municipal Code. 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 provided they meet applicable standards of Title 13 unless otherwise precluded by the Municipal Code. (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 utility or streetlight pole without materially increasing the pole diameter or shall be installed in the vault enclosure supporting the Facility. -15- 23 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 United States Flag Code (4 U.S.C. § 1 et seq.). 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 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. I. Nonconformities. A proposed or modified 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 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 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, dying, or damaged. 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 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.). 20.49.060 — Permit Review Procedures A. Application Procedures. Applications for Telecom Facilities shall be subject to Chapters 20.50 (Permit Application Filing and Processing), 20.52 (Permit Review Procedures), and 20.54 (Permit Implementation, Time Limits, and Extensions) unless otherwise modified by this Section. Applications shall be processed consistent with State and federal regulations as the same may be amended from -16- 24 time to time such as the application processing times set forth in FCC Declaratory Ruling FCC 09 -99. All costs associated with the permit application review shall be the responsibility of the applicant, including any expense incurred by the City for outside third -party technical review required by the application. B. 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 the Municipal Code including but not limited to the provisions of Title 13 as it may be amended from time to time. C. Application Submission Requirements for Telecom Facilities on City -owned or City - held Trust Properties. Prior to the submittal for any application for any Facility located on any City -owned property or City -held Trust Property, the applicant shall first obtain written consent to the application from the City Manager or his or her designee. D. Permit Required. All Telecom Facilities shall obtain a MUP, CUP, LTP, or ZC as provided for in Table 4 -1 unless prohibited by Section 20.49.040(B) . Notwithstanding permits identified in Table 4 -1, any application for a Facility that proposes to exceed the maximum height limit of the applicable zoning district in which the Facility is located shall require approval of a CUP by the Planning Commission. Table 4 -1 Permit Requirement for Telecom Facilities Facility Class Permit Class 1 ZC Class 2 MUP Class 3 MUP Class 4 CUP Class 5 LTP E. Review of Collocated Facilities. Notwithstanding any provision of this Chapter to the contrary, and consistent with California Government Code section 65850.6 (as amended or superseded), the addition of a new Facility to an existing Facility resulting in the establishment of a Collocated Telecom Facility shall be allowed without discretionary review if it complies with Section 20.49.090. If a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6 and Section 20.49.090, the Facility shall be reviewed pursuant the review procedures provided in Table 4 -1. F. 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 -17- 25 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 Facility will interfere with emergency communications devices, the applicant shall work with the Police Department to avoid interference. G. Public Notice and Public Hearing Requirements. An application for a MUP, CUP or LTP shall require public notice and a public hearing in accordance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all 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 findings: a. The proposed Telecom Facility is visually compatible with the surrounding neighborhood. b. The proposed Telecom Facility complies with 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. d. An alternative plan that would result in a higher preference Facility Class category for the proposed Facility is not available or reasonably Feasible and desirable under the circumstances. 2. Findings to Increase Height. The Planning Commission may approve, or conditionally approve an application for a Telecom Facility which includes a request to exceed the maximum height limit for the zoning district in which the Facility is located up to a maximum of 15 feet only after making each of the following findings in addition to the General findings set forth in 20.49.060 (H) (1) and 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. -18- 26 b. Establishment of the Telecom Facility at the requested height is necessary to provide service. 20.49.070 — 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). 20.49.080 — Agreement for Use of City -Owned or City -Held Trust Property An application 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 of the Municipal Code and any applicable provisions of the City Council Policy Manual. Prior to City approval of a license agreement, the applicant shall obtain a MUP, CUP, LTP or ZC. Upon the issuance of a MUP, CUP, LTP or ZC, as required, and with an approved license 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. 20.49.90 — Modification and Collocation of Existing Telecom Facilities Notwithstanding any provision in this Chapter, 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 administrative review and approval of a ZC without processing 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 (5 %) of the physical dimensions of the original approved Telecom Facility, or as otherwise defined by applicable provisions of State or federal law. Each application submitted under this section for a modification or collocation to an existing Telecom Facility shall be accompanied by: 1. A detailed description of the proposed modifications to the existing Telecom Facility(ies); -19- 27 2. A photograph or description of the Telecom Facility as originally constructed, if available; a current photograph of the existing Facility; and, a graphic depiction of the 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 removed and restored to its pre- modification condition if any material statement made with respect to the Facility application is false or the modifications as actually made would have required a discretionary review had the plan for the Facility accurately depicted the modifications. 20.49.100 — 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. Upon the request, and at the discretion of, the Community Development Director, a radio frequency (RF) compliance and emissions report shall be prepared by a qualified RF engineer acceptable to the City and submitted. The RF compliance and emissions report must demonstrate that the Facility is operating at the approved 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 Facility operating at its maximum effective radiated power level, rather than on estimations or computer projections. If the report shows that the 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 use of the Facility be suspended until a new report has been submitted confirming such compliance. 20.49.110 — Right to Review, Revoke or Modify a 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- 28 20.49.120 — 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 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 to use such Facility and, if applicable, the owner of the affected real property, providing thirty days from the date of the abandonment 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 Facility within 30 days of the transfer. 3. Remove the Telecom Facility and restore the site. C. Removal by City. 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 Facility or any part thereof. The owner of the premises upon which the abandoned Facility was located and all prior operators of the 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 Facility, the -21- 29 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 all costs incurred by the City for the 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. Section 11: Section 20.52.040(D) of the Newport Beach Municipal Code is hereby amended to include the following allowed limited duration use with all other provisions of Section 20.52.040.D remaining unchanged: 8. Telecommunications Facilities. A temporary telecommunications facility may be approved consistent with Chapter 20.49 for up to 12 months. Extensions of time shall be consistent with Section 20.52.040(J). Section 12: This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. Section 13: Telecom Permit applications submitted prior to the effective date of this ordinance may be processed and approved consistent with all applicable provisions of the Municipal Code including Chapter 15.70 in effect on the date prior to the effective date of this ordinance. Section 14: If any section, subsection, sentence, clause or phrase of this ordinance is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this ordinance. The City Council hereby declares that it would have passed this ordinance, and each section, subsection, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases be declared unconstitutional. Section 15: The Mayor shall sign and the City Clerk shall attest to the passage of this ordinance. The City Clerk shall cause the ordinance, or a summary thereof, to be published in the official newspaper of the City, and it shall be effective thirty (30) days after its adoption. -22- 30 This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 14th day of January, 2014, and adopted on the _ day of 2014, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES, COUNCILMEMB ABSENT COUNCILMEMBERS MA ATTEST: Rush N. Hill, II LEILANI I. BROWN, CITY CLERK APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE AARON C. HARP, CITY ATTORNEY -23- 31 Intentionally Blank 32 Attachment B Planning Commission Resolution Recommending Approval (unsigned) 33 Intentionally Blank 34 RESOLUTION NO. 1927 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING CITY COUNCIL ADOPTION OF CODE AMENDMENT NO. CA2012 -004 RELATED TO THE REGULATION OF WIRELESS TELECOMUNICATIONS FACILITIES (PA2012 -057) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. On March 27, 2012, the City Council initiated an amendment of the Municipal Code to comprehensively update the City's wireless telecommunications facilities ordinance. 2. The Planning Commission conducted study sessions on July 19, 2012, September 6, 2012, September 19, 2013, and October 17, 2013, where potential changes to the ordinance were discussed. 3. A public hearing was held on November 21, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. 60 01x0 19 lei 0W Ky_ 1Ii11.1:401ii+_19:1►►•u:z•]►1wia01IFTA K•me1IrILTNTIT l■.»rr21:4Auor_11 ffQ011 This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. SECTION 3. FINDINGS. 1. The proposed amendment will provide a balanced review process consistent with existing procedures provided within the Zoning Code (Title 20). Proposed telecom facilities that are not visible will be permitted by the Zoning Clearance process. Proposed telecom facilities that would be visible will be subject to either a Minor Use Permit or a Conditional Use Permit if a new free standing structure is proposed. 2. The proposed amendment does not increase the potential height of telecommunications facilities and does not allow them in areas where they are currently prohibited. 35 Planning Commission Resolution No. 1927 Paqe 2 of 21 3. The proposed amendment includes adequate design, development, and screening standards to ensure that future telecommunications facilities are visually compatible with the community. 4. The proposed amendment includes provisions reflective of state and federal law and provides for the administrative review of minor modifications to, or the collocation of, existing telecommunications facilities. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby recommends approval of Code Amendment No. CA2012 -004 as set forth in Exhibit "A." PASSED, APPROVED AND ADOPTED THIS 19TH DAY OF DECEMBER, 2013. AYES: Ameri, Brown, Hillgren, Kramer, Lawler, Myers, Tucker NOES: ABSTAIN: ABSENT: BY: ffis Bradley Hillgren, Chairman Kory Kramer, Secretary 36 Planning Commission Resolution No. 1927 Paqe 3 of 21 EXHIBIT A Code Amendment No. CA2012 -004 Section 1: On the effective date of this Code Amendment, Chapter 15.70 of the Newport Beach Municipal Code is hereby repealed. Section 2: Table 2 -1 within Section 20.18.020 (Residential Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -1 remaining unchanged: Section 3: Table 2 -4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2 -4 remaining unchanged: R -A R -1 R -BI RM Specific Use Specific Use cc R -2 RMD Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication — — — MUP /CUP /LTP Chapter 20.49 Facilities LTP LTP 20.49 Facilities Section 3: Table 2 -4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2 -4 remaining unchanged: Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: OA OG OM OR Specific Use Specific Use cc CG CM Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities LTP LTP 20.49 Facilities Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: 37 Specific Use cc CG CM CN CV Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Chapter Telecommunication LTP LTP LTP LTP LTP 20.49 Facilities Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: 37 Planning Commission Resolution No. 1927 Page 4 of 21 Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: MU -V MU -MM (6) MU -DW MU -CV /15th Specific Use MU W2 Regulations Wireless CUP /MUP/ St. (7) Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ LTP Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: MU -W1 Specific Use Specific Use IG (5)(6) MU W2 Regulations Wireless CUP /MUP/ CUP /MUP/ Chapter 20.49 Telecommunication LTP CUP /MUP / Chapter 20.49 Facilities LTP LTP LTP Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use IG Regulations Wireless CUP /MUP/ PF Telecommunication PR Chapter 20.49 Facilities LTP CUP /MUP / Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: RM Specific Use Os PF PI PR Regulations Wireless CUP /MUP/ CUP /MUP / CUP /MUP/ CUP /MUP/ Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities RM Planning Commission Resolution No. 1927 Pacle 5 of 21 Section 7: Chapter 20.49 (Wireless Telecommunication Facilities) of the Newport Beach Municipal Code as is hereby adopted as shall read as follows: Chapter 20.49 — Wireless Telecommunications Facilities Sections 20.49.010 — Purpose 20.49.020 — Effect of Chapter 20.49.030 — Definitions 20.49.040 — Telecom Facility Preferences and Prohibitions 20.49.050 — General Development and Design Standards 20.49.060 — Permit Review Procedures 20.49.070 — Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 — Agreement for Use of City -owned or City -held Trust Property 20.49.090 — Modification and Collocation of Existing Telecom Facilities 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report 20.49.110 — Right to Review, Revoke or Modify a Permit 20.49.120 — 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 wireless telecommunication facilities ( "Telecom Facilities') on public and private property consistent with State and federal law while ensuring public safety, minimizing the visual effects of Telecom Facilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the visual impacts of Telecom Facilities on the community. B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and minimize their visual impact on the community. C. The provisions of this Chapter are not intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecommunication services. This Chapter shall be applied to providers, operators, and maintainers of telecommunication services regardless of whether authorized or by subject to State or federal regulations. This Chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecommunication services. 20.49.020 — Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities as defined herein and that provide wireless voice and /or data transmission such as, but not limited to, cell phone, internet, and radio relay stations. 39 Planning Commission Resolution No. 1927 Paqe 6 of 21 B. Permit and /or Agreement Required. Unless the provisions of this Chapter provide otherwise, prior to installation 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) in accordance with Section 20.49.060 (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 his or her designee prior to installation of the Facility, consistent with Section 20.49.080 (Agreement for Use of City -owned or City -held Trust Property). C. Exempt Facilities. The following types of Telecom 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. 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. 5. 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 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 any 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: M Planning Commission Resolution No. 1927 Pacle 7 of 21 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 was lawfully constructed, erected, or approved prior to [INSERT 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 deemed a legal nonconforming Facility. Legal nonconforming Facilities shall comply at all times with the laws, ordinances, regulations, and any conditions of approval in effect at the time the Facility was approved, and any regulations pertaining to legal, nonconforming uses or structures that may be applicable pursuant to provisions of the Municipal Code or federal and State laws as they may be amended or enacted, in the future. 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 and rotated through a vertical mast or tower interconnecting the beam and Antenna support structure, all of which elements are deemed to be part of the Antenna. C. Base Station. Base Station means the electronic equipment and appurtenant Support Equipment at a Telecom Facility installed and operated by the Telecom Operator that together perform the initial signal transmission and signal control functions. A Base Station does not include the Antennas, Antenna support structure, or any portion of Distributed Antenna System (DAS). D. 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. E. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. F. 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 "hub" or "hotel" where 41 Planning Commission Resolution No. 1927 Paqe 8 of 21 the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. G. Facility Classes. Classes of Telecom Facilities and the attendant Support Equipment are categorized into the following 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 Antennas): 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 with or without a Limited Term Permit. H. FCC. FCC means the Federal Communications Commission, or 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. The definition of Operator or Telecom Operator does not include a property owner(s) that leases property to an Operator for a Telecom Facility. 42 Planning Commission Resolution No. 1927 Paqe 9 of 21 M. Public Right -of -Way. Public Right -of -Way or ( "PROW ") means the improved or unimproved surface of any public 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. The PROW does not include private streets. 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 such as 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 reasonable observer do not qualify within this definition. For example, an artificial tree may not be considered to be 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. Telecom munication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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 street light standard which is replaced with a new street light standard to permit the addition of Antennas shall not be considered a Wireless Tower, but rather a replacement street light standard. 43 Planning Commission Resolution No. 1927 Page 10 of 21 20.49.040 — Telecom Facility Preferences and Prohibited Locations 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 of Facilities, from the most preferred (1) to lease preferred (4). 1. Collocation of a new Facility at an existing Facility. 2. Class 1. 3. Class 2 and Class 3. 4. Class 4. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: 1. On properties zoned for single -unit or two -unit residential development including equivalent designations within a Planned Community District or Specific Plan districts except if located on common area lots developed with community facilities, landscape lots, or private streets. 2. On properties zoned for multi -unit residential development and mixed -use development including equivalent Planned Community District or Specific Plan districts 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 Facility. 4. On traffic control standards (traffic signal poles). 20.49.050 — 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 Facility as visually inconspicuous as practicable. To the greatest extent Feasible, Facilities shall be designed to minimize the visual impact of the Facility by means of location, placement, height, screening, landscaping, and 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. Planning Commission Resolution No. 1927 Page 11 of 21 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 Facility, including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop. 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 Facilities at the proposed location. B. Public View Protection. All new or modified Telecom Facilities, whether approved by administrative or discretionary review, shall comply with Section 20.30.100 (Public View Protection). Additionally, potential impacts from a new or modified Telecom Facility to public views that are not identified by General Plan Policy NR 20.3 shall be evaluated to determine if inclusion in Policy NR 20.3 would be appropriate. If deemed appropriate for inclusion, the potential impacts to such public views shall be considered. C. Height. 1. The Planning Commission or City Council may approve or conditionally approve a CUP for a Telecom Facility that exceeds the maximum height limit for the zoning district in which the Facility is located provided it does not exceed the maximum height limit by 15 feet, only after making all of the required findings in Section 20.49.060(H) (Permit Review Procedures). 2. All Telecom Facilities shall comply with height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport Environs Land Use Plan for John Wayne Airport and Airport Land Use Commission Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. 3. Telecom Facilities installed on streetlights, 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. 4. 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 proposed Antennas do not extend above the top of the Utility Pole or Utility Tower. 5. Telecom Facilities disguised as flagpoles may be installed provided they meet applicable height limits for flagpoles provided in Section 20.30.060. 45 Planning Commission Resolution No. 1927 Page 12 of 21 D. Setbacks. Proposed Telecom Facilities shall comply with the required setback established by the development standards for the zoning district in which the Facility is proposed to be located. Setbacks shall be measured from the any part of the 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 harmony and scale with the surrounding area, screens the installation from view, and prevents the 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. 2. Painting and /or coloring the Telecom Facility to blend into the predominant visual backdrop. 3. Siting the Telecom Facility to utilize existing features (such as buildings, topography, vegetation, etc.) to screen or hide the 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 Facility would not create greater visual impacts than the Facility itself. 6. To the greatest extent practicable, new Class 4 Facilities shall be designed and sited to facilitate the collocation of one additional Telecom Operator. 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 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 must be considered for all Facility installations: 1. Class 1 (Stealth /Screened) Installations: a. All Telecom Facility components, including all Antennas, Antenna panels, cables, wires, conduit, mounting brackets, and Support Equipment, shall be fully screened, and mounted either inside the building or structure, or behind 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. Planning Commission Resolution No. 1927 Page 13 of 21 c. When a Telecom Facility is proposed within an existing or new architectural feature such as a steeple, religious symbol, tower, cupola, clock tower, sign tower, etc., the Facility shall be architecturally compatible with the existing structure or building. 2. Class 2 (Visible) 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, wires, conduit, mounting brackets or any other associated support equipment shall be visible. 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) Installations: a. Whenever Feasible, new Antennas proposed to be installed in the public right -of -way shall be placed on existing utility structures, streetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles, 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. New or replacement vertical structures may be allowed when authorized by the Municipal Code and approved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed provided they match existing or planned poles within the area. c. 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 pole. 4. Class 4 (Freestanding Structure) Installations: a. The installation of new Lattice Towers or Monopoles with visible antennas or Antenna Arrays is strongly discouraged due to the visual effects of such facilities. Preferred Monopole designs include fully screened Antennas without visible brackets, cables, or conduit. Additionally, any Lattice Tower or Monopole should be sited in the least obtrusive location as practicable. 47 Planning Commission Resolution No. 1927 Page 14 of 21 b. The construction of new freestanding structures such as signs, monoliths, pyramids, light houses, or other similar vertical structures shall be designed and sited to appropriately complement a site and screen all elements of the Telecom Facility. c. The installation of artificial rocks shall match in scale and color other with rock outcroppings in the general vicinity of the proposed site. An artificial rock screen may not be considered appropriate in areas that do not have natural rock outcroppings. d. The installation of artificial trees or shrubbery is strongly discouraged if they are obviously not natural to the average reasonable observer. When an artificial tree or shrubbery is proposed, it 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. All Antennas and Antenna supports shall be contained within the canopy of the tree design or other vegetation comparable to that being replicated by the proposed screening elements. Finally, the addition of new comparable living vegetation may be necessary to enhance the artificial tree or shrubbery screening elements. e. Flagpoles 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. Class 5 (Temporary) Installations: 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 application review and permitting process in consideration of the temporary nature of the 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 practicable, 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 Telecom Facilities. For building or structure- mounted Antenna installations, Support Equipment for the Facility may be located inside the building, in an underground vault, or on the roof of the building that the 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. (2) Roof - Mounted Telecom Facilities. All screening materials for roof - mounted Facilities shall be of a quality and design compatible with the architecture, color, texture and EM Planning Commission Resolution No. 1927 Page 15 of 21 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 Telecom Facilities. For freestanding Facilities installations, not mounted on a building or structure, Support Equipment for the 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. (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 existing utilities services (e.g., telephone, power, cable TV) are located underground, the Support Equipment shall be placed underground if required by other provisions of the Municipal Code. 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 provided they meet applicable standards of Title 13 unless otherwise precluded by the Municipal Code. (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 utility or streetlight pole without materially increasing the pole diameter or shall be installed in the vault enclosure supporting the Facility. M Planning Commission Resolution No. 1927 Page 16 of 21 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 United States Flag Code (4 U.S.C. § 1 et seq.). 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 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. I. Nonconformities. A proposed or modified 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 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 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, dying, or damaged. 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 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 etseq.). 20.49.060 — Permit Review Procedures A. Application Procedures. Applications for Telecom Facilities shall be subject to Chapters 20.50 (Permit Application Filing and Processing), 20.52 (Permit Review Procedures), and 20.54 (Permit Implementation, Time Limits, and Extensions) unless otherwise modified by this Section. Applications shall be processed consistent with State and federal regulations as the same may be amended from time to time such as the application processing times set forth in FCC Declaratory 50 Planning Commission Resolution No. 1927 Page 17 of 21 Ruling FCC 09 -99. All costs associated with the permit application review shall be the responsibility of the applicant, including any expense incurred by the City for outside third -party technical review required by the application. B. 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 the Municipal Code including but not limited to the provisions of Title 13 as it may be amended from time to time. C. Application Submission Requirements for Telecom Facilities on City -owned or City -held Trust Properties. Prior to the submittal for any application for any Facility located on any City -owned property or City -held Trust Property, the applicant shall first obtain written consent to the application from the City Manager or his or her designee. D. Permit Required. All Telecom Facilities shall obtain a MUP, CUP, LTP, or ZC as provided for in Table 4 -1 unless prohibited by Section 20.49.040(B) . Notwithstanding permits identified in Table 4 -1, any application for a Facility that proposes to exceed the maximum height limit of the applicable zoning district in which the Facility is located shall require approval of a CUP by the Planning Commission. Table 4 -1 Permit Requirement for Telecom Facilities Facility Class Permit Class 1 ZC Class 2 MUP Class 3 MUP Class CUP Class 5 LTP E. Review of Collocated Facilities. Notwithstanding any provision of this Chapter to the contrary, and consistent with California Government Code section 65850.6 (as amended or superseded), the addition of a new Facility to an existing Facility resulting in the establishment of a Collocated Telecom Facility shall be allowed without discretionary review if it complies with Section 20.49.090. If a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6 and Section 20.49.090, the Facility shall be reviewed pursuant the review procedures provided in Table 4 -1. F. 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 Facility will interfere 51 Planning Commission Resolution No. 1927 Page 18 of 21 with emergency communications devices, the applicant shall work with the Police Department to avoid interference. G. Public Notice and Public Hearing Requirements. An application for a MUP, CUP or LTP shall require public notice and a public hearing in accordance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all 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 findings: a. The proposed Telecom Facility is visually compatible with the surrounding neighborhood. b. The proposed Telecom Facility complies with 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. d. An alternative plan that would result in a higher preference Facility Class category for the proposed Facility is not available or reasonably Feasible and desirable under the circumstances. 2. Findings to Increase Height. The Planning Commission may approve, or conditionally approve an application for a Telecom Facility which includes a request to exceed the maximum height limit for the zoning district in which the Facility is located up to a maximum of 15 feet only after making each of the following findings in addition to the General findings set forth in 20.49.060 (H) (1) and 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. b. Establishment of the Telecom Facility at the requested height is necessary to provide service. 52 Planning Commission Resolution No. 1927 Page 19 of 21 20.49.070 — 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). 20.49.080 — Agreement for Use of City -Owned or City -Held Trust Property An application 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 of the Municipal Code and any applicable provisions of the City Council Policy Manual. Prior to City approval of a license agreement, the applicant shall obtain a MUP, CUP, LTP or ZC. Upon the issuance of a MUP, CUP, LTP or ZC, as required, and with an approved license 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. 20.49.90 — Modification and Collocation of Existing Telecom Facilities Notwithstanding any provision in this Chapter, 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 administrative review and approval of a ZC without processing 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 (5 %) of the physical dimensions of the original approved Telecom Facility, or as otherwise defined by applicable provisions of State or federal law . Each application submitted under this section for a modification or collocation 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 Facility; and, a graphic depiction of the 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 53 Planning Commission Resolution No. 1927 Page 20 of 21 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 removed and restored to its pre- modification condition if any material statement made with respect to the Facility application is false or the modifications as actually made would have required a discretionary review had the plan for the Facility accurately depicted the modifications. 20.49.100 — 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. Upon the request, and at the discretion of, the Community Development Director, a radio frequency (RF) compliance and emissions report shall be prepared by a qualified RF engineer acceptable to the City and submitted. The RF compliance and emissions report must demonstrate that the Facility is operating at the approved 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 Facility operating at its maximum effective radiated power level, rather than on estimations or computer projections. If the report shows that the 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 use of the Facility be suspended until a new report has been submitted confirming such compliance. 20.49.110 — Right to Review, Revoke or Modify a 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. 20.49.120 — 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. 54 Planning Commission Resolution No. 1927 Page 21 of 21 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 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 to use such Facility and, if applicable, the owner of the affected real property, providing thirty days from the date of the abandonment 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 Facility within 30 days of the transfer. 3. Remove the Telecom Facility and restore the site. C. Removal by City. 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 Facility or any part thereof. The owner of the premises upon which the abandoned Facility was located and all prior operators of the 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 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 all costs incurred by the City for the 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. 55 Intentionally Blank 0 Attachment C Planning Commission Record — hyperlinks provided where indicated a. Study Session staff report dated July 19, 2012: htt0: / /ecros.newi)ortbeachca.gov /Web /0/doc/354471 /Page1.aspx Minutes from July 19, 2012, meeting: htt0: / /ecros.newi)ortbeachca.gov /Web /DocView.asi)x ?id= 324841 &dbid =0 b. Study Session staff report dated September 6, 2012: httr)://ecms.newportbeachca.gov/Web/DocView.asr)x?id=354393 Minutes from July 19, 2012, meeting: htt0:/ /ecros. newr)ortbeachca.aov/W eb /DocView.asDx ?id= 321623 C. Study Session staff report dated September 19, 2013: httr)://ecms.newi)ortbeachca.gov/Web/O/doc/516892/Pagel.asl)x Minutes from September 19, 2013, meeting: htt0 : / /ecros.newi)ortbeachca.gov/W eb /DocView.asi)x ?id= 543629 &dbid =0 d. Study Session staff report dated October 17, 2013: htti)://ecms.newportbeachca.gov/Web/O/doc/540427/Pagel.asp x http://ecms.newportbeachca.gov/Web/O/doc/540430/Pagel.aspx Minutes from October 17, 2013, meeting: Attached e. Staff report dated November 21, 2013: httD: / /www.neWDortbeachca.aov /PLN /PLANNING COMMISSION /11 -21- 13/4.0 Wireless% 20Telecommunications% 20Facilities %20Ordinance %20UPdat e PA2012- 057.pdf Minutes from November 21, 2013, meeting: Attached Staff report dated December 19, 2013: htt0: / /www.newportbeachca.gov /PLN /PLANNING COMMISSION/12-19- 13/4.0 Wireless% 20Telecommunications% 20Facilities %20Ordinance %20Ui)dat e PA2012- 057.pdf 57 IV V VI PI1 NEWPORT BEACH PLANNING COMMISSION MINUTES CITY OF NEWPORT BEACH PLANNING COMMISSION MINUTES Council Chambers — 100 Civic Center Drive Thursday, October 17, 2013 REGULAR MEETING 6:30 p.m. CALL TO ORDER - The meeting was called to order at 6:30 p.m. PLEDGE OF ALLEGIANCE — Vice Chair Tucker ROLL CALL PRESENT: Ameri (arrived at 6:32 p.m.), Brown, Hillgren, Lawler, Myers, and Tucker ABSENT EXCUSED: Kramer 10/17/2013 Staff Present: Kimberly Brandt, Community Development Director, Leonie Mulvihill, Assistant City Attorney, Jim Campbell, Principal Planner, and Marlene Burns, Administrative Assistant PUBLIC COMMENTS Chair Hillgren invited those interested in addressing the Planning Commission 'on non - agenda items to do so at this time. There was no response and Chair Hillgren closed public comments. REQUEST FOR CONTINUANCES - None CONSENT ITEMS ITEM NO. 1 MINUTES OF OCTOBER 3, 2013 Recommended Action: Approve and file Chair Hillgren opened public comments. Seeing none, Chair Hillgren closed public comments. Commissioner Ameri arrived at this juncture (6:32 p.m.). Motion made by Commissioner Lawler and seconded by Commissioner Brown, carried (5 — 1) with Secretary Kramer absent to approve the minutes of October 3, 2013, as presented. AYES: Ameri, Brown, Hillgren, Lawler, and Myers NOES: None ABSTENTIONS: Tucker ABSENT: Kramer STUDY SESSION ITEM NO. 2 WIRELESS TELECOMMUNICATIONS FACILITIES ORDINANCE UPDATE (PA2012 -057) Site Location: Citywide Principal Planner Jim Campbell provided background noting that the item was discussed at length at a previous meeting and that the Commission gave clear direction at that time. He addressed the potential allowance of wireless facilities and antennas in residential areas noting that presently they are not allowed in Single - Family and Two - Family neighborhoods, although they are allowed in the public right -of -way in low density neighborhoods. He added that some cities allow them, subject to a Conditional Use Permit, in residential zones. He noted that staff recommendations are to continue to prohibit them in the R1 and R2 zones. Page 1 of 7 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/1712013 In response to Chair Hillgren's inquiry Principal Planner Campbell added that staff feels that good coverage is provided for by allowing facilities in public rights -of -way and in surrounding areas so that they are not needed in private residential lots. In reply to Commissioner Ameri's question regarding the City of Irvine, Principal Planner Campbell reported that telecom facilities are allowed in residential areas in Irvine by way of conditional use permits but that they have large setbacks so they are not typically found on single - family properties. Commissioner Ameri commented on the need to be consistent with other cities throughout the County. In response to Commissioner Brown's question regarding whether the owner of a property would be compensated for allowing wireless facilities on their property, Principal Planner Campbell reported that they would typically be compensated. Vice Chair Tucker commented on the need for clarifying existing language and wondered if wireless facilities are prohibited on lettered lots. Principal Planner Campbell reported that they are currently allowed on lettered lots or common area lots. Commissioner Amer! indicated that it would be up to the land owner to choose and stated he would rather leave it to the homeowner associations, homeowners, and residents of the community to decide whether they want a wireless facility or not, as long as the City maintains control over approval. Chair Hlllgren invited public comments on the issue of potentially allowing facilities on R -1 and R -2 lots. Paul O'Boyle, Attorney representing Crown Castle, commented on a tiered process with small -cell facilities exceptions which are prominent throughout the State. From an industry standpoint, if antennas are not allowed in residential zones, they need to be covered by macro cell sites outside the zones. He noted that it does not pertain to just private property, but also the public right -of -way. He reported that his client works exclusive in the public right -of -way and as the ordinance stands presently, installations are allowed only in existing facilities. He listed nearby cities that allow wireless facilities in residential zones, by right and addressed the process used in the City of Costa Mesa. Vice Chair Tucker stated that what is being suggested is not installing facilities on private homes. Mr. O'Boyle stated that presently, wireless facilities on the public right -of -way are allowable under a CUP and that his client is requesting that it be allowed through an encroachment permit. Assistant City Attorney Leonia Mulvihill clarified that the Commission is considering whether to allow or prohibit facilities on residential lots. Mr. O'Boyle reported that telecommunications is a utility the same as electricity or water and that is the purpose of the public right -of -way. Vice Chair Tucker stressed that what is presently being considered is allowing facilities on residential lots, not to be confused with the public right -of -way. He added that it may not be a good idea and that the Commission is not prohibiting them from being on the public right -of -way and is discussing directing staff to look at other refinements relative to allowing them on lettered lots. Mr. O'Boyle stated that he is concerned about the public right -of -way and the way it is designed. He explained the tiered system and distinctions between macro systems and small -cell systems. Dean Brown, representing the California Wireless Association, noted that there are special circumstances where wireless facilities have been located on R1 and R2 zones. He added that staff has built in flexibility by allowing them in homeowner association lettered lots but there have been challenges because of their by- laws. He added that the future involved small -cell sites which can be inconspicuous and that there is a lot of demand for installing them in residential areas. Page 2 of 7 59 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/17/2013 Jim Mosher stated that the purpose of the matter is to correct existing deficiencies in the wireless code and stated that placing them in the public right -of -way may not be the best solution. He commented on his residential area and felt that homeowners would probably prefer to have a wireless facility installed in the nearby private park area (commonly -owned lot) but would probably not be allowed since the lot is zoned as R1. Chair Hillgren closed public comments. Vice Chair Tucker commented on the possibility of modifying the language for increased flexibility and make it inclusive enough where the facilities may be placed where coverage will be balanced. Chair Hillgren noted that the goal is to provide coverage in an area that is lacking and where there are gaps in coverage. He added that conditions could allow a variance or permit opportunity to install them in those areas. Principal Planner Campbell addressed collocation of cell sites including the current ordinance requirements. He added that as antennas get smaller, requiring collocation may not be practical. He reported that staff is recommending the possibility of eliminating that requirement and noted that Federal and State law encourage collocation and that is sufficient for the City's purposes. Vice Chair Tucker stated that he accepts eliminating the collocation requirement. Chair Hillgren invited public comments on the issue of collocation. Dean Brown stated that the California Wireless Association supports staffs recommendation. Chair Hillgren closed public comments. Principal Planner Campbell addressed public view protection including prior direction from the Commission that if there is an important public view not identified by the General Plan, it should be afforded some level of protection through evaluation of the site. He stated that staff recommends broadening existing draft language to reflect the same and include other public views. Vice Chair Tucker noted that there is a list of public view locations in the General Plan and stated there may be other views in the future. Direction was to include additional locations as identified in the future by the General Plan and Vice Chair Tucker suggested evaluating public views during the application process. As projects come in, there needs to be flexibility to evaluate public views that may not have been previously considered. Principal Planner Campbell stated the intent to modify the language such as if there is a public view identified in the review process; it could be afforded the same level of protection as those views listed in the General Plan. It was noted that if it is a General Plan view, whether now or in the future, it will be covered. The subject modification would relate to views not listed in the General Plan but identified in relation to specific applications. Assistant City Attorney Mulvihill indicated that she will work with staff to develop appropriate language for the ordinance. Chair Hillgren opened public comments related to public view protection. Dean Brown asked if there will be a map identifying additional public views other than those identified by the General Plan. Assistant City Attorney Mulvihill reiterated that she will work with staff to provide appropriate language reflecting the Commission's direction. Page 3 of 7 60 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/17/2013 Paul O'Boyle recommended using the views identified in the General Plan and suggested adding a safety valve for other views as recommended by staff for specific plans and considered by the Commission. Vice Chair Tucker noted that the views being considered are public views. Jim Mosher expressed concerns that the current code has strong protections against the impact of facilities on private as well as public views. He referenced his written comments relative to the process for problematic applications and protecting private interests. He added that staff is supposed to receive visual simulations of projects and that the City Council is supposed to consider the views from both public areas and private residences. He felt that the Commission should be able to deny a project based on obstruction of both public and private views. Chair Hillgren closed public comments. Discussion followed regarding protecting public views and whether or not to protect private views. Assistant City Attorney Mulvihill commented on a telecommunications facility project processed under the current ordinance and reported that Council considered whether or not to protect private views. She added that as the ordinance is being modified, it will be up to the Commission and Council whether or not to do so. She reported that staff is recommending not to protect private views in the future but rather to protect public views and expand on the latter. She stated that the City's tree maintenance policies consider private views but stated that it is difficult to enforce a code that would give each homeowner the ability to protect private views. Commissioner Brown noted concerns with setting precedent with protecting private views. Commissioner Ameri agreed that adding restrictive regulation regarding private views may not be the right thing to do, the public views need to be protected but that there should be a provision indicating that staff will consider private views during the application process. Vice Chair Tucker commented on challenges with protecting private views. Commissioner Ameri clarified his intent not to make it a part of the requirements but rather give consideration on a case -by -case basis. Commissioner Myers stated that he believes that some kind of tiered application process to facilitate smaller antennas makes sense and that keeping them off of single - family residences, as recommended by staff, is important. In response to Chair Hillgren's inquiry, Mr. Campbell reported that staff considers alternative placement through review of visual simulations. In relation to height, Principal Planner Campbell addressed current height limits and recommended maintaining the existing height standards in the current code and that requests for increasing height would need to be through a Conditional Use Permit or a variance process for extraordinary needs. Vice Chair Tucker stated that the findings will need to be considered, especially as they relate to CUPs and variances. Commissioner Myers indicated support for staffs recommendations. Chair Hillgren invited public comments regarding the height of facilities. There were no comments from the public and Chair Hillgren closed public comments. Mr. Campbell commented on the average telecom facility coverage and suggested the Community may desire "above average coverage ". He recommended removing that language and Members of the Commission concurred. Page 4 of 7 61 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/1712013 In regard to the emergency communications review, Principal Planner Campbell reported that staff has contacted the Fire and Police Departments and they want to continue performing emergency communications reviews. Therefore, staff is recommending no changes to the standard. Chair Hillgren invited public comments regarding emergency communications interference review. Dean Brown provided a brief history and noted that modern technology is not in conflict with emergency communications and that the wireless industry does not think it necessary. He added that it is burdensome to perform and that wireless facilities provide emergency service providers with its frequency so that interference will not occur. Director of Community Development Kimberly Brandt noted that the review does not add to the timeframe required for staff to complete its review. She did not feel it is a burdensome requirement as it only entails ensuring that frequencies are acceptable. Dean Brown commented on the need to contact the Fire and Police Departments specifically. Chair Hillgren closed public comments. Principal Planner Campbell addressed modification of existing facilities noting that the proposed ordinance would establish a five (5 %) percent threshold of change through an administrative zoning clearance process and stated that the industry is looking for a larger percentage for thresholds. He also reported that the Federal government has not established the definition for substantial alteration. He reiterated that staff is recommending a five (5 %) percent threshold of alteration above which, discretionary permits would be required. In response to Chair Hillgren's inquiry, Mr. Campbell stated that it would be five (5 %) percent of any dimension. Assistant City Attorney Mulvihill reported that it would be subject to change to comply with standards set by the Federal government, in the future. It was suggested to add the word, "dimension" to clarify the five (5 %) percent threshold and that the reference needs to be well- defined. Mr. Campbell stated that Federal law requires minor modifications to be approved administratively by the City. Assistant City Attorney Mulvihill added that the issue is subject to debate and that staff is carefully watching the Federal rule- making process. Chair Hillgren invited public comments on the modification of existing facilities. Jim Mosher stated that if companies have by right, the right to increase thresholds, it should be kept as low as possible. Mr. O'Boyle stated that it is ten (10 %) percent of the FCC's national guideline and that no matter what it is, if it exceeds an existing standard, it would need to go through the CUP process. Assistant City Attorney Mulvihill stated that staff would like to do that since it would add another review to the process. Chair Hillgren closed public comments. Mr. Campbell reported that current regulations require operators prepare a radio frequency (RF) compliance report within a particular timeframe and that while the industry feels it is unnecessary, staff feels that it is important to document. He noted staff recommends keeping the existing standard. Page 5 of 7 62 VIII. NEWPORT BEACH PLANNING COMMISSION MINUTES 10/1712013 Chair Hillgren invited public comments on the RF compliance report issue. Mr. Brown stated that it is the FCC's responsibility to enforce radio frequency emissions. He added that as more cell sites are built, actual power levels have been reduced significantly. He reported that if any wireless provider broadcasts outside of the frequency, they can lose their license for the entire region as well as if they exceed FCC requirements. He felt this is another unnecessary step. He added they submit a standard report to the FCC only if it does not meet requirements for exclusion and that typically, staff is not qualified to review them, but must hire a consultant to do so. Mr. O'Boyle stated that most small -cell facilities would operate at a fraction of what is required, that there are general standard reports that are produced and that site- specific reports are costly and are not necessary. Paul Ridgely suggested that it would be prudent to ask for the specific documentation that has been suggested and noted the importance of municipalities ensuring compliance. Jim Mosher agreed with industry experts that it would not be a useful exercise but stated it is a policy decision for consideration by Council since many residents express concerns regarding radio frequency emissions. Additionally, Mr. Mosher opined that the current ordinance is defective in terms of noticing requirements when applications are being made. He felt that the new one is better and indicated that the process would work better if the public is informed when an application is first being processed. He commented on previous cases where information provided at the beginning would have saved time in processing the application. Dean Brown commented on the overall purpose statement of the ordinance and suggested acknowledgement should be given to the critical role wireless technology plays in the City. Chair Hillgren closed public comments. Vice Chair Tucker commented on the rationale for providing the RF reports. Assistant City Attorney Mulvihill stated that because the City is precluded from evaluating or judging the appropriateness of facilities based on RF emissions, she noted that is what members of the public are concerned about so by requiring that facilities be in compliance with FCC guidelines, the City would have a responsibility to report to the public that everything possible has been done. She added that the City should know whether facilities are in compliance with FCC guidelines. Director of Community Development Brandt reported that it is not uncommon through the building permit process to require documentation proving compliance. It is an ongoing requirement and is required thirty (30) days after installation of the telecommunications facility. Chair Hillgren hoped that there would be a way to limit the amount of tests required. Mr. Campbell reported that he will incorporate the comments made at this time and will develop a revised draft to present to the Commission, in its entirety at the November 21, 2013, meeting. Vice Chair Tucker stated that it would be helpful to distribute the draft ordinance as soon as it is completed and review the same with industry experts before the meeting. Any Federal regulations made would need to be complied with. STAFF AND COMMISSIONER ITEMS ITEM NO. 3 MOTION FOR RECONSIDERATION - None ITEM NO. 4 COMMUNITY DEVELOPMENT DIRECTOR'S REPORT Committee Updates: Page 6 of 7 63 NEWPORT BEACH PLANNING COMMISSION MINUTES 10/17/2013 Land Use Element Amendment Advisory Committee Director of Community Development Brandt reported that the Land Use Element Amendment Advisory Committee met on October 1, 2013, and concluded discussions and recommendations with the proposed changes to the Land Use Element map. Information on the proposals is available on the City's website and the next meeting will be on November 5, 2013. 2. General Plan /Local Coastal Program Implementation Committee Director of Community Development Brandt reported that the General Plan /Local Coastal Program Implementation Committee met on September 25, 2013, and discussed potential amendments to the Coastal Zone boundaries as well as other policies. She reported an upcoming meeting on October 23, 2013, where it is anticipated that the California Coastal Commission Deputy Director will attend. ITEM NO. 5 ANNOUNCEMENTS ON MATTERS THAT THE PLANNING COMMISSION MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT - None ITEM NO. 6 REQUESTS FOR EXCUSED ABSENCES Commissioners Brown and Myers requested excused absences for the Planning Commission meeting of November 7, 2013. IX. ADJOURNMENT There being no further business to come before the Planning Commission, the meeting was adjourned at 8:02 p.m. The agenda for the Regular Meeting was posted on October 11, 2013, at 3:40 p.m., in the binder and on the City Hall Electronic Bulletin Board located in the entrance of the Council Chambers at 100 Civic Center Drive. Page 7 of 7 W 1T1 M NEWPORT BEACH PLANNING COMMISSION MINUTES CITY OF NEWPORT BEACH PLANNING COMMISSION MINUTES Council Chambers — 100 Civic Center Drive Thursday, November 21, 2013 REGULAR MEETING 6:30 p.m. CALL TO ORDER - The meeting was called to order at 6:30 p.m. PLEDGE OF ALLEGIANCE — Assistant City Attorney Leonie Mulvihill ROLL CALL PRESENT: Amed, Brown, Hillgren, Myers, and Tucker ABSENT EXCUSED: Kramer and Lawler 11/21/2013 Staff Present: Brenda Wisneski, Deputy Community Development Director; Leonie Mulvihill, Assistant City Attorney; Tony Brine, City Traffic Engineer; Jim Campbell, Principal Planner; Jaime Murillo, Senior Planner; Fern Nueno, Associate Planner; and Marlene Burns, Administrative Assistant PUBLIC COMMENTS Chair Hillgren invited those interested in addressing the Planning Commission to do so at this time. There was no response and Chair Hillgren closed the public comments period. REQUEST FOR CONTINUANCES - None CONSENT ITEMS ITEM NO. 1 MINUTES OF NOVEMBER 7. 2013 Chair Hillgren indicated that written comments were submitted by Mr. Jim Mosher with corrections to the subject minutes. Chair Hillgren opened public comments. Seeing none, Chair Hillgren closed the public comments period. Motion made by Vice Chair Tucker and seconded by Commissioner Ameri and carried (4 — 1 — 2) to approve the minutes of November 7, 2013, as corrected. AYES: Ameri, Brown, Hillgren, and Tucker NOES: None ABSTENTION: Myers ABSENT: Kramer and Lawler VII. PUBLIC HEARING ITEMS ITEM NO. 2 DAVIS LOT MERGER AND SETBACK DETERMINATION (PA2013 -176) Site Location: 6th Street and 524 West Ocean Front Associate Planner Fern Nueno presented a PowerPoint presentation and details of the report addressing location, existing conditions, typical lots in the area, and requirements of the Subdivision Ordinance. She noted staff review of the application and demolition of one unit prior to the recordation of the merger, and added that the merger would increase consistency with the Zoning Code for some of the standards including lot area and lot width minimum requirements. She reported that the merged lot would have alley access and that redevelopment of the lot would require vehicle access from the alley. She addressed parking, the curb Page 1 of 7 65 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/21/2013 cut, default setbacks, alternative setback determination requested by the applicant, rear and alley setbacks, views, lot development standards, and recommendations. In response to Vice Chair Tucker's inquiry regarding the setback along the alley, Ms. Nueno reported that the required setback is five (5) feet but is presently nonconforming at zero, and that correspondence was received indicating difficulty in making turns for personal and trash pickup vehicles. A five (5) foot setback would allow for increased maneuverability in the area. She added that the existing bollard mentioned in a correspondence letter is in the alley and that she will work with staff to see if something can be done to move the bollard off public property. In reply to Chair Hillgren's questions regarding setback allowances if the lots were not merged, Ms. Nueno indicated that the front setback would be eight (8) feet, the alley setback would be five (5) feet, and the side setbacks would be three (3) feet. Additionally she addressed staffs recommendation regarding the 10 -foot notch versus a 3 -foot notch and presented photos as examples of impacts to the view and discussed the increased building articulation and open space that would result from the 10 -foot notch. She noted variations in the lots in the area and commented on views from surrounding properties. Chair Hillgren commented on the applicant's request to retain the curb cut and Ms. Nueno stated that it exists. Removing the curb cut would increase available on- street parking and she noted applicable policies of the General Plan, Coastal Land Use Plan, and the Council Policy Manual requiring the elimination of curb cuts whenever feasible. Chair Hillgren invited the applicant to address the Commission. Bill Steele, Attorney for the Applicant, addressed the curb cut elimination and noted it is important to the design and use of the property to retain the curb cut on 6t" Street. He added that the proposal is to move it slightly to the north, which would provide one more on- street parking space. The subject property has a lot of frontage on 6" Street and little frontage on the alley so a three (3) or four (4) car garage cannot be built off the alley unless they provide tandem parking, which presents many challenges. He added that there is plenty of square footage on the lot for four (4) covered parking spaces but one access way is needed from the street. Mr. Steele referenced the policies and noted that the Commission has discretion to keep a curb cut and that the policies encourage protecting existing parking spaces as well as gains in parking. He addressed existing parking spaces, stated that the structure that will be demolished has no off - street parking, and that the proposal will provide a net gain to the City of two on- street parking spaces. Eric Moss, Architect, indicated that if the existing two -car garage is moved north into the merged lot, an additional parking space would be gained and another by the demolition of the existing structure. He stated that the proposal increases the feasibility of the project and commented on challenges with tandem parking in alleys. In response to an inquiry from Chair Hillgren regarding the setback determination, he stated preference for the 3 -foot notch. Chair Hillgren opened public comments. Sandy Davis, property owner, explained that the proposed modifications are to accommodate visits from her large family. Jim Mosher commented on the resolution and necessary approvals and wondered if the project will be submitted to the Coastal Commission for their determination. Paula Knight, neighbor, voiced support for the proposed project. Chair Hillgren closed the public comments period. Ms. Nueno stated that the project will be consistent with the Coastal Act and that a Coastal Development Permit will be required for any new development. In response to Chair Hillgren's inquiry regarding the curb cut, City Traffic Engineer Tony Brine reported that presently, without a plan being submitted, staff is basing the matter according to Council Policy L -2, which Page 2 of 7 66 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/21/2013 indicates that the curb cut on 6t" Street would not be allowed. When a project comes through, a condition would be included for the curb cut to be closed. Assistant City Attorney Mulvihill stated that Council Policy L -2 provides a provision that application of the policy is appealable to City Council. Deputy Community Development Director Brenda Wisneski noted that the findings must demonstrate how the project meets applicable policies. If the Commission were to allow the curb cut to remain that would need to be reflected and the Planning Commission does not have the discretion to eliminate or allow for curb cuts to be in place. Vice Chair Tucker noted the request before the Commission does not involve a house, but rather only involves a request to approve a lot merger. He added that there are conditions proposed to the lot merger, and suggested approving the lot merger. He added that the applicant could come back to the Planning Commission and seek to modify the conditions to the lot merger, specifically with respect to allowing a curb cut, when the applicant presents a plan for a house so any relief granted from the condition could be tied to an actual plan for a house. Deputy Community Development Director Wisneski stated that the Commission does not have the authority to override Council policies. However, the Commission may, when a plan for a house is presented, recommend a curb cut at a specific location based upon that plan. Discussion followed regarding whether the curb cut can be supported by staff. It was noted that the curb cut can remain until the process continues; until there is a permit to build a home. Motion made by Commissioner Brown and seconded by Commissioner Ameri and carried (5 — 2) to adopt a resolution approving Lot Merger No. LM2013 -003 and Staff Approval No. SA2013 -011. AYES: Ameri, Brown, Hillgren, Myers, and Tucker NOES: None ABSTENTIONS: None ABSENT: Kramer and Lawler ITEM NO. 3 MIRAMAR DRIVE CODE AMENDMENT (PA2013 -211) Site Location: 2022, 2026, 2032, 2034, 2038, and 2042 Miramar Drive Senior Planner Jaime Murillo presented a PowerPoint presentation and details of the report addressing the proposed code amendment, an overview of the purpose and intent of the alley setbacks requirement for alleys, existing encroachments and recommendations. Chair Hillgren opened public comments. Seeing no one wishing to address the Commission regarding this matter, Chair Hillgren closed the public comments period. Motion made by Commissioner Brown and seconded by Vice Chair Tucker and carried (5 — 2) to adopt a resolution approving Code Amendment No. CA2013 -006. AYES: Ameri, Brown, Hillgren, Myers, and Tucker NOES: None ABSTENTIONS: None ABSENT: Kramer and Lawler ITEM NO. 4 WIRELESS TELECOMMUNICATIONS FACILITIES ORDINANCE UPDATE (PA2012 -057) Site Location: Citywide Principal Planner Jim Campbell presented details of the report, prior study sessions, public input, additional edits suggested by staff and Commissioner Tucker; and supplemental correspondence received from AT &T Page 3 of 7 67 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/21/2013 and Mr. Paul O'Boyle on behalf of Crown Castle. He reported minor changes to the resolution and offered to respond to questions from the Commission. Vice Chair Tucker commented on legal, non - conforming facilities and Assistant City Attorney Mulvihill reported that the intent of the language is to recognize that there will be legal, non - conforming structures, which do not have to comply with that part of the ordinance. To the extent that there are future amendments to the Municipal Code changing how the City imposes requirements on legal non - conforming structures, those ordinances would apply. Discussion followed regarding protecting public views. Assistant City Attorney Mulvihill stated that potential impacts to public views listed in the General Plan, as well as others not listed in the General Plan, would be evaluated in the process, if the latter are raised as concerns within the application. Principal Planner Campbell explained the intent of the language and suggested minor changes regarding legal, non - conforming facilities, and evaluating potential impacts to views. Chair Hillgren opened public comments. John Heffernan, Director of External Affairs at AT &T, referenced the letter submitted by the company and expressed concerns regarding the restrictiveness of the ordinance. He stated that the City would be better served if it struck a balance between aesthetic concerns and the wireless needs /demands of its residents, businesses and visitors. He requested additional modifications to the ordinance before it goes to that City Council. Mr. Heffernan stated that in its current draft, it seems that the ordinance would continue to impede the ability of carriers to provide wireless service and may be in violation of Federal Law. He addressed specific problem areas within the ordinance including the blanket prohibition of wireless telecommunication facilities in certain residential areas. He added that rather than a list of prohibited areas, they would like to see a list of all areas sorted by priority and order of preference. Additionally, he expressed concern with the lack of flexibility of the ordinance in terms of aesthetics and preventing AT &T from using the latest technologies because of the restrictions. He asked that the Planning Commission continue the matter to allow for additional fine - tuning of the ordinance. Vice Chair Tucker commented on the AT &T letter and stated that the only prohibition is to install wireless facilities on a house. He stated that the letter is not specific in terms of identifying a certain location, but is general, in concept. Mr. Heffernan commented on "personal" facilities installed by customers on their homes to boost the network and commented on capacity issues versus coverage. The amount of traffic on the network in specific spots may require additional facilities. Discussion followed regarding the need to follow Federal Law and ensuring that residents' needs are met. Paul O'Boyle commented on the current draft of the ordinance and addressed challenges with some of the changes made. He suggested adding a small -cell exemption, more permissive colocation standards facilitating administrative review, and including economic /financial considerations to the definition of feasible. He noted his agreement to include facilities in the public rights -of -way in the list of preferred locations; however, he indicated that they should be exempted from hearings. He indicated a need to establish appropriate design standards, dimensions and volumes for small cell facilities, a desire to clarify that setbacks do not apply within the right of way, overly burdensome screening standards, existing features and use of substantial conformance review for changes, need to provide standards for support equipment and the elimination of the requirement for Radio Frequency (RF) compliance reports. Dean Brown, California Wireless Association, stated support for the comments submitted by AT &T and Mr. O'Boyle and agreed with the changes that were previously discussed and with the changes recommended by the Assistant City Attorney. He commented on the importance of keeping in mind how wireless telecommunications has changed lives and supported economic growth, personal safety and security. He commented on wireless service being another utility upon which people rely and on the ever - changing technology and demands for increased capacity. Page 4 of 7 68 NEWPORT BEACH PLANNING COMMISSION MINUTES 11/21/2013 Sonal Thakur, Core Development Services on behalf of Verizon Wireless, addressed specific areas needing to be changed, including the requirement for submitting yearly RF compliance reports. She added that the reports are costly and asked that they not be required unless there is a specific need. Additionally, she asked that the City look at the possibility of adding small -cell technology as exempt or going through an administrative review process and addressed wireless facilities in the rights -of -way. Jim Mosher noted that the industry is well- represented at the meeting but that the public is not. He felt that the ordinance needs additional review and commented on its purpose. Dan Wampole reported on the review of an application in Newport Coast by a provider interested in installing a wireless tower and commended the Planning Commission for its work on the ordinance and its attempts at protecting the City. He commented on the new micro -cell technology and suggested that is where the City needs to go. Chair Hillgren reviewed the letters submitted by AT &T and Mr. O'Boyle. Regarding a request to include small -cell exemptions, Mr. Campbell expressed concerns that doing so would create a preference for one type of technology over another. Discussion followed regarding the need to treat all of the providers consistently and the possibility of reviewing small - cells, administratively. Regarding including specific dimensions, Assistant City Attorney Mulvihill expressed concerns that dimensions that may be acceptable at this time may not be in the future. She added that staff reviews applications in terms of where the facility is proposed and how it looks. There is a process by which the facilities are designed and through that process, the scope of review is defined. In response to Chair Hillgren's inquiry, Mr. O'Boyle discussed his definition of "small cell" facilities. Chair Hillgren stated that he would support staffs recommendation regarding this matter. Regarding collocation, Mr. Campbell reported that the definition addresses telecommunications facilities and does not exclude other facilities. Discussion followed regarding challenges of including economic or financial feasibility in the ordinance relative to screening, service issues, improvements in public rights -of -way or streets and prioritization of the types of facilities. Assistant City Attorney Mulvihill stated that she disagrees with the suggestion to include financial considerations in the term feasible and she disagrees with the statement that the ordinance does not encourage use of the right -of -way noting that it is included as a facility class and felt that the provision can remain, unchanged. Regarding setback requirements, Mr. Campbell stated that staff does not believe the matter needs changing. He noted that no setbacks are required in the rights -of -way. Discussion followed regarding screening of installations, as much as practical, Assistant City Attorney Mulvihill reported that the suggested changes were not necessary. Ensuing discussion pertained to adding "pole" to the list, recognizing existing poles as being viable for installation of new facilities, "consistent" versus "substantial conformance" relative to size and shape of facilities and support equipment and the ability to have some above ground facilities in the public right of way, the possibility of considering larger poles, allowing for additional flexibility and requiring RF compliance reports at the discretion of the Community Development Director. A request was suggested to modify the purpose of the ordinance to recognize the importance of wireless communications and it was decided that no changes were necessary. Page 5 of 7 69 M I I I NEWPORT BEACH PLANNING COMMISSION MINUTES 11/21/2013 Discussion followed regarding ensuring that the telecommunications operations meet the City safety regulations, compliance with the Middle -class Tax Relief Jobs Creation Act and the definitions of base stations and wireless towers. After discussion, no changes to the draft ordinance were directed. Chair Hillgren closed the public comments period. Discussion followed regarding needing to see the final draft of the ordinance prior to final approval and consideration by Council. Mr. Campbell stated that he will have the changes made to the ordinance as soon possible even as early as tomorrow afternoon. Motion made by Vice Chair Tucker and seconded by Commissioner Ameri and carried (5 — 2) to continue the matter to December 19, 2013, to allow for the review of the final draft of the ordinance. AYES: Ameri, Brown, Hillgren, Myers, and Tucker NOES: None ABSTENTIONS: None ABSENT: Kramer and Lawler STAFF AND COMMISSIONER ITEMS III:4riI tri Eel I16]ZIgo] za :7x0]16YI0A:L \I Eel z0►67iis Il9:4ir,Iz[ex:- Oiel 4I 'dliIlllvap7:k9:lt91116141191110:1 119]:W4 :AI Deputy Community Development Director Wisneski reported that the City Council approved the Lido Villas project and took action regarding Woody's Wharf. Additionally, at an upcoming meeting, the City Council will take action on revoking the inclusionary housing program in the Housing Element as well as consider fire rings. She reported that staff recommends cancelling the Planning Commission meeting of December 5, 2013. Committee Updates: 1. Land Use Element Amendment Advisory Committee Ms. Wisneski provided an update on the Land Use Element Amendment Advisory Committee noting that it met in November and is focusing on policies. The Committee also held an EIR scoping meeting. 2. General Plan /Local Coastal Program Implementation Committee She reported that the General Plan /Local Coastal Program Implementation Committee will meet next Wednesday, November 27, 2013, and addressed issues upon which the Committee will focus. Additionally, she reported that the Planning Commission meeting of December 19, 2013, will start at 3:00 p.m. Brief discussion followed regarding the recent California Coastal Commission meeting. ITEM NO. 7 ANNOUNCEMENTS ON MATTERS THAT THE PLANNING COMMISSION MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT ITEM NO. 8 REQUESTS FOR EXCUSED ABSENCES Page 6 of 7 70 NEWPORT BEACH PLANNING COMMISSION MINUTES IX. ADJOURNMENT 11/21/2013 There being no further business to come before the Planning Commission, the meeting was adjourned at 8:18 p.m. The agenda for the Regular Meeting was posted on November 15, 2013, at 9:55 a.m., in the binder and on the City Hall Electronic Bulletin Board located in the entrance of the Council Chambers at 100 Civic Center Drive. Bradley Hillgren, Chair Kory Kramer, Secretary Page 7 of 7 71 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT July 19, 2012 Agenda Item 5 SUBJECT: Wireless Telecommunications Facilities Ordinance (PA2012 -057) • Code Amendment No. 2012 -004 PLANNER: Janet Johnson Brown, Associate Planner (949) 644 -3236, ibrown(cilnewportbeachca.gov PROJECT SUMMARY An amendment to the Newport Beach Municipal Code ( "NBMC ") to update regulations regarding wireless telecommunication facilities ( "telecom facilities "). Regulations currently contained in Chapter 15.70 would be updated and relocated to Title 20 (Planning and Zoning). Chapter 15.70 would be rescinded in its entirety. RECOMMENDED ACTION 1) Conduct a public hearing; and 2) Adopt Resolution No. _ (Attachment No. PC 1) recommending that City Council approve an amendment to the NBMC to update regulations regarding telecom facilities, and consolidate all provisions currently contained in Title 13 (Streets, Sidewalks and Public Property) and Title 15 (Buildings and Construction) within a proposed new chapter in Title 20 (Chapter 20.49 Wireless Telecommunications Facilities); and repeal Chapter 15.70 in its entirety. Project Description The proposed code amendment is a comprehensive update to the existing Wireless Telecommunications Facilities Ordinance (the telecom ordinance). The amendment is intended to balance the needs of the community and the increasing demand for wireless networks, while mitigating the impact of telecom facilities in the community through effective design and screening techniques. The proposed amendment is also intended to reflect changes in federal and state law. Currently, provisions regulating telecom facilities are contained in Chapter 15.70, as well as Chapter 13.20 (Public Rights -of -Way) that regulates installations in the public right -of -way. While no changes will be made to Chapter 13.20, the proposed update would consolidate all provisions regulating telecom facilities into a new chapter in the Zoning Code and new or modified telecom facilities would be regulated as land uses. Wireless Telecommunications Facilities Ordinance (PA2012 -057) July 19, 2012 Page 2 Background The current regulations for telecom facilities were adopted by City Council in October 2002. Prior to that time, all telecom facilities were processed as a ministerial project through a building permit application. At the time Chapter 15.70 was adopted, state and federal case law suggested cities were somewhat limited in how telecom facilities could be regulated. More recent case law favors more appropriate local control to ensure the compatibility of telecom facilities with surrounding land uses. The typical land use evaluation process by local jurisdictions through the Zoning Code is also supported by current case law and it is a process commonly used today. The City's existing telecom ordinance does not reflect current case law, and it has not been updated to reflect new industry practices, changes in federal law or changes in state law since its adoption in 2002. Under the existing regulations, all applications for a telecom facility are reviewed by the "Planning Director" (now considered the Community Development Director) as a "telecom permit" to determine if the proposed facility conforms to the technology, height, location and design standards of the code. The Community Development Director is designated as the review authority for proposed telecom facilities that meet established criteria. The City Council is the review authority for telecom facilities that do not conform to the height, location and /or design standards, and for facilities that are more noticeable and aesthetically conspicuous (such as a false tree, monopole, or lattice tower). Neither review process requires a public notice or a public hearing. At the March 27, 2012, City Council Study Session, staff presented an overview of the existing telecom ordinance, and identified sections that could be updated to reflect current case law, as well as areas of the code that could be improved based upon staffs experience with applying existing regulations. Staff proposed that the telecom ordinance be updated to address a variety of identified issues, and that all regulations related to telecom facilities be consolidated into the Zoning Code. At the conclusion of the study session, City Council requested staff to proceed with revisions to the telecom ordinance as recommended. Federal Law and Radio Frequency Emissions Safety In 1996, the U.S. Congress added a section to the Communications Act of 1934 to promote the expansion of personal wireless communications service, adding Section 332(c)(7). This section preserves local zoning authority over the "placement, construction, and modification of personal wireless service facilities," while imposing certain federal requirements. Specifically, Section 332(c)(7) requires that state or local government decisions regarding telecom facilities shall not: a. Unreasonably discriminate among providers of functionally equivalent services; or b. Prohibit or have the effect of prohibiting the provision of personal wireless services; or Wireless Telecommunications Facilities Ordinance (PA2012 -057) July 19, 2012 Page 3 c. Regulate the placement, construction, and modification of personal wireless facilities on the basis of the environmental effects of radio frequency (RF) emissions to the extent that such facilities comply with the Federal Communications Commission's (FCC) regulations concerning such emissions. Congress has delegated sole national authority to the FCC to set radio frequency standards in the United States. While federal law prohibits a City from setting its own RF emissions safety standards (or even adopting the FCC's standards as its own), it does permit a City to determine whether a proposed telecom facility meets applicable FCC regulations. Once the review authority is satisfied that the RF emissions of a proposed telecom facility are within the federal thresholds, a City's review of a proposed project can only be based on applicable zoning criteria as set forth in local ordinances. DISCUSSION The following discussion highlights the key issues with the existing telecom ordinance, and the proposed revision in the draft ordinance to address these issues. 1. Public Notice /Public Hearing Process and Review Authority a. Existing Provisions: The current regulations do not provide a process or requirement for public notices or public hearings for telecom permit applications. The Community Development Director is the review authority for telecom facilities that conform to the requirements of the code, and notices of a public meeting are only mailed when a special review is required by City Council for larger, more conspicuous types of telecom facilities (e.g., a false tree, monopole, or lattice tower), or a facility proposed to be located in certain residential zoning districts. b. Proposed Revision: The draft ordinance requires that all applicants for a proposed telecom facility must apply for a Minor Use Permit, Conditional Use Permit, or Limited Term Permit, depending on the location, design, method of installation, and duration of a proposed telecom facility. All applications would require a public notice and public hearing' consistent with provisions in the Zoning Code, and the Zoning Administrator or Planning Commission is the designated review authority. This proposed revision would provide for public input through the public hearing process. 2. Appeal Process a. Existing Provisions: Currently, only the applicant may appeal a decision on a telecom permit application reviewed by the Community Development Director. 1 Applications for a Limited Term Permit for a facility proposed to operate less than 90 days do not require a public hearing. Wireless Telecommunications Facilities Ordinance (PA2012 -057) July 19, 2012 Page 4 b. Proposed Revision: The draft ordinance includes an appeal process that is consistent with the Zoning Code, which would allow any interested party to initiate an appeal. Decisions of the Zoning Administrator may be appealed to the Planning Commission, and decisions of the Planning Commission may be appealed to the City Council, consistent with the City's current practice for other types of development applications. 3. Installations in the Public Right -of -Way a. Existing Provisions: The existing code does not provide specific procedures for applications to install a telecom facility in the public right -of -way. b. Proposed Revision: The draft ordinance includes a process, design standards and criteria for the installation of telecom facilities in the public right -of -way, consistent with procedures for installations on private property (i.e. public hearings would be conducted, and a ministerial encroachment permit would still be required). 4. Design Standards and Criteria a. Existing Provisions: Existing design standards do not reflect changes in technology, and do not effectively encourage telecom facilities to be camouflaged or designed to look as inconspicuous as possible. b. Proposed Revision: The design standards have been updated to reflect technological changes. Design criteria have been included to encourage camouflage design techniques based on the method of installation. Proposed telecom facilities that are designed to make the installation, operations and appearance of the facility as inconspicuous as possible and visually compatible with the surrounding area are subject to public review before the Zoning Administrator, whereas telecom facilities that are more visually conspicuous are subject to public review before the Planning Commission. 5. Deviation to Height Limitations and Location Requirements a. Existing Provisions: The existing ordinance does not provide a process for a project proponent to request to modify or deviate from the allowed height limits or prohibited location requirements. b. Proposed Revision: By placing regulations for telecom facilities in the Zoning Code, a project proponent seeking to exceed the height requirement could submit a Variance application. Such an application would be processed no differently than other Variance applications and a public hearing before the Planning Commission would result. Wireless Telecommunications Facilities Ordinance (PA2012 -057) July 19, 2012 Page 5 6. Setback Requirements a. Existing Provisions: The existing ordinance requires that setbacks be measured from the part of the telecom facility closest to the applicable lot line or structure, and prohibits the location of a telecom facility within any required setback established by the Zoning Code, unless given special approval by the City Council. Proposed Revision: The setback requirements in the draft ordinance have been updated to provide an additional setback or "fall zone" for ground- mounted "wireless towers" z for safety purposes in the event of involuntary damage where the "wireless tower" topples or falls over. The new required setback would be the greater distance of either the required setback established in the Zoning Code, or 110 percent (110 %) of the height of the "wireless tower," unless the review authority determines a smaller setback is appropriate. For an example, in a nonresidential district where the required setback is five feet and a freestanding ,.wireless tower" is proposed to be 25 feet in height, the "wireless tower' must be set back a minimum of 27.5 feet from the property line. 7. Modification of Existing Telecom Facilities a. Existing Provisions: The existing ordinance includes provisions which allows the City to review and modify a telecom permit based on 'changed circumstances" such as an increase in the height or size of any part of the facility; additional impairment of the views from surrounding properties, an increase in size or change in shape of the antenna or supporting structure; change in color or materials; change in location; or increase in signal output above permissible exposure limits established by FCC guidelines. b. Proposed Revision: The draft ordinance includes regulations consistent with new federal law3 regarding the operation and modification of existing telecom facilities. Criteria is included in the draft ordinance establishing what constitutes a substantial change to an existing telecom facility, including increasing or decreasing by five percent (5 %) or more the height, width, or depth in any direction of any portion of the existing "wireless tower" or "base station." When modifications to the physical dimensions of an existing telecom facility are less than five percent (5 %), the proposed modifications would be subject to ministerial review and approval (e.g. a building permit or encroachment permit). Changes to an existing telecom facility that are five percent (5 %) or more would be considered a substantial change and shall require the processing of a new discretionary permit application consistent with the provisions of the draft ordinance. The five percent (5 %) threshold is proposed to minimize aesthetic impacts and protect public views in the community. 2 "Wireless towers" are defined in the draft telecom ordinance as "any structure built for the sole or primary purpose of supporting antennas used to provide wireless services authorized by the FCC." Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 regarding deployment of telecom facilities was signed into effect February 22, 2012. Wireless Telecommunications Facilities Ordinance (PA2012 -057) July 19, 2012 Page 6 8. Zoning District Land Uses and Permit Requirements In addition to amending the Zoning Code to add the proposed new Chapter 20.49, the allowed uses and permit requirement tables in the following sections would be updated to reflect the zoning districts in which telecom facilities are allowed and the permit required to establish the telecom facility. Section 20.18.020 Residential Zoning Districts Land Uses and Permit Requirements Section 20.20.020 Commercial Zoning Districts Land Uses and Permit Requirements Section 20.22.020 Mixed -Use Zoning Districts Land Uses and Permit Requirements Section 20.24.020 Industrial Zoning Districts Land Uses and Permit Requirements Section 20.26.020 Special Purpose Zoning Districts Land Uses and Permit Requirements Under the existing and proposed telecom ordinance, telecom facilities are allowed in all commercial, mixed -use, and industrial zoning districts, as well as on properties zoned for public facilities, private institutions, and active public or private recreational uses. a. Existing Provisions: Under the existing telecom ordinance, telecom facilities are prohibited in the following locations unless given special approval by City Council: "on common area lots or other non - residential lots within residential districts; within any required setback established in the Zoning Code; or, on multifamily structures on lots zoned MFR." Telecom facilities are prohibited on 'residential Iots4" and in the "Open Space- Passive (OSP) zoning district, unless facilities are co- located on an existing utility tower within a utility easement area." b. Proposed Revision: "Prohibited Locations" has been updated to prohibit telecom facilities on properties zoned for single - family development, two- family development, or multi -unit residential developments consisting of four dwelling units or less, and to include an exception to allow telecom facilities in an Open Space zoning district when collocated on an existing telecom facility or site (e.g., the Laidlaw Gas Recovery Facility in the Newport Coast area is located on land designated as Open Space, but contains four different telecom facilities). The "General Development and Design Standards" includes a provision that all telecom facilities comply with the required setback established for the zoning district in which the facility is proposed to be located. The summary above represents the key changes to the draft telecom ordinance and permitted uses of the Zoning Code. Due to the complexity of the changes, a " Under Section 15.70.030 (Definitions) a "residential lot" means a lot containing, or zoned for, one or more dwelling units in the R -1, R -1.5, R -2, or in the residential portions of the PC of SP Districts. Wireless Telecommunications Facilities Ordinance (PA2012 -057) July 19, 2012 Page 7 strikeout /underline version of Chapter 15.70 could not be prepared. For this reason, staff has prepared a table (Attachment No. PC 2) that lists each section of the existing telecom ordinance and the proposed new or modified sections, and provides more detail regarding the proposed changes or additions. A copy of Chapter 15.70, the existing telecom ordinance is attached (Attachment No PC 3), as well as a draft copy of the proposed new telecom ordinance, Chapter 20.49 (Exhibit "A" of the draft Resolution). Environmental Review Staff recommends that the Planning Commission adopt the draft resolution recommending that City Council find this code amendment is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because the code amendment in and of itself has no potential for resulting in physical changes to the environment, directly or indirectly. Furthermore, each application submitted for a new or modified telecom facility will be reviewed individually to determine if the project is subject to CEQA and requires additional environmental review, or if the project is exempt from CEQA. For these reasons, this code amendment is not subject to CEQA. Public Notice Notice of this Planning Commission hearing was provided as a one - eighth page display ad in the Daily Pilot on July 7, 2012, as required by the NBMC and Government Code Section 65091. Notice was also provided on the City's website. Prepared by: Submitted by: Jan t Jors n Brown Br n a Wisnesl i, rICP, Deputy Director Associate_P nner ATTACHMENTS PC 1 Draft Resolution PC 2 Summary of Proposed Changes to Telecom Ordinance PC 3 Existing Chapter 15.70 Attachment No. PC 1 Draft Resolution RESOLUTION NO. A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING CITY COUNCIL ADOPTION OF CODE AMENDMENT NO. 2012 -004 UPDATING REGULATIONS FOR WIRELESS TELECOMMUNICATIONS FACILITIES (PA2012 -057) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. Chapter 15.70 ( "Wireless Telecommunications Facilities ") of the Newport Beach Municipal Code ( "NBMC ") was adopted by the Newport Beach City Council in October 2002, and has not been modified since adoption. 2. At the March 27, 2012, City Council Study Session, the Newport Beach City Council directed staff to prepare revisions to the existing regulations for Wireless Telecommunications Facilities ('Telecom Facilities "). 3. City staff has prepared a comprehensive update to the existing regulations for Telecom Facilities, and consolidated all provisions currently contained in Chapter 13.20 (Public Rights -of -Way) and Chapter 15.70 (Wireless Telecommunications Facilities) into a new chapter in the Zoning Code (Chapter 20.49 Wireless Telecommunications Facilities). 4. Chapter 20.66 of the City's Zoning Code requires the Planning Commission to conduct one or more public hearings before making a recommendation to City Council on a proposed zoning code amendment. 5. A public hearing was held on July 19, 2012, in the City Hall Council Chambers, 3300 Newport Boulevard, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. The Planning Commission recommends that the City Council find this code amendment is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment), and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because the code amendment in and of itself has no potential for resulting in physical changes to the environment, directly or indirectly. Furthermore, each application submitted for a new or modified Telecom Facility will be reviewed individually to determine if the project is subject to CEQA and requires additional environmental review, or if the project is exempt from CEQA. For these reasons, this code amendment is not subject to CEQA. Planning Commission Resolution No. Page 2 of 3 SECTION 3. FINDINGS. 1. The code amendment reflects changes in federal and state law enacted since adoption of Chapter 15.70, as well as advances in technology and industry practices. 2. The code amendment includes a requirement for public notices and public hearings that will provide a process where the public will have an opportunity to effectively participate in the review process. 3. The code amendment is intended to balance the needs of the community and the increasing demand for wireless networks, while evaluating the compatibility of a Telecom Facility with surrounding land uses. The regulations and development standards set forth in Chapter 20.49 are intended to mitigate the impact of Telecom Facilities in the community through effective location, design and screening techniques. 4. The code amendment will not constitute a hazard to public convenience, health, interest, safety, or general welfare of the community because the regulations establish effective location, design and operational criteria that are intended to protect the public health in compliance with safety standards established by the Federal Communications Commission ( "FCC "), and to improve the aesthetics of Telecom Facilities in the community. The regulations and design standards set forth in Chapter 20.49 are not intended to limit an individual's ability to receive wireless telecommunications services nor create unfair competition among wireless telecommunication service providers. 5. Section 704 of the 1996 Telecommunications Act (47 U.S.C. Section 332(c)) preempts local regulation of the placement, construction, and modification of Telecom Facilities on the basis of the environmental effects of radio frequency emissions to the extent that such Facilities comply with the applicable FCC regulations. 6. Consolidating all regulations and development standards for Telecom Facilities from Chapter 15.70 and Chapter 13.20 of the NBMC into a new chapter in the Zoning Code (Chapter 20.49) will allow for consistent and efficient administration of the code. SECTION 4. DECISION. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby recommends that the City Council of the City of Newport Beach approve Code Amendment No. 2012 -004 as shown in Exhibit "A" and Exhibit "B," and repeal Chapter 15.70 of the Newport Beach Municipal Code in its entirety. Tmplt: 05/16/2012 Planning Commission Resolution No. PASSED, APPROVED AND ADOPTED THIS 19th DAY OF JULY, 2012. AYES: NOES: ABSTAIN ABSENT: BY: Michael Toerge, Chairman BY: Fred Amen, Secretary Brenda Wisneski, AICP, Zoning Administrator Tmplt: 05/16/2012 EXHIBIT "A" Chapter 20.49 — Wireless Telecommunications Facilities Sections: 20.49.010 —Purpose and Intent 20.49.020 — 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 20.49.080 — 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 and Intent. A. Purpose. The purpose of this Chapter is to provide for wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating the impacts of such facilities. More specifically, the regulations contained herein are intended to: 1. Encourage the location of Antennas in non - residential areas. 2. Strongly encourage Collocation at new and existing Antenna sites. 3. Encourage Telecom Facilities to be located in areas where adverse impacts on the community and public views are minimized. 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. 20.49.020 — General Provisions. A. Applicability. 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. 1. Prior to construction of any Telecom Facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use Permit (CUP), or Limited Term Permit (LTP), depending on the proposed location and Antenna Classes, in accordance with Section 20.49.070 (Permit Review Procedures). Page 11 2. Applicants who obtain a MUP, CUP or LTP (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 Facility, consistent with Section 20.49.090 (Agreement for Use of City -owned 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. 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. 5. Systems installed or operated at the direction of the City or its contractor. 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, or for which the application for a proposed Telecom Facility is deemed complete prior to the effective date of this Chapter, 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. Page 12 20.49.030 — Definitions. For the purposes of this Chapter, the following definitions shall apply: 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. Antenna Array. Antenna Array means Antennas having transmission and /or reception elements extending in more than one direction, and directional Antennas mounted upon 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. Antenna Classes. Antenna Classes are Telecom Facilities and the attendant Support Equipment separated into distinct "antenna classes." 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. 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 is not limited to City Hall, Police and Fire facilities, recreational facilities, parks, libraries, monuments, signs, streetlights and traffic control standards. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. 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 "hub" or "hotel" where the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. 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. Feasible. Feasible means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal and technological factors. 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. 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. Page 13 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. 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. 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. 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 cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters. Support Equipment does not include the Base Station, DAS, Antennas or the building or structure to which the Antennas are attached. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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. Utility Pole. Utility Pole means a single freestanding pole used to support services provided by a public or private utility provider. Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or steel pole used to support electric transmission facilities. 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. O 20.49.040 — Available Technology. All Telecom Facilities approved under this Chapter shall utilize the most efficient, diminutive, 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. 20.49.050 — Location Preferences. A. Preferred Locations. The following is the order of preference for the location and installation of Telecom Facilities, from highest priority location and technique to lowest. Antenna Classes are the Telecom Facilities and their attendant accessory/Support Equipment separated into the following distinct Antenna Classes based on observed aesthetic impacts, as follows: Class 1 (Camouflaged /Screened): A Telecom Facility with Antennas mounted on an existing or proposed non - residential building or other structure not primarily intended to be an antenna support structure. The Antennas, Base Station, and Support Equipment are fully screened so that they are not visible to the general public. Typical examples include: • Wall or roof mounted Antennas that are screened behind radio - frequency transparent, visually- opaque screen walls that match or complement existing exterior surfaces of the building or structure to which they are attached. • Antennas designed to be incorporated within an architectural feature of a building or structure such as a steeple, cross, cupola, sign, monument, clock tower or other architectural element. • Base Station equipment that is contained within an existing structure, or placed into a new attached structure that matches or complements the existing exterior surfaces of the building or structure Class 2 (Collocation): A Telecom Facility with Antennas and /or Base Stations co- located on an approved existing Telecom Facility and mounted in the same manner with materially the same or improved screening, or the same camouflage design techniques as the approved or existing Telecom Facility. Class 2 Collocation Telecom Facilities also may incorporate flush - to -grade underground Base Station 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. Class 3 (Visible): A Telecom Facility with Antennas mounted on an existing non - residential building, structure, pole, light standard, Utility Tower, and /or Lattice Tower. The structure is treated with some camouflage design techniques, but the Antenna panels and some portions of the pole, light standards, Utility Tower, or Lattice Tower are still visible. Typical examples include: Antennas mounted on the exterior of an existing building so that the panels are visible, but painted to match the color and texture of the building or structure. Antennas flush - mounted atop an existing pole or light standard that are unscreened or un- camouflaged, or attached to an existing pole or light standard utilizing a cylindrical Antenna unit that replicates the diameter and color of the pole or standards. Antenna panels installed on existing electrical or other Utility Towers, or existing Lattice Towers. Page 15 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. The Telecom Facility is designed to replicate a natural feature or is a Monopole or Lattice Tower. The Antennas are either unscreened and visible, or camouflaged /designed to blend in with their surroundings. Typical examples include: Antennas mounted inside or behind elements that replicate natural features such as rocks and shrubbery and located in hillsides or other natural areas where the Telecom Facility blends into the surrounding vegetation or topography (e.g. false rocks or shrubbery). A Telecom Facility consisting of Antennas mounted on or inside a freestanding structure that uses camouflage to disguise the Antennas (e.g. monotree, flagpole, or other freestanding structure). A Telecom Facility consisting of Antennas on the exterior of a freestanding structure that is unscreened /un- camouflaged (e.g. Monopoles or Lattice Tower). Class 5 (Temporary): A Wireless Tower, Antennas and /or Base Station, and associated Support Equipment system that is a temporary Telecom Facility on a site until a permanent (separately approved) Telecom Facility to provide coverage for the same general area is operational but such placement of a temporary Telecom Facility shall not exceed 1 year, consistent with Section 20.52.040. A Wireless Tower, Antennas and /or Base Station, and associated Support Equipment system that is a temporary Telecom Facility located on a site in connection with a special event, as that term may be defined in Municipal Code Section 11.03.020 (General Provisions), may be allowed only upon approval of a Special Events Permit, as regulated by Chapter 11.03. Class 5 installations include but are not limited to equipment mounted on trailers, trucks, skids, or similar portable platforms. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: 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 consisting of four (4) dwelling units or less. 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. 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, and notwithstanding any provisions contained in Title 13 to the contrary, shall be subject to the following: 1. All Support Equipment shall be placed below grade in the public right -of -way where the existing utility services (e.g., telephone, power, cable TV) are located underground. Exception: Any pedestal meter required for the purpose of providing electrical service power for the proposed Telecom Facility may be allowed to be installed above ground in a public right -of -way. 2. Whenever Feasible, new Antennas proposed to be installed in public right -of -way shall be placed on existing or replacement utility structures, light standards, or other existing vertical structures. 3. Any proposed installation in the public right -of -way shall comply with all requirements of the Americans with Disability Act (ADA), and all other laws, rules, and regulations. Page 16 D. Collocation Installations. 1. When Required. To limit the adverse visual effects of and proliferation of individual Telecom Facilities in the City, 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. Exception: If the reviewing authority determines, based on compelling evidence submitted by the applicant, that Collocation of one or more new Telecom Facilities within one thousand (1000) feet of an existing Telecom Facility is not Feasible, and all findings required to grant approval of a MUP, CUP or LTP for a Telecom Facility can be met, 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. 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 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 possible. 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 camouflage, and shall be compatible with existing architectural elements, building materials, other building characteristics, and the surrounding area. Where an existing structure is replaced to allow for the addition of a Telecom Facility, the replacement structure shall retain as its primary use and purpose that of the prior- existing structure. For an example, where a streetlight standard is replaced with a different streetlight standard to allow for the additional installation of Antennas, the primary use shall remain as a streetlight. 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 or LTP 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, screened or camouflaged 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. 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). Page 17 C. Height. 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 (AELUP) for John Wayne Airport and Airport Land Use Commission (ALUC) Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. 1. Maximum Height. Antennas shall be installed at the minimum height possible to provide average service to the Telecom Operator's 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 existing streetlight standards, traffic control 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 in nonresidential districts only, and 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. As a condition of approval, flagpole sites shall comply with 4 U.S.C. § 1 et seq. (the "U.S. Flag Code "). d. Telecom Facilities may be installed on buildings or other structures to extend up to 5 feet above 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. e. Applications for the installation of Telecom Facilities proposed to be greater than 5 feet above the base height limit may be installed up to the maximum height limit for the zoning district in which the Telecom Facility is located in accordance with Section 20.30.060.C.2 (Height Limit Areas), 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 height limit by more than 5 feet after making all of the required findings in Section 20.49.070.H (Permit Review Procedures). 2. Over - Height Buildings or Structures. Stealth Telecom Facilities may be installed within or on structures that are permitted to exceed the height limit for the zoning district in which the structure is located, either by right under Title 20 or which have received a discretionary approval, so long as the height of the structure is not being increased. The standard of review shall be based on the type of installation and Antenna Classes being used. 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. For ground- mounted Wireless Towers installed on public property or private property, unless the review authority determines a smaller setback would be appropriate based on the surrounding development or uses, the setback .- shall be the greater of: a) the required setback established by the development standards for the zoning district in which the Telecom Facility is proposed to be located; or b) 110% of the maximum height of the Wireless Tower including any Antenna or Antenna enclosures attached thereto. E. Design Techniques. Design techniques shall result in the installation of a Telecom Facility that is in scale with the surrounding area, hides 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 camouflage, disguise, or otherwise hide the Telecom Facility from view from surrounding uses. 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, camouflage, or hide the Telecom Facility. 4. Utilizing simulated natural features (trees, rocks, etc.) to screen, camouflage, 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 create greater visual impacts than the Telecom Facility itself. F. Screening Standards. Following is a non - exclusive list of potential design and screening techniques that should be considered based on the following Antenna Classes: For Class 1 (Camouflaged /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 (Collocation) Antenna Installations: a. A Collocation installation shall use screening methods materially similar to those used on the existing Telecom Facility and shall not diminish the screening of the existing Telecom Facility. b. If determined necessary by the review authority, use of other improved and appropriate screening methods may be required to screen the Antennas, Base Station, and Support Equipment from public view. 3. For Class 3 (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 Page 19 Antennas are mounted. No cables and mounting brackets or any other associated equipment or wires shall be visible from above, below or the side of the Antennas. 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. c. Antenna installations in the public right -of -way and /or on an existing or replacement streetlight pole or traffic control standard shall be limited to Antennas, Supporting Equipment, and cable components that are compatible in scale and proportion to streetlights and traffic control standards and the poles on which they are mounted. 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 width or shall be mounted in a flush -to- grade enclosure adjacent to the base of the pole. d. Antenna installations on existing or replacement streetlight poles, 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. 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. e. Antennas shall be mounted on existing poles wherever Feasible. If a new pole is proposed to replace the 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. c. The installation of a new Monopole or Lattice Tower is prohibited unless the applicant by use of compelling evidence can show to the satisfaction of the review authority that higher priority locations or Stealth Facilities are either not available or are not Feasible. 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. Page 110 6. Support Equipment. All Support Equipment associated with the operation of any Telecom Facility including but not limited to the Base Station shall be placed or mounted in the least visually obtrusive location possible, and shall be screened from view. The following is a non - exclusive list of potential screening techniques that may be utilized based on the type of installation: a. 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 screening materials are painted the color of the building, roof, and /or surroundings. 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. b. Freestanding Facilities. For freestanding Telecom Facilities installations, not mounted on a building or structure, Support Equipment for the Telecom Facility: Shall be visually screened by locating the Support Equipment in a fully enclosed building or in an underground vault, or Shall be screened in a security enclosure consisting of walls and /or landscaping to effectively screen the Support Equipment at the time of installation. 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. 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 or camouflaged to blend with surrounding materials and colors. c. Installations in a Public Right -of -Way. 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. 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 required 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 111 Nonconformities. A proposed Telecom Facility shall not create any new or increased nonconformities 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. 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 camouflage or 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. 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 Facility 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. 20.49.070 — Permit Review Procedures. The procedures and requirements for preparation, filing, and processing of a permit application for a Telecom Facility shall be as specified in Chapter 20.50 (Permit Application Filing and Processing) unless otherwise noted below. A. Permit Required. All applicants for Telecom Facilities shall apply for a MUP, CUP or LTP, from the Community Development Department, depending on the Antenna Class, height, and duration, as specified in the table below: Table 4 -1 Permit Requirements for Telecom Facilities Antenna Class Location of Proposed Telecom Facility Located in a Located inside or Located inside or Nonresidential within 150 feet of any within 150 feet of District more than Open Space District any Residential 150 feet from a or Public Park or District or Residential (or Public Facility zoned Equivalent PC Equivalent PC) PR or PF District District or Open Space District or Public Park or Public Facility zoned PR or PF Class 1 Antenna (a) MUP MUP MUP (Camouflaged/Screened) Class 2 Antenna (a) (b) MUP MUP CUP Collocation Class 3 Antenna (a) MUP MUP CUP Visible Page 112 Antenna Class Location of Proposed Telecom Facility Class 4 Antenna (a) (c) MUP CUP CUP (Freestanding Structure Class 5 Antenna (a) (c) (d) LTP LTP LTP (Temporary) (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 by greater than five (5) feet shall require review and action of a CUP by the Planning Commission. Pursuant to this provision, an application that would otherwise be subject to review by the Zoning Administrator would become subject to review by the Planning Commission. The Planning Commission may approve or conditionally approve a CUP, subject to the required findings in Subparagraph H, below. (b) The review procedure for Collocated Telecom Facilities shall be consistent with the applicable review procedure as identified elsewhere in this table depending on the type of installation and Antenna Class being proposed for the Collocation, unless the Collocated Telecom Facility meets the requirements of California Government Code § 65850.6, or involves the Collocation of new transmission equipment and is consistent with the provisions in Section 20.49.100 (Modification of Existing Telecom Facilities). (c) Antennas mounted on or within flagpoles, and temporary Telecom Facilities shall not be permitted on properties either used or zoned residentially. (d) Temporary Telecom Facilities shall be subject to the standard of review for an LTP, pursuant to Section 20.52.040 (Limited Term Permits). B. 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. C. 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. D. 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. E. 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 a permitted use not requiring a discretionary permit provided the underlying Telecom Facility was granted a discretionary permit and was subject to either an environmental impact report, mitigated negative declaration or negative declaration. If such a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6, it shall be reviewed pursuant the review procedures contained in Section 20.49.070 (Permit Review Procedures). F. 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. Page 113 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. . G. Public Notice and Public Hearing Requirements. An application for a Telecom Facility shall require a public notice, and a public hearing shall be conducted, in compliance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all Telecom Facilities: 1. General. The review authority indicated in Table 4 -1 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 desigr 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. 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 by more than 5 feet 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. 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). Page 114 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 or LTP. Upon the issuance of a MUP, CUP or LTP, as required, and upon entering into an agreement, the applicant shall obtain any and all other necessary permits, including, encroachment permits for work to be completed in the public right -of -way, 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. Notwithstanding any provision in this Chapter of the Zoning Code, a request for a modification of an existing Wireless Tower or Base Station that involves: a. The Collocation of new transmission equipment; b. The removal of existing transmission equipment; or c. The replacement of existing transmission equipment shall be subject to a ministerial review and approval without the processing of a discretionary permit provided that such modification does not substantially change any of the physical dimensions of such Wireless Tower or Base Station from the dimensions approved as part of the original discretionary permit for the Wireless Tower or Base Station. However, any modification to a Wireless Tower or Base Station which substantially changes the physical dimensions of either the Wireless Tower or Base Station, and any other modification to a Telecom Facility that does not qualify as a Wireless Tower or Base Station, shall be subject to the permits and authorizations required by this Chapter. "Substantially Change the Physical Dimensions" means any of the following, and refers to a single change, or a series of changes over time (whether made by the same or different entities) viewed against the City approval(s) for the Wireless Tower or Base Station as existing on February 22, 2012, that individually or cumulatively have any of the effects described below: a. Changing any physical dimension of the Wireless Tower or Base Station in a manner that creates a violation of any safety code adopted by the City, or by the state or federal government. b. Changing the physical dimension of a Stealth Facility on a Wireless Tower, where the changes would be inconsistent with the design of the Stealth Facility, or make the Wireless Tower more visible. c. Changing the physical dimension would require work that would intrude upon the public right -of -way, or any environmentally sensitive area. d. Increasing or decreasing by five percent (5 %) or more any of the following: Page 115 The height, width, or depth in any direction of any portion of the Wireless Tower or Base Station; or The area required for structures required to support the Wireless Tower, including but not limited to guy wires as approved and constructed through the discretionary permit process Provided that in no event shall the height is increased to exceed the maximum height permitted in the applicable zoning district under the City's regulations. e. Increasing by more than five percent (5 %) any of the height, width, depth or area encompassed within any structure or object enclosing the Wireless Tower, such as a fence or line of shrubs or bushes. f. Increasing any of an existing Antenna Array's depth, circumference, or horizontal radius from the Wireless Tower in any direction by more than five percent (5 %). g. Adding more than two Antenna Arrays to an existing Wireless Tower, or adding Antenna Arrays that, if the Antenna Array were an existing Antenna Array, would be of such depth, circumference or radius as to fall outside of item f (above), unless such Antenna Arrays were approved pursuant to Government Code Section 65850.6. h. The mounting of the new or replacement transmission equipment would involve installing new equipment cabinet(s) not permitted under the initial approval and that will not fit within the existing enclosure for the Wireless Tower or Base Station, or would require installation of a new cabinet or enclosure, excluding new equipment and cabinets that will be installed underground. (Note: the proposed installation of a power back -up system [i.e., gas /diesel generator, fuel cell, battery system, etc.] is not Collocation of new transmission equipment.) i. Any increase in any physical dimension of a Wireless Tower or Base Station or any equipment related thereto or any enclosure thereof at a Legal Nonconforming Facility. Each application submitted under this section for a modification to an existing Wireless Tower or Base Station 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 Wireless Tower as originally constructed, if available; a current photograph of the existing Wireless Tower and /or Base Station; and, a graphic depiction of the Wireless Tower and/or Base Station 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 to be performed will not trigger discretionary review under this section. Any permit issued will be conditioned, and may be revoked, and the Telecom Facility 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 triggered a discretionary review. 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 Page 116 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 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 Page 117 finding of abandonment, the City shall provide notice to the Telecom Operator last known 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. Removal by City. 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 the 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 Section D. EXHIBIT "B" Section 20.18.020 Residential Zoning Districts Land Uses and Permit Requirements Section 20.20.020 Commercial Zoning Districts Land Uses and Permit Requirements Section 20.22.020 Mixed -Use Zoning Districts Land Uses and Permit Requirements Section 20.24.020 Industrial Zoning Districts Land Uses and Permit Requirements Section 20.26.020 Special Purpose Zoning Districts Land Uses and Permit Requirements A. 20.18.020 Residential Zoning Districts Land Uses and Permit Requirements. A. Allowed Land Uses. 1. Table 2 -1 indicates the uses allowed within each residential zoning district and the permit required to establish the use, if any, in compliance with Part 5 of this title (Planning Permit Procedures). 2. Residential uses represent the primary allowed use, and only those additional uses that are complementary to, and can exist in harmony with, the residential character of each zoning district may be allowed as accessory, conditionally permitted, and/or temporary uses. B. Prohibited Land Uses. A table cell with " —" means that the listed land use is prohibited in that zoning district. C. Applicable Regulations. The last column in the table ( "Specific Use Regulations ") may include a reference to additional regulations that apply to the use. Residential Zoning Districts Permit Requirements P Permitted by Right TABLE 2 -1 CUP Conditional Use Permit (Section 20.52.020) ALLOWED USES AND PERMIT CUP- Conditional Use Permit in Residential Zoning Districts REQUIREMENTS HO (Section 20.52.030 MUP Minor Use Permit (Section 20.52.020) LTP Limited Term Permit (Section 20.52.0401 — Not Allowed Land Use See Part 7 of this title for land use definitions. See Chapter 20_12 for unlisted R -BI RM Specific Use uses. R -A R -1 ** R -2 RMD Regulations Residential Uses Home Occupations P P P P Section 20.48.110 Single -Unit Dwellings— Attached — — P P Section 20.48. 180 Single -Unit Dwellings— Detached P P P P Section 20.48.180 Multi -Unit Dwellings — — — P Two -Unit Dwellings — — P P Section 20.48.180 Accessory Dwelling Units MUP MUP I — Visitor Accommodations, Residential Bed and Breakfast Inns Short-Term Lodging Care Uses Adult Day Care Small (6 or fewer) Large (7 to 14) Child Day Care Small (8 or fewer) Large (9 to 14) Day Care, General Residential Care Facilities Limited (6 or fewer) Licensed Limited (6 or fewer) Unlicensed General (7 or more) Licensed General (7 or more) Unlicensed Integral Facilities /Integral Was Parolee- Probationer Home CUP -HO CUP -HO I Section 20.48.060 P P I Chapter 5.95 P IP IP I Section 20.48.070 P MUP MUP MUP I Section 20.48.070 P IP IF, P MUP MUP MUP ICU HO CUP -HO Parking Facility MUP MUP IMUP MUP Convalescent Facilities — — — CUP Utilities, Minor P P P P Utilities, Major CUP CUP CUP CUP Section 20.48.070 Section 20.48.070 YT115 Tilf IM1.111vll" Section 20.48.170 Section 20.48.170 Section 20.48.170 Section 20.48.170 Chapter 20.49 Accessory Structures and Uses P IP IP IP Animal- Keeping P P P P Section 20.48.040 Personal Property Sales P P P P Section 20.48.150 Special Events See Chapter 11_03 Temporary Uses I LTP I LTP I LTP I LTP Section 20.52.040 Uses Not Listed. Land uses that are not listed in the table above, or are not shown in a particular zoning district, are not allowed, except as provided by Chapter 20_12 (Interpretation of Zoning Code Provisions). Includes R -1- 6,000, R -1- 7,200, and R- 1- 10,000. A. 20.20.020 Commercial Zoning Districts Land Uses and Permit Requirements. A. Allowed Land Uses. Tables 2-4 and 2 -5 indicate the uses allowed within each zoning district and the permit required to establish the use, if any, in compliance with Part 5 of this title (Planning Permit Procedures). B. Prohibited Land Uses. Any table cell with " —" means that the listed land use is prohibited in that specific zoning district. C. Applicable Regulations. The last column in the tables ( "Specific Use Regulations") may include a reference to additional regulations that apply to the use. Commercial Office Zoning Districts Permit Requirements P Permitted by Right TABLE 2.4 ALLOWED USES AND PERMIT CUP Conditional Use Permit (Section 20.52.020) REQUIREMENTS MUP Minor Use Permit (Section 20.52.020) LTP Limited Term Permit (Section 20.52.040) — Not allowed Land Use See Part 7 of this title for Specific Use land use definitions. OA OG OM OR Regulations See Chapter 20_12 for unlisted uses. Industry, Manufacturing and Processing, and Warehousing Uses Handicraft Industry P Industry, Small (less than 5,000 sq. MUP — — ft.) Personal Storage (mini storage) P — — — Research and Development, P P P P General Research and Development, MUP MUP MUP Restricted Recreation, Education, and Public Assembly US-"- Assembly /Meeting Facilities Small -5,000 sq. ft. or less (religious assembly may be larger than 5,000 sq. ft.) CUP CUP CUP CUP Commercial Recreation and Entertainment CUP Cultural Institutions P — — P Schools, Public and Private CUP CUP — CUP Schools, Related to Medical Professions MUP MUP MUP MUP Retail Trade Uses Alcohol Sales (off -sale) MUP MUP MUP MUP Section 20.48.030 Alcohol Sales (off- sale), Accessory Only P MUP MUP P Retail Sales (less than 10,000 sq. ft.) MUP P P P Retail Sales (10,000 sq. ft. or greater) CUP — — — Pharmacy, Medical Supplies P P P P ,Service Uses — Business, Financial, Medical, and Professional ATM P P P P Convalescent Facilities — — P — Emergency Health Facilities /Urgent Care P P P P Financial institutions and Related Services P P P' P Hospitals — — CUP — Offices— Business P P P P Offices— Corporate P P — P Offices — Medical, and Dental P P P P Offices — Professional P P P P Outpatient Surgery Facility P P P P Service Uses — General Ambulance Services P — P — Animal Sales and Services Animal Boarding /Kennels P CUP Section 20.48.050 Animal Grooming P MUP — MUP Section 20.48.050 Veterinary Services P CUP CUP CUP Section 20.48.050 Artists' Studios P P — P Catering Services P P — P Day Care — General MUP MUP MUP MUP Eating and Drinking Establishments Accessory Food Service (open to public) P P P P Section 20.48.090 Bars, Lounges, and Nightclubs CUP — — CUP Section 20.48.090 Fast Food (no late hours) (1)(2) P /MUP P /MUP — — Section 20.48.090 Fast Food (with late hours) (1) MUP MUP — — Section 20.48.090 Food Service (no alcohol, no late hours) (1)(2) P /MUP P /MUP P /MUP P /MUP Section 20.48.090 Food Service (no late hours) (1) MUP MUP MUP MUP Section 20.48.090 Food Service (with late hours) (1) CUP CUP CUP CUP Section 20.48.090 Take -Out Service, Limited (2) P /MUP P /MUP P /MUP P /MUP Section 20.48.090 Emergency Shelters P — — — Section 20.48.100 Funeral Homes and Mortuaries, without crematorium MUP MUP MUP MUP Funeral Homes and Mortuaries, with crematorium CUP CUP CUP CUP Health /Fitness Facilities Small -2,000 sq. ft. or less P P P P Large —Over 2,000 sq. ft. MUP MUP MUP MUP Laboratories P P P P Maintenance and Repair Services P P — P Massage Establishments MUP MUP MUP MUP Chapter 5.50 Section 20.48.120 Massage Services, Accessory MUP MUP MUP MUP Section 20.48.120 Personal Services, General P P P P Personal Services, Restricted MUP MUP MUP MUP Postal Services P P P P Printing and Duplicating Services P P P P Smoking Lounges — — — Visitor Accommodations, Nonresidential Hotels. Motels, and Time Shares CUP — CUP — Transportation, Communications, and Infrastructure Uses Communication Facilities P P — P Heliports and Helistops (3) CUP — CUP CUP Parking Facilities MUP MUP MUP MUP Parking Structures, adjacent to residential district — CUP CUP — Utilities, Minor P P P P Utilities, Major CUP CUP CUP CUP Wireless Telecommunication CUP /MUP /LTP CUP /MUP /LTP CUP /MUP /LTP CUP /MUP /LTP Chapter 20.49 Facilities Fac lines Vehicle Rental, Sale, and Service Uses Vehicle Sales, Office Only P P — P Vehicle /Equipment Rentals Office Only P P — P Vehicles for Hire CUP — — — Vehicle /Equipment Rentals and Sales CUP Vehicle /Equipment Repair General CUP Limited MUP Vehicle /Equipment Services Automobile Washing /Detailing, self- service or accessory MUP MUP — MUP Service Stations CUP Section 20.48.2 0 Other Uses Accessory Structures and Uses P P P P Drive - Through Facilities MUP MUP MUP MUP Section 20.48.080 Outdoor Storage and Display P P P P Section 20.48.140 Special Events Chapter 11_03 Temporary Uses LTP LTP LTP LTP Section 20.52.040 Uses Not Listed. Land uses that are not listed in the table above, or are not shown in a particular zoning district are not allowed, except as otherwise provided by Section 20.12.020 (Rules of Interpretation). (1) Late Hours. Facilities with late hours shall mean facilities that offer service and are open to the public past 11:00 p.m. any day of the week. (2) Permitted or Minor Use Permit Required. a. A minor use permit shall be required for any use located within five hundred (500) feet, property line to property line, of any residential zoning district. b. A minor use permit shall be required for any use that maintains late hours. (3) Applicants for City approval of a heliport or helistop shall provide evidence that the proposed heliport or helistop complies fully with State of California permit procedures and with all conditions of approval imposed by the Federal Aviation Administration (FAA), the Airport Land Use Commission for Orange County (ALUC), and by the Caltrans Division of Aeronautics. Commercial Retail Zoning Districts Permit Requirements TABLE 2 -5 P Permitted by Right ALLOWED USES CUP Conditional Use Permit (Section 20.52.020) AND PERMIT REQUIREMENTS MUP Minor Use Permit (Section 20.52.020) LTP Limited Term Permit (Section 20.52.040) — Not allowed Land Use Specific See Part 7 of cc CG CM CN CV Use this title for land Regulations use definitions. See Chapter 20_12 for unlisted uses. Industry. Manufacturing and Processing, and Warehousing Uses Handicraft Industry P P P P P Recreation, Education, and Public Assembly Uses Assembly /Meeting Facilities CUP CUP CUP CUP CUP Commercial Recreation and Entertainment CUP CUP CUP CUP CUP Cultural Institutions P P MUP — P Schools, Public and Private — CUP CUP CUP CUP Retail Trade Uses Alcohol Sales (off- sale) MUP MUP MUP MUP MUP Section 20.48.030 Alcohol Sales (off- sale), Accessory Only P P P P P Bulk merchandise — P — P — Marine Rentals and Sales Boat Rentals and Sales — CUP CUP — CUP Marine Retail Sales P P P — P Retail Sales P P P P — Visitor- Serving Retail P P 'Service Uses— Business, Financial, Medical, and Professional ATM P P P P P Emergency Health Facility /Urgent Care (above 1st floor only) MUP MUP — — MUP Financial Institutions P P — P P and Related Services Offices— Corporate (above 1 st floor only) P P P P — Offices— Business P P P P P Offices — Medical and Dental P P — P P Offices— Professional (above 1 st Floor only) P P P P P Outpatient Surgery Facility (above 1st floor only) MUP MUP P — Service Uses — General Ambulance Services I — I MUP — — — Animal Sales and Services Animal Boarding /Kennels CUP CUP — CUP — Section 20.48.050 Animal Grooming P P — P P Section 20.48.050 Animal Retail Sales P P — P P Section 20.48.050 Veterinary Services CUP CUP — CUP — Section 20.48.050 Artists' Studios P P P P P Catering Services — P P P P Day Care, General MUP MUP — MUP MUP Eating and Drinking Establishments Accessory Food Service (open to public) P P P P P Section 20.48.090 Bars, Lounges, and Nightclubs CUP CUP CUP CUP CUP Section 20.48.090 Fast Food (no late hours) (1)(2) P /MUP 1 PIMUP 1 P /MUP 1 P /MUP 1 P /MUP 1 Section 1 20.48. 90 Feat Food (with I MUP I MUP I MUP I MUP I MUP I Section late hours) (1) 20.48.090 Food Service (no P /MUP P /MUP P /MUP P /MUP P /MUP Section alcohol, no late 20.48.090 hours) (1)(2) Food Service (no MUP MUP MUP MUP MUP Section late hours) (1) 20.48.090 Food Service (with CUP CUP CUP CUP CUP Section late hours) (1) 20.48.090 Take -Out Service, P /MUP P /MUP P /MUP PMUP P /MUP Section Limited (2) 20.48.090 Funeral Homes and — MUP — — — Mortuaries, without crematorium Funeral Homes and CUP — Mortuaries, with crematorium Health /Fitness Facilities Small -2,000 sq. P P P P P ft. or less Large —Over MUP MUP MUP MUP MUP 2,000 sq. ft. Laboratories — P — — — Maintenance and P P — P — Repair Services Marine Services Boat Storage — — CUP — — Boat Yards CUP — — Entertainment and P — P Title 17 Excursion Services Marine Service — — CUP — CUP Stations Water — — MUP — MUP Transportation Services Massage Establishments MUP MUP MUP MUP Chapter 5.50 Section 20.48.120 Massage Services, Accessory MUP MUP — MUP MUP Section 20.48.120 Nail Salons P P — P P Personal Services, General P P — P P Personal Services, Restricted MUP MUP — MUP MUP Studio P P — P P Postal Services P P — P P Printing and Duplicating Services P P — P — Recycling Facilities Collection Facility —Small MUP MUP — MUP — Section 20.48.160 Smoking Lounges — — — — — Visitor Accommodations Bed and Breakfast Inns MUP MUP MUP MUP Section 20.48.060 Hotels and Motels CUP CUP CUP CUP RV Parks CUP Time Share Facilities — CUP — CUP Section 20.48.220 Transportation, Communications, and Infrastructure Uses Communication Facilities MUP P MUP — P Marinas Title 17 Marina Support Facilities — — MUP — MUP Parking Facilities MUP MUP MUP MUP MUP Parking Structure, adjacent to CUP CUP — CUP CUP residential zoning district Utilities, Minor P P P P P Utilities, Major CUP CUP CUP CUP CUP Wireless Telecommunication MUP /CUP /LTP MUP /CUP /LIP MUP /CUP/LTP MUP/CUP/LTP MUP /CUP /LIP Chanter 20_49 Facilities TA'Anommi -on Fac4ities ChapteF jac�.7q Vehicle Rental, Sale, and Service Uses ■ tii Vehicle /Equipment Rentals General — CUP CUP Office Only P P P P P Limited P P P — P Vehicles for Hire — CUP — — CUP Vehicle /Equipment Repair General — CUP — — — Limited MUP MUP MUP — — Vehicle Sales, Office Only P P P P P Vehicle /Equipment Services Automobile Washing /Detailing, full service — MUP — MUP MUP Automobile Washing /Detailing, self- service or accessory P P — P MUP Service Stations CUP CUP — CUP CUP Section 20.48.210 Other Uses Accessory Structures and Uses P P P P P Drive - Through MUP MUP MUP MUP MUP Section Facilities 20.48.080 Special Events Chapter 11_03 Outdoor Storage and P P P P P Section Display 1 20.48.140 Temporary Uses LTP LTP LTP LTP LTP Section 20.52.040 Uses Not Listed. Land uses that are not listed in the table above, or are not shown in a particular zoning district, are not allowed, except as otherwise provided by Section 20.12.020 (Rules of Interpretation). (1) Late Hours. Facilities with late hours shall mean facilities that offer service and are open to the public past 11:00 p.m. any day of the week. (2) Permitted or Minor Use Permit Required. a. A minor use permit shall be required for any use located within five hundred (500) feet, property line to property line, of any residential zoning district. b. A minor use permit shall be required for any use that maintains late hours. A. 20.22.020 Mixed -Use Zoning Districts Land Uses and Permit Requirements. A. Allowed Land Uses. Tables 2 -8, 2 -9, and 2 -10 indicate the uses allowed within each zoning district and the permit required to establish each use, in compliance with Part 5 of this title (Planning Permit Procedures). B. Prohibited Land Uses. Any table cell with " —" means that the listed land use is prohibited in that specific zoning district. C. Applicable Regulations. The last column in the tables ( "Specific Use Regulations ") may include a reference to additional regulations that apply to the use. Mixed -Use Zoning Districts Permit Requirements P Permitted by Right TABLE 2 -8 ALLOWED USES AND CUP Conditional Use Permit (Section 20.52.020 PERMIT REQUIREMENTS MUP Minor Use Permit (Section 20.52.020) LTP Limited Term Permit (Section 20.52.040 — Not Allowed Land Use See Part 7 of this title for MU-CV/115th Specific Use land use definitions. MU -V MU -MM (6) MU -DW St. (7) Regulations See Chapter 20_12 for unlisted uses. Industry, Manufacturing and Processing, Warehousing Uses Handicraft Industry P P P P Industry, Marine - Related — CUP — MUP Research and Development P P P P Recreation, Education, and Public Assembly Uses Assembly /Meeting Facilities CUP CUP CUP CUP Commercial Recreation and CUP CUP CUP CUP Entertainment Cultural Institutions P P P P Schools. Public and Private CUP I CUP I CUP CUP Residential Uses Single -Unit Dwellings Located on lstfloor — — — P (3) Section 20.48.130 Located above 1st floor P (1) — — P (3) Section 20.48.130 Multi -Unit Dwellings Located on lstfloor — P (1)(2) P (1) P (3) Section 20.48.130 Located above 1st floor P (1) P (1)(2) P (1) P (3) Section 20.48.130 Two -Unit Dwellings Located on lstfloor P (3) Section 20.48.130 Located above 1 st floor P (1) P (3) Section 20.48.130 Home Occupations P P (1) P P Section 20.48.130 Live -Work Units P P (1)(2) P P (3) Care Uses Adult Day Care Small (6 or fewer) P P P P Child Day Care Small (8 or fewer) P P P P Section 20.48.070 Day Care, General — MUP — MUP Section 20.48.070 Retail Trade Uses Alcohol Sales (off -sale) MUP MUP — MUP Section 20.48.030 Alcohol Sales (off - sale), Accessory Only P P P P Marine Rentals and Sales Boat Rentals and Sales CUP P — CUP Marine Retail Sales P P P P Retail Sales P P P P Service Uses — Business, Financial, Medical, and Professional ATMs P P P P Emergency Health Care /Urgent Care MUP MUP MUP MUP Financial Institutions and Related Services P P P P Offices — Business P P P P Offices—Medical and Dental P P P P Offices—Professional P P L P P Service Uses — General Animal Sales and Services Animal Grooming P P P P Section 20.48.050 Animal Retail Sales P P — P Section 20.48.050 Veterinary Services CUP CUP — Section 20.48.050 Artists' Studios P P P P Eating and Drinking Establishments Accessory food service (open to public) P P P P Section 20.48.090 Fast Food (no late hours) (4)(5) P /MUP P /MUP — P /MUP Section 20.48.090 Fast Food (with late hours) (4) MUP MUP — MUP Section 20.48.090 Food Service (no late hours) (4)(5) P /MUP P /MUP — P /MUP Section 20.48.090 Food Service (with late hours) (4) CUP CUP — CUP Section 20.48.090 Take -Out Service, Limited (5) P /MUP P /MUP — P /MUP Section 20.48.090 Health /Fitness Facilities Small -2,000 sq. ft. or less P P MUP P Large —Over 2,000 sq. It CUP CUP — CUP Laboratories — — P — Maintenance and Repair Services P P — P Marine Services Entertainment and Excursion Services P P P Title 17 Marine Service Stations CUP — — — Personal Services Massage Establishments MUP MUP MUP MUP Chapter 5.50 Section 20.48.120 Massage Services, Accessory MUP MUP MUP MUP Section 20.48.120 Nail Salons P P P P Personal Services, General P P P P Personal Services, Restricted MUP MUP MUP MUP Studio MUP MUP MUP MUP Postal Services P P P P Printing and Duplicating Services P P P P Smoking Lounges — Visitor Accommodations Hotels, Motels, and Time Shares CUP CUP — CUP' Bed and Breakfast Inns — CUP — — Transportation, Communications, and Infrastructure Uses Parking Facility MUP MUP MUP (2) MUP (2) Marinas Title 17 Marina Support Facilities MUP MUP — MUP Utilities„ Minor P P P P Utilities, Major CUP CUP CUP CUP reless Telecommunication MUP /CUP /LTP MUP /CUP /LTP MUP /CUP /LTP MUP /CUP /LTP Chapter 20.49 Facilities Chapt8F� Vehicle Rental, Sale, and Service Uses Vehicle /Equipment Rentals Office Only P P P P Limited (no outdoor storage) MUP — — Vehicle /Equipment Repair Limited — MUP — — Vehicle Sales — CUP — — Vehicle Sales, Office Only P P P — Vehicle /Equipment Services Automobile Washing — CUP — — Service Stations — CUP — — Section 20.48.210 Other Uses Accessory Structures and Uses MUP MUP MUP MUP Outdoor Storage and Display MUP MUP MUP MUP Section 20.48.140 Personal Property Sales P P P P Section 20.48.150 Special Events Chapter 11_03 Temporary Uses LTP LTP LTP LTP Section 20.52.040 Uses Not Listed. Land uses that are not listed in the table above, or are not shown in a particular zoning district, are not allowed, except as otherwise provided by Section 20.12.020 (Rules of Interpretation). (1) Allowed only as part of a mixed -use development. Refer to Section 20.48.130 (Mixed -Use Projects) for additional development standards. (2) Not allowed to front onto Coast Highway. Coast Highway frontage shall be limited to nonresidential uses. See Table 2 -10 (Development Standards for Vertical and Horizontal Mixed -Use Zoning Districts). (3) Not allowed on lots at street intersections unless part of a mixed -use or live -work structure. (4) Late Hours. Facilities with late hours shall mean facilities that offer service and are open to the public after 11:00 p.m. any day of the week. (5) Permitted or Minor Use Permit Required. a. A minor use permit shall be required for any use located within five hundred (500) feet, property line to property line, of any residential zoning district. b. A minor use permit shall be required for any use that maintains late hours. (6) Properties fronting on Coast Highway shall be developed with nonresidential uses as allowed in Table 2- 9. Properties to the rear of the commercial frontage may be developed for freestanding nonresidential uses, multi -unit residential dwelling units, or mixed -use structures that integrate multi -unit residential above the ground floor with nonresidential uses on the ground floor. See Table 2 -10 (Development Standards for Vertical and Horizontal Mixed -Use Zoning Districts). (7) Mixed -use or commercial structures are required on lots at street intersections and are allowed, but not required, on other lots. Mixed -Use Zoning Districts Permit Requirements P Permitted by Right CUP Conditional Use Permit TABLE 2 -9 (Section 20.52.020) ALLOWED USES AND PERMIT REQUIREMENTS Minor Use Permit (Section MUP 20.52.020) Limited Term Permit LTP (Section 20.52.040) — Not allowed Land Use Specific Use See Part 7 of this title for land use definitions. MU -W1 (5)(6) MU -W2 Regulations See Chapter 20_12 for unlisted uses. Industry, Manufacturing and Processing, Warehousing Uses Handicraft Industry P P Industry, Marine - Related P P Research and Development P P Recreation, Education, and Public Assembly Uses Assembly /Meeting Facilities Small -5,000 sq. ft. or less (religious assembly may be larger than 5,000 sq. ft.) CUP CUP Commercial Recreation and Entertainment CUP CUP Cultural Institutions P P Parks and Recreational Facilities I CUP CUP Schools, Public and Private CUP CUP Residential Uses Single -Unit Dwellings Located on 1st floor — — Located above 1st floor P (1) P (2) Section 20.48.130 Multi -Unit Dwellings Located on 1st floor Located above 1st floor P (t ) P (2) Section 20.48.130 Two -Unit Dwellings Located on 1st floor — — Located above 1 st floor P (t) P (2) Home Occupations P P (2) Section 20.48.110 Gate U _ Adult Day Care Small (6 or fewer) P P Child Day Care Small (8 or fewer) P P Section 20.48.070 Day Care, General — MUP Section 20.48.070 Retail Trade Uses Alcohol Sales (off -sale) MUP MUP Section 20.48.030 Alcohol Sales (off - sale), Accessory Only P P Marine Rentals and Sales Boat Rentals and Sales P P Marine Retail Sales P P Retail Sales P P Visitor - Serving Retail P P Service Uses — Business, Financial, Medical, and Professional ATMs P P Emergency Health Facilities /Urgent Care — P Financial Institutions and Related Services (above 1st floor only) P P Offices— Business P P Offices — Medical and Dental (above 1st floor only) — P Offices— Profession P P Service Uses — General Animal Retail Sales MUP MUP Section 20.48.050 Artists' Studios P P Eating and Drinking Establishments Accessory Food Service (open to public) P P Section 20.48.090 Fast Food (no late hours) (3)(4) P /MUP P /Mup Section 20.48.090 Fast Food (with late hours) (3) MUP MUP Section 20.48.090 Food Service (no alcohol, no late hours) (3)(4) P /MUP P /MUP Section 20.48.090 Food Service (no late hours) (3) MUP MUP Section 20.48.090 Food Service (with late hours) (3) CUP CUP Section 20.48.090 Take -Out Service— Limited (3) (4) P!MUP P /MUP Section 20.48.090 Health /Fitness Facilities Small -2,000 sq. ft. or less P P Maintenance and Repair Services P P Marine Services Boat Storage CUP CUP Boat Yards CUP CUP Entertainment and Excursion Services P P Marine Service Stations CUP CUP Water Transportation Services P P Personal Services Massage Establishments MUP MUP Chapter 5.50 Section 20.48.120 Massage Services, Accessory MUP MUP Section 20.48.120 Nail Salons P P Personal Services, General P P Personal Services, Restricted MUP MUP Smoking Lounges Visitor Accommodations Hotels, Motels, Bed and Breakfast Inns, and Time Shares CUP CUP Transportation, Communications, and Infrastructure Parking Facilities MUP MUP Communication Facilities P P Heliports and Helistops (7) CUP CUP Marinas Title 17 Marina Support Facilities MUP MUP Utilities, Minor P P Utilities, Major CUP CUP ireless Telecommunication Facilities MUP /CUP /LTP MUP /CUP /LTP Chapter 20.49 ChapteF� Other Uses Accessory Structures and Uses MUP MUP Outdoor Storage and Display MUP MUP Section 20.48.140 Personal Property Sales P P Section 20.48.150 Special Events Chapter 11_03 Temporary Uses LTP LTP Section 20.52.040 Uses Not Listed. Land uses that are not listed in the table above, or are not shown in a particular zoning district, are not allowed, except as otherwise provided by Section 20.12.020 (Rules of Interpretation). (1) May only be located on lots with a minimum of two hundred (200) lineal feet of frontage on Coast Highway. Refer to Section 20.48.130 (Mixed -Use Projects) for additional development standards. (2) May only be located above a commercial use and not a parking use. Refer to Section 20.48.130 (Mixed- Use Projects) for additional development standards. (3) Late Hours. Facilities with late hours shall mean facilities that offer service and are open to the public past 11:00 p.m. any day of the week. (4) Permitted or Minor Use Permit Required. a. A minor use permit shall be required for any use located within five hundred (500) feet, property line to property line, of any residential zoning district. b. A minor use permit shall be required for any use that maintains late hours. (5) Approval of a minor site development review, in compliance with Section 20.52.080, shall be required prior to any development to ensure that the uses are fully integrated and that potential impacts from their differing activities are fully mitigated. (6) A minimum of fifty (50) percent of the square footage of a mixed -use development shall be used for nonresidential uses. (7) Applicants for City approval of a heliport or helistop shall provide evidence that the proposed heliport or helistop complies fully with State of California permit procedures and with any and all conditions of approval imposed by the Federal Aviation Administration (FAA), the Airport Land Use Commission for Orange County (ALUC), and by the Caltrans Division of Aeronautics. A. 20.24.020 Industrial Zoning District Land Uses and Permit Requirements. A. Allowed Land Uses. Table 2 -12 indicates the uses allowed within each zoning district and the permit required to establish each use, in compliance with Part 5 of this title (Planning Permit Procedures). B. Prohibited Land Uses. Any table cell with " —" means that the listed land use is prohibited in that specific zoning district. C. Applicable Regulations. The last column in the tables ( "Specific Use Regulations ") may include a reference to additional regulations that apply to the use. Industrial Zoning District Permit Requirements P Permitted by Right TABLE 2 -12 Conditional Use Permit (Section ALLOWED USES AND PERMIT CUP 20.52.020) REQUIREMENTS MUP Minor Use Permit (Section 20.52.020 LTP Limited Term Permit (Section 20.52.040) — Not allowed Land Use See Part 7 of this title for land use IG Specific Use Regulations definitions. See Chapter 20_12 for unlisted uses. Industry, Manufacturing and Processing, Warehousing Uses Food Processing P Handicraft Industry P Industry Small- 10,000 sq. ft. or less P Large —Over 10,000 sq. ft. MUP Personal Storage (Mini Storage) MUP Research and Development, General P Research and Development, Restricted MUP Warehousing Small- 10,000 sq. ft. or less P Large —Over 10,000 sq. ft MUP Wholesaling P Recreation, Education, and Public Assembly Uses Assembly /Meeting Facilities CUP Retail Trade Uses Alcohol Sales (off -sale) MUP Section 20.48.030 Alcohol Sales (off - sale), Accessory Only P Building Materials and Services P Contractor's Storage Yards MUP Marine Rentals and Sales Boat Rentals and Sales MUP Marine Retail Sales P Retail Sales P Service Uses — Business, Financial, Medical, and Professional ATMs P Offices — Business and Professional P Service Uses — General Ambulance Services P Animal Sales and Services Animal Boarding /Kennels MUP Section 20.48.050 Animal Grooming P Section 20.48.050 Animal Hospitals /Clinics MUP Section 20.48.050 Animal Retail Sales P Section 20.48.050 Catering Services P Eating and Drinking Establishments Take -Out Service — Limited P Section 20.48.090 Funeral Homes and Mortuaries CUP Health /Fitness Facilities Small -2,000 sq. ft. or less P Large —Over 2,000 sq. ft. MUP Laboratories P Maintenance and Repair Services P Marine Services Boat Storage MUP Boat Yards MUP Personal Services Studios P Postal Services P Printing and Duplicating Services P Recycling Facilities Collection Facility —Large CUP Section 20.48.160 Collection Facility —Small MUP Section 20.48.160 Transportation, Communications, and Infrastructure Uses Communication Facilities P Heliports and Helistops (1) CUP Parking Facilities P Utilities, Minor P Utilities, Major CUP Wireless Telecommunication Facilities MUP /CUP /LTP Chapter 20 49 Chapter 7=7A Vehicle Rental, Sale, and Service Uses Vehicle /Equipment Rentals Office Only P Limited P Vehicles for Hire CUP Vehicle /Equipment Rentals and Sales MUP Vehicle /Equipment Repair General CUP Limited MUP Vehicle /Equipment Services Automobile Washing /Detailing MUP Service Stations CUP Section 20.48.210 Vehicle Storage MUP Other Uses Accessory Structures and Uses P Caretaker Residence P Drive - Through Facilities CUP Section 20.48.080 Outdoor Storage and Display MUP Section 20.48.140 Special Events Chapter 11_03 Temporary Uses LTP Section 20.52.040 Uses Not Listed. Land uses that are not listed in the table above, or are not shown in a particular zoning district, are not allowed, except as otherwise provided by Section 20.12.020 (Rules of Interpretation). (1) Applicants for City approval of a heliport or helistop shall provide evidence that the proposed heliport or helistop complies fully with State of California permit procedures and with any and all conditions of approval imposed by the Federal Aviation Administration (FAA), the Airport Land Use Commission for Orange County (ALUC), and by the Caltrans Division of Aeronautics. A. 20.26.020 Special Purpose Zoning Districts Land Uses and Permit Requirements. A. Allowed Land Uses. Table 2 -14 indicates the uses allowed within each zoning district and the permit required to establish each use, in compliance with Part 5 of this title (Planning Permit Procedures). B. Prohibited Land Uses. Any table cell with " —" means that the listed land use is prohibited in that specific zoning district. C. Applicable Regulations. The last column in the tables ( "Specific Use Regulations ") may include a reference to additional regulations that apply to the use. Special Purpose Zoning Districts Permit Requirements P Permitted by Right TABLE 2 -14 ALLOWED USES AND CUP Conditional Use Permit (Section 20.52.020) PERMIT REQUIREMENTS MUP Minor Use Permit (Section 20.52.0201 LTP Limited Term Permit (Section 20.52.040 — Not allowed Land Use See Part 7 of this title for Specific Use land use definitions. OS PF PI PR Regulations See Chapter 20_12 for unlisted uses. Recreation, Education, and Public Assembly Uses Assembly /Meeting Facilities — MUP MUP MUP Commercial Recreation and — — MUP CUP Entertainment Cultural Institutions — MUP MUP MUP Parks and Recreational Facilities Active — MUP MUP MUP Passive MUP MUP MUP MUP Marine and Wildlife Preserves MUP — — — Schools, Public and Private — MUP MUP — Care Uses Congregate Care Home — MUP Convalescent Facilities MUP — Day Care, General — MUP MUP — Section 20.48.070 Emergency Health Facility /Urgent Care — — MUP — Hospital — — MUP — Residential Care, Accessory Use Only — MUP MUP Retail Trade Uses Alcohol Sales (on- sale), Accessory Only — — MUP CUP _L_:x___ Service Uses — General Eating and Drinking Establishments Accessory (open to public) — — MUP MUP Section 20.48.090 Emergency Shelters — — P — Section 20.48.100 Governmental Facilities — MUP — MUP Marine Services —Boat Storage and Boat Yard, Accessory Only — MUP MUP MUP Transportation, Communications, and Infrastructure Parking Facilities, Accessory Only — MUP MUP MUP Heliports and Helistops (1) — MUP — — Marinas MC Title 17 Marina Support Facilities — MUP MUP MUP Utilities, Minor P P P P Utilities, Major CUP CUP CUP CUP Wireless Telecommunication — j2) MUP /CUP /LTP MUP /CUP /LTP MUP /CUP /LTP Chaoter20.49 Facilities rhapte. �c �n Other Uses Accessory Structures and Uses MUP MUP MUP MUP Special Events Chapter 11_03 Temporary Uses LTP LTP LTP LTP Section 20.52.040 Uses Not Listed. Land uses that are not listed in the table above, or are not shown in a particular zoning district, are not allowed, except as otherwise provided by Section 20.12.020 (Rules of Interpretation). (1) Applicants for City approval of a heliport or helistop shall provide evidence that the proposed heliport or helistop complies fully with State of California permit procedures and with any and all conditions of approval imposed by the Federal Aviation Administration (FAA), the Airport Land Use Commission for Orange County (ALUC), and by the Caltrans Division of Aeronautics. (2) Wireless Telecommunication Facilities are prohibited In the OS Zoning District unless collocated on an existing Utility Tower within a utility easement area. or collocated on an existing Telecom Facility (Section 20.49.050.6) Attachment No. PC 2 Summary of Proposed Changes to Telecom Ordinance ATTACHMENT No. PC 2 Summary of Proposed Changes to Telecom Ordinance Existing Section Proposed Changes /Comments Proposed Section 15.70.010 Purpose and Intent No policy change; minor wording changes to state the provisions of this Chapter apply to all providers and Replaced by operators of wireless services whether authorized by state or federal regulations. 20.49.010 Purpose and Intent 15.70.020 General Provisions . Revised to require an application for a conditional use permit (CUP), minor use permit (MUP), or limited Replaced by term permit for any telecom facility, depending on method of installation, or duration of telecom facility. 20.49.020 General Provisions . Revised to include requirement for encroachment permits for facilities located in the public right -of -way. • Revised to include requirement of a license agreement for any facility located on City -owned property. Updated to identify types of facilities that are exempt from regulations of this Chapter. Includes exemption of systems installed or operated by the City (as currently provided for in existing Section 15.70.110). Provision added regarding legal nonconforming facilities. 15.70.030 Definitions . Definitions added to reflect current industry standards (words such as "base station," "wireless tower," Replaced by or "distributed antenna system (DAS) "). 20.49.030 Definitions . Definitions updated to ensure consistency with Chapter 13.20 (Public Rights -of -Way) of the NBMC. • Definitions added to identify types of telecom facilities as an antenna class based on aesthetic impacts and method of installation. 15.70.040 Available Technology No policy change; minor wording changes only. Replaced by 20.49.040 Available Technology 15.70.050 Height and Location . Height regulations moved to "Development and Design Standards" in proposed Section 20.49.060 Replaced by (page 2). 20.49.050 Location Preferences . Location categories (such as a "wall, roof or existing co- location structure or site ") identified as a new distinct antenna class. Examples of typical telecom facilities provided for each antenna class. Minor changes to priority order of location preference of a telecom facility, based on antenna class. Prohibited locations updated to prohibit telecom facilities on single - family development, two- family development, or multi -unit residential developments consisting of 4 dwelling units or less. Exception to allow telecom facilities in an Open Space zoning district when collocated on an existing nonconforming telecom facility or site. Regulations for installations in the public right-of-way added. Page 1 Existing Section Proposed Changes /Comments Proposed Section 15.70.060 Design Standards . Height regulations moved to this section (from existing Section 15.70.050). Replaced by . Height subsection revised to allow telecom facility antennas, equipment, or screen structures to be 20.49.060 General Development installed: and Design Standards . up to 5 feet above base height limit for the zoning district in which the telecom facility is located with approval of MUP, or . up to the maximum height limit with approval of a CUP. For example, for a commercial retail zoning district within the Shoreline Height Limit Zone, the base height limit is 26 feet with a flat roof, or 31 feet with a sloped roof, and the maximum height limit is 35 feet with a flat roof, or 40 feet with a sloped roof. The existing telecom ordinance allows antennas to be installed up to the maximum height limit, or in this example up to 35 feet if disguised or screened within a flat roof structure or 40 feet if disguised or screened within a sloped roof structure. Provision added to require telecom facilities to comply with Airport Environs Land Use Plan and Airport Land Use Commission review requirements. Setback requirements updated to require an additional setback or "fall zone" for ground- mounted "wireless towers" in the event of involuntary damage, which would be the greater distance of either the required setback established by the Zoning Code or 110% of the height of the "wireless tower." Detailed design and screening techniques added based on antenna class. • Requirement added for evaluation of potential impacts to public views. • Maintenance requirements added. 15.70.070 Permit Review . Table added to reflect type of permit required based on location of facility, and antenna class (i.e., Procedures MUP, CUP, or LTP). Replaced by . Public notice and public hearing requirements added, consistent with Chapter 20.62 of the Zoning 20.49.070 Permit Review Code. All applications for a telecom facility require a public hearing before the Zoning Administrator or Procedures Planning Commission, with appeal provisions to the City Council. • Findings for telecom facilities added, including additional findings for applications which request to exceed height limits. 15.70.080 Radiation Report • Radiation report requirements moved to proposed Section 20.49.110 (page 3). Proposed New Section . Process for implementation of permits, time limits, and extensions for telecom facilities added, 20.49.080 Permit Implementation, consistent with Chapter 20.54 of Zoning Code. Time Limits, Duration, and Appeals . Appeal procedures consistent with Chapter 20.64 of the Zoning Code added, allowing any interested party to appeal a decision on an application. 15.70.090 Right to Review or . Regulations regarding the right to remove or revoke a telecom permit granted by the City revised and Revoke Permit moved to proposed Section 20.49.120 (page 3). • Regulations regarding changed circumstances updated and moved to proposed Section 20.49.100 (page 3. Page 2 Existing Section Proposed Changes /Comments Proposed Section Proposed New Section 0 Proposed Section 20.49.090 added, requiring a license agreement for any telecom facility located on 20.49.090 Agreement for Use of City property. City -owned or City -held Trust . Procedure for processing license agreements described in Council Policy L -23. Property 15.70.100 Removal of Telecom . Section 15.70.100 moved to proposed Section 20.49.130 (below). Facilities Proposed New Section . Proposed Section 20.49.100 added to provide regulations consistent with federal law for modifications 20.49.100 Modification of Existing to existing telecom facilities. Telecom Facilities . Modifications to existing facilities that do not "substantially change the physical dimensions" of the telecom facility are subject to a ministerial review and approval and do not require processing of a discretionary permit, as required by federal regulations. Changes to existing facilities that meet the criteria of "substantially change the physical dimensions" by increasing or decreasing by 5% or more the height, width, or depth in any direction of any portion of the existing "wireless tower' or "base station" will require the processing of a new discretionary permit. 15.70.110 Exemption for City • Section 15.70.110 (Exemption for City Systems) relocated and updated in proposed Section 20.49.020 Systems General Provisions). Proposed New Section . Radiation report requirements unchanged from existing Section 15.70.080. 20.49.110 Operational and Radio . Provision added to require compliance with the most current regulatory and operational standards Frequency Compliance and adopted by the FCC. Radiation Report . Provision added to require an updated RF compliance report be prepared and submitted upon any proposed increase of at least 10% in effective radiated power or change in frequency use of the telecom facility. Proposed New Section . Moved from existing Section 15.70.090 to proposed new section. 20.49.120 Right to Review or . Provisions regarding "changed circumstance" (subsection A.) deleted. Revoke Permit . No policy change or revisions to provision regarding right to revoke or modify permit subsection B.). Proposed New Section . Moved from existing Section 15.70.100 to this proposed new section. 20.49.130 Removal of Telecom . No policy change; minor revisions to text providing Community Development Director the ability to Facilities exercise discretion as to what constitutes a 'reasonable period of time" when an operator proposes to transfer rights to another operator. Page 3 The "Allowed Uses and Permit Requirements" tables in the following sections of the Zoning Code would be updated to reflect the zoning districts in which telecom facilities are allowed and the permit required to establish a telecom facility. Under the existing and proposed telecom ordinance, telecom facilities are allowed in all commercial, mixed -use, and industrial zoning districts, as well as on properties zoned for public facilities, private institutions, and active public or private recreational uses. Table Existing Code Section Table 2 -1 Residential Zoning Districts Section 20.18.020 — Residential Zoning Districts Land Uses and Permit Requirements Table 2 -4 Commercial Office Zoning Districts Table 2 -5 Commercial Retail Zoning Districts Section 20.20.020 — Commercial Zoning Districts Land Uses and Permit Requirements Tables 2 -8 and 2 -9 Mixed -Use Zoning Districts Section 20.22.020 — Mixed -Use Zoning Districts Land Uses and Permit Requirements Table 2 -12 Industrial Zoning District Section 20.24.020 — Industrial Zoning Districts Land Uses and Permit Requirements Table 2 -14 Special Purpose Zoning Districts Section 20.26.020 — Special Purpose Zoning Districts Land Uses and Permit Requirements Page 4 Attachment No. PC 3 Existing Chapter 15.70 Sections: 15.70.010 15.70.020 15.70.030 15.70.040 15.70.050 15.70.060 15.70.070 15.70.080 15.70.090 15.70.100 15.70.110 Chapter 15.70 WIRELESS TELECOMMUNICATION FACILITIES Purpose and Intent. General Provisions. Definitions. Available Technology. Height and Location. Design Standards. Permit Review Procedures. Radiation Report. Right to Review or Revoke Permit Removal of Telecom Facilities. Violation a Misdemeanor. 15.70.010 Purpose and Intent. A. Purpose. The purpose of this chapter is to provide for wireless telecommunication ( "telecom ") facilities on public and private property consistent with federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal views, and otherwise mitigating the impacts of such facilities. More specifically, the regulations contained herein are intended to: 1. Encourage the location of antennas in non - residential areas. 2. Strongly encourage co- location at new and existing antenna sites. 3. Encourage telecom facilities to be located in areas where adverse impacts on the community and on public views are minimized. 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 not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecom services. (Ord. 2002 -24 § 1 (part), 2002) 15.70.020 General Provisions. A. Applicability. These regulations are applicable to telecom facilities providing voice and /or data transmission such as, but not limited to, cell phone and radio relay stations. B. Exempt Facilities. Amateur radio and receiving satellite dish antennas regulated by Chapter 20.61 are exempt from the provisions of this chapter. C. Permit Required. A permit shall be required for all telecom facilities regulated by this chapter in accordance with Section 15.70.070. D. Other Regulations. All telecom facilities within the City shall comply with the provisions of this chapter and the following requirements: Conditions in any permit or license 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). 3. Easements, covenants, conditions or restrictions on the underlying real property. 4. The Uniform Building Code, Uniform Fire Code, Uniform Mechanical Code and National Electrical Code, as amended by state or local law or regulation. 5. The provisions of Title 13 to the extent the telecom facilities are proposed to be located on or within the public right of way. 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: Design guidelines or standards in any applicable specific plan within the Newport Beach Zoning Code (Title 20). 2. Requirements established by any other provision of the Municipal Code or by any other ordinance or regulation of the City, other than those listed in paragraph D of this section. F. Setbacks. Setbacks shall be measured from the part of the telecom facility closest to the applicable lot line or structure. G. Maintenance. The telecom operator shall maintain the telecom facility in a manner consistent with the original approval of the facility. H. Non - Conformities. A proposed telecom facility shall not create any new or increased non - conformities as defined in the Zoning Code, such as, but not limited to, a reduction in and /or elimination of, parking, landscaping, or loading zones. (Ord. 2002 -24 § 1 (part), 2002) 15.70.030 Definitions. For the purposes of this chapter, certain terms shall have meanings as follows: A. 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 shall mean antennas having active elements extending in more than one direction, and directional antennas mounted upon 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. City means the City of Newport Beach. D. City Council or Council means the City Council of the City of Newport Beach. E. City Property means all real property and improvements owned, operated or controlled by City, other than public right of way, within the City's jurisdiction. City Property includes, but is not limited to City Hall, Police and Fire facilities, recreational facilities, parks, libraries, streetlights and traffic lights. F. Co- location means an arrangement whereby multiple telecom facilities owned or operated by different telecom operators share the same structure or site. G. Department Director or Reviewing Department Director means either the Planning Director or the Public Works Director, as applicable. H. FCC means the Federal Communications Commission. I. Feasible 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 means an open framework structure used to support antennas, typically with three or four support legs. K. Monopole means a single free- standing pole used to act as or support a telecom antenna or antenna arrays. L. 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. Planning Director means the Planning Director of the City or his or her designee. N. Public Right of Way or ('PROW ") means any public way, or rights -of -way, now laid out or dedicated, and the space on, above or below it, and all extensions thereof and additions thereto, owned, operated and /or controlled by the City or subject to an easement owned by City. PROW includes public streets, roads, lanes, alleys, sidewalks, medians, parkways and landscaped lots. O. Public Works Director means the Public Works Director of the City or his or her designee. P. Residential Lot means a lot containing, or zoned for, one or more dwelling units in the R -1, R -1.5, R- 2, or in the residential portions of the PC or SP Districts. Q. Reviewing Authority means the person or body authorized under the provisions of this chapter to review and act upon a telecom application, i.e. either a specified staff department director or the City Council. R. Stealth or Stealth Facility means a telecom facility in which the antenna, and sometimes the support equipment, are hidden from view in a false tree, monument, cupola, 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. S. Support Equipment means the physical, electrical and /or electronic equipment included within a telecom facility used to house, power, and /or process signals from or to the facility's antenna or antennas. T. Telecommunication(s) Facility, Telecom Facility, Wireless Telecommunications Facility, or simply Facility means an installation that sends 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. U. Title 20 or Zoning Code means Title 20 of the Newport Beach Municipal Code. V. Utility Tower shall mean an open framework structure or steel pole used to support electric transmission facilities. W. Zoning District or District means an area of the City designated on the official Districting Maps and subject to a uniform set of permitted land uses and development standards. (Ord. 2002 -24 § 1 (part), 2002) 15.70.040 Available Technology. All telecom facilities approved under this Chapter shall utilize the most efficient and diminutive available technology in order to minimize the number of facilities and reduce their visual impact. (Ord. 2002 -24 § 1 (part), 2002) 15.70.050 Height and Location. A. Height. Maximum Height. No antenna or other telecom equipment or screening structure shall extend higher than the following maximum height limits: a. Thirty -five (35) feet for antennas on streetlights, traffic control standards, utility distribution poles, or other similar structures within the public right -of -way. Antennas may be placed on existing utility poles that exceed thirty -five (35) feet, where the purpose of the existing utility pole is to carry electricity, provided that the top of the antenna does not exceed the top of the pole. b. For all other telecom facilities, the maximum height of antennas shall be the upper maximum building height allowed in the zoning district as specified in the Zoning Code (for example, no higher than thirty -five (35) feet in the "26/35 Foot Height Limitation Zone "). 2. Over - Height Antennas. The City Council may approve antennas up to fifteen (15) feet above the preceding maximum building height limitations under the special review provisions of Section 15.70.070 of this Chapter. 3. "Stealth" Telecommunication Installations within Structures. Stealth facilities may be installed within structures that are permitted to exceed the above stated height limits, either by right under Title 20 or which have received a Use Permit. B. Location. Location Categories and Location Priorities. Locations for telecom facilities shall be selected according to the following priority order: a. Wall, roof or existing co- location structure or site; b. Existing pole, light standard, or utility tower; c. Commercial sign or architectural feature; d. New or existing "stealth" structure other than a false tree; e. New false tree; f. New "Slim Jim" monopole (i.e. with no antenna elements other than the pole itself); g. New standard monopole with attached antenna elements; h. New lattice tower. 2. Special Requirements. Proposals for telecom facilities at location categories "e" through "h" in Section 15.070.050B(1) shall require special review by the City Council under the provisions of Section 15.70.070 of this chapter. In such cases, the applicant shall be required to show to the satisfaction of the Council that: a. Higher priority locations are either not available or are not feasible; b. Establishment of a facility on a new standard monopole or lattice tower is necessary to provide service; and c. Lack of such a facility would result in a denial of service. 3. Other Locations Requiring Special Approval. Telecom facilities are prohibited in the following locations unless given special approval by the City Council under the provisions of Section 15.70.070: a. On common area lots or other non - residential lots within residential districts. b. Within any required setback established in the Zoning Code. c. On multifamily structures on lots zoned MFR. 4. Prohibited Locations. Telecom facilities are prohibited in the following locations: a. On residential lots. b. In the Open Space- Passive (OSP) zoning district, unless facilities are co- located on an existing utility tower within a utility easement area. C. Co- Location Requirements. 1. Co- Location Required. To limit the adverse visual effects of a proliferation of telecom sites in the City, a new telecom facility proposed within one thousand (1000) feet of an existing facility shall be required to co- locate on the same site as the existing facility unless the reviewing authority determines, based on evidence submitted by the applicant, that such co- location is not feasible. 2. Co- Location Limitations. No more than three telecom facilities may co- locate at a single site unless the reviewing authority finds that: a. The net visual effect of locating an additional facility at a co- location site will be less than establishing a new location; or b. Based on evidence submitted by the applicant, there is no available feasible alternate location for a proposed new facility. 3. Condition Requiring Future Co- Location. In approving a telecom facility, the reviewing authority may impose a condition of approval allowing future co- location of telecom facilities by other carriers at the same site. (Ord. 2002 -24 § 1 (part), 2002) 15.70.060 Design Standards. A. General Criteria. In addition to the other design standards of this Section, the following criteria shall be considered by the reviewing authority in connection with its processing of any telecom permit. Blending. The extent to which the proposed facility blends into the surrounding environment or is architecturally integrated into structure. 2. Screening. The extent to which the proposed facility is concealed, screened or camouflaged by existing or proposed new topography, vegetation, buildings or other structures. 3. Size. The total size of the proposed facility, particularly in relation to surrounding and supporting structures. B. Free - Standing Antennas. Antennas and any poles or other structures erected to support antennas shall be visually compatible with surrounding buildings and vegetation. The reviewing authority may require that the antenna be colored to blend into the sky or other background. C. Roof- Mounted Antennas. Roof - mounted antennas, except whip antennas, shall be blended or screened from public view in a manner consistent with the building's architectural style, color and materials including, if determined necessary by the reviewing authority, screening to avoid adverse impacts to views from land or buildings at higher elevations. D. Wall- Mounted Antennas. Wall- mounted antennas shall be painted to match the color of the wall on which they are mounted. Cables and mounting brackets shall be hidden. Shrouds may be required by the reviewing authority to screen wall- mounted antennas. E. Support Equipment. 1. Building- Mounted Installations. For building- mounted installations, support equipment for the facility shall be placed within the building. If the reviewing authority determines that such building placement is not feasible, the equipment shall be roof - mounted in an enclosure or shall otherwise be screened from public view in a manner approved by the reviewing authority. Roof - mounted equipment shall comply with the height limits applicable to the building per the Zoning Code. All screening used in connection with a building- mounted facility shall be compatible with the architecture, color, texture and materials of the building to which it is mounted. 2. Ground - Mounted Installations. For ground- mounted installations, support equipment shall be screened in a security enclosure approved by the reviewing authority. Such 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 reviewing authority. In general, the screening enclosure shall be made of non - reflective material and painted or camouflaged to blend with surrounding materials and colors. Buffer landscaping may also be required if the reviewing authority determines that additional screening is necessary due to the location of the site and that irrigation water is available. 3. Installations in Public Right -of -Way. Telecom Facilities and or support equipment proposed to be located in the public right -of -way shall comply with the provisions of Title 13. In addition, ground- mounted equipment in the public right -of -way shall comply with all requirements of the Americans with Disabilities Act (ADA). F. Night Lighting. Telecom facilities shall not be lighted except for security lighting at the lowest intensity necessary for that purpose. Such lighting shall be shielded so that direct rays do not shine on nearby properties. The reviewing authority shall consult with the Police Department regarding proposed security lighting for telecom facilities on a case -by -case basis. G. 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 reviewing authority. (Ord. 2002 -24 § 1 (part), 2002) 15.70.070 Permit Review Procedures. A. Reviewing Authority. All applicants for telecom facilities not within the public right -of -way shall apply for a permit from the Planning Department as follows: Private or City -Owned Property. Facilities on private property or on City -owned property shall be reviewed by the Planning Director as a "Telecom Permit ". 2. Referral to City Council. The Planning Director may refer any application to the City Council for special review under the procedures set out in Paragraph F of this Section. B. Submission Requirements. Applications for telecom facilities shall be accompanied by the following documentation in a form and containing information acceptable to the reviewing authority: Plans. Site Plans and Elevations drawn to scale. 2. Justification. A brief narrative, accompanied by written documentation where appropriate, which explains the purpose of the facility and validates the applicant's efforts to comply with the design, location, and co- location standards of this chapter. 3. Maps. A map or maps showing the geographic area to be served by the facility. In order to facilitate planning and gauge the need for future telecom facilities, the reviewing department director may also require the operator to submit a comprehensive plan of the operator's existing and future facilities that are or may be placed within the city limits of Newport Beach. 4. Visual Simulations. Visual simulations showing "before" and "after" views of the proposed facility, unless the reviewing department director determines that such simulations are not necessary for the application in question. Consideration shall be given to views from both public areas and private residences. 5. Emission Standards and Non - Interference Data. Documentation showing the specific frequency range that the facility will use upon and throughout activation, certification that the facility will continuously comply with FCC emissions standards, and that use of the telecom facility will not interfere with other communication, radio, or television transmission or reception. 6. Property Ownership. Evidence of ownership of the real property on which the proposed telecom facility will be located, or if the applicant does not own the real property, the name and mailing address of the real property owner(s), and evidence of authorization from the real property owner to place the facility on the property. 7. Wind Load Calculations. For proposed antenna installations on new monopoles, utility poles, or other structures subject to wind loads, the applicant shall submit wind load calculations prepared or approved by an engineer registered in California. The wind load calculations shall show, to the satisfaction of the reviewing authority, that the resulting installation will be safe and secure under wind load conditions. The calculations shall take into account other existing attachments to the supporting structure and potential future antennas co- located on the structure by other operators. 8. Mailing List. If public notice is required by the reviewing authority, a list of property owners within three hundred (300) feet of the proposed telecom facility taken from the latest assessor rolls. 9. Supporting Materials. Additional supporting materials as deemed necessary by the reviewing department director to complete review of the proposal. Supporting materials may include, but are not limited to, color and material sample boards, proposed informational signage, and landscaping plans. 10. Fee. Applications shall be accompanied by a fee established by resolution of the City Council to defray all estimated costs and expenses incidental to review and processing of the application, including any expense incurred by the Police Department or for any outside technical or legal services to review the application. This fee shall be in addition to other fees required by the Municipal Code. C. Review Process for Proposals on City Property. Review of telecom applications for facilities on City property shall be as follows: 1. Filing. Applications shall be submitted to the Planning Director for facilities on City property shall undergo initial staff review for compliance with the provisions of this Chapter and Title 13. Within thirty (30) days of filing, the reviewing department director shall notify the applicant in writing whether the application is complete. If an application is determined to be not complete, the notification shall identify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete. 2. Emergency Communications Review. At the same time as the Applicant submits an application to the Planning Director, the Applicant shall submit the Plans, Map, and Emission Standards and Non - Interference Data (parts 1, 3, and 5 of the Submission Requirements) to 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 facility to determine if any interference exists. If the Police Department determines that the proposal has a high probability that its facilities will interfere with emergency communications devices, the applicant shall be given the opportunity to modify the proposal, to avoid interference. If the proposal is not modified, the reviewing department director shall deny the proposal. 3. Director's Action. Within thirty (30) days of the determination that the application is complete, the Planning Director shall take action on the application based on the following criteria: a. If the director determines that the facility conforms to the technology height, location and design standards of Sections 15.70.040, 15.70.050 and 15.70.060 of this chapter, he or she shall approve the application with or without conditions of approval. b. If the director determines that the facility does not conform to one or more standards, he or she shall inform the applicant of the discrepancy and give the applicant the option of amending the application to eliminate the discrepancy. If the discrepancy is not eliminated, the director shall deny the application. c. If the director determines that conformity to standards are in doubt, he or she shall refer the application to the City Council for Special Review under the procedures set out in Paragraph F of this Section. 4. Applicant Notification. After action on the application, the director shall cause the applicant to be notified in writing within five business days of the decision. The applicant may appeal decisions by the director in accordance with Paragraph E of this section. 5. City Manager Action. When a permit for a telecom facility on City -owned property or facilities is approved, the Planning Director shall forward the permit to the City Manager, who shall prepare and execute an Agreement based upon a term and rental amount adopted under City Council policy. 6. City Council Action. Where applicable (including proposals to site facilities in Location Categories in Section 15.70.050[B][1][e -h]), the City Manager shall forward the agreement and final telecom permit to the City Council for final approval. The City Council may approve, approve subject to modifications, or deny the agreement and telecom permit. The City Council retains the right to refuse approval of an agreement at any time and for any reason. Should the City Council deny the agreement, the agreement and permit shall not be executed. 7. Notification to Applicant. The City Clerk shall notify the applicant in writing within five business days of the City Council's decision. D. Review Process for Private Property. Review of telecom applications for facilities on private property shall be as follows: 1. Filing. Submission of application to the Planning Director and initial staff review. Within thirty (30) days of filing, the Director shall cause the applicant to be notified in writing whether the application is complete. If an application is determined to be not complete, the notification shall identify those parts of the application which are incomplete and shall indicate the manner in which they can be made complete. 2. Emergency Communications Review. At the same time as the Applicant submits an application to the Planning Director, the Applicant shall submit the Plans, Map, and Emission Standards and Non - Interference Data (parts 1, 3, and 5 of the Submission Requirements) to 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 facility to determine if any interference exists. If the Police Department determines that the proposal has a high probability that its facilities will interfere with emergency communications devices, the applicant shall work with the Police Department to modify the installation or location of facility to avoid interference to the maximum extent practicable. 3. Director's Action. Within thirty (30) days after the determination that the application is complete, the Planning Director shall approve, approve subject to conditions, or deny the telecom permit under the same procedures and criteria as set out in Paragraph C of this Section. The Director shall then cause the applicant to be notified in writing within five business days of the decision. The applicant may appeal decisions by the Director in accordance with Paragraph E of this Section. E. Appeals to City Council. Within fourteen (14) days of the date of written notification of action by the reviewing department director, the applicant may appeal any denial of the application or any conditions of approval to the City Council. The City Council shall hear all appeals within sixty (60) days of filing of the appeal. The City Council's action on appeals shall be final. If the final action is denial, the City Council shall adopt a Resolution setting forth the reasons for denial. F. Special Review by Council. Because of their potential for greater- than -usual visual or other impacts on nearby property owners, residents, and businesses, applications for the telecom facilities identified below shall require special review by the City Council. Applicability. Proposals requiring special review include the following: a. Telecom antennas up to fifteen (15) feet above the upper maximum height limit as provided in 15.70.050(A). b. Telecom facilities at locations identified as requiring special review in Section 15.70.050(8). c. Any telecom application which the department director determines requires special review in order to serve the public interest. 2. Special Review Procedures. Applications subject to special review shall be reviewed under the following procedures: a. Notification describing the proposal and the date and time of City Council review shall be mailed at least ten (10) days in advance of the City Council review date to property owners of record within three hundred (300) feet of the proposed location of the telecom facility. However, such notification shall not constitute a public hearing notice and non - receipt of such notification shall in no way nullify any approval or denial of a telecom facility. b. No formal public hearing shall be required in conjunction with review of a proposed telecom facility. However, the City Council may hear and consider comments from the public during its review of the application. 3. Council Action. The City Council shall take action on the telecom permit within sixty (60) days after the determination that the application is complete. Applications subject to special review may be approved by the City Council if it makes the following findings: a. The approval is necessary to allow the facility to function as intended and identified alternatives to the proposal are not feasible. b. The approved facility will not result in conditions which are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety. The City Council may approve, approve subject to conditions, or deny the telecom permit. 4. Notification to Applicant. The City Clerk shall notify the applicant in writing within five business days of the City Council's decision. (Ord. 2002 -24 § 1 (part), 2002) 15.70.080 Radio Frequency Compliance and Radiation Report. Within thirty (30) days after installation of a telecom facility, a radio frequency (RF) compliance and radiation report prepared by a qualified RF engineer acceptable to the City shall be submitted in order to demonstrate that the facility is operating at the approved frequency and complies with FCC standards for radiation. If the report shows that the facility does not so comply, the reviewing director shall require that use of the facility be suspended until a new report has been submitted confirming such compliance. (Ord. 2002 -24 § 1 (part), 2002) 15.70.090 Right to Review or Revoke Permit. A. Changed Circumstance. Any telecom permit approved pursuant to this Chapter shall be granted by the City with the reservation of the right and jurisdiction to review and modify the permit (including the conditions of approval) based on changed circumstances. Changed circumstances include, but are not limited to, the following in relation to the telecom facility and its specifications in the approved application and/or conditions of approval: 1. An increase in the height or size of any part of the facility; 2. Additional impairment of the views from surrounding properties; 3. Increase in size or change in the shape of the antenna or supporting structure; 4. A change in the facility's color or materials; 5. A substantial change in location on the site; 6. An effective increase in signal output above the maximum permissible exposure (MPE) limits imposed by the radio frequency emissions guidelines of the FCC. The operator shall notify the Reviewing Department Director of any proposal to cause one or more of the changed circumstances shown in 1 -6 above. Any changed circumstance shall require the operator to apply for a modification of the original telecom permit. Before implementing any changed circumstance, the operator must obtain a modified telecom permit and any related building or other permits required by the City. B. Additional Right to Revoke or Modify Permit. The reservation of right to review any telecom permit 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. After due notice to the telecom operator, the City Council may revoke any telecom permit upon finding that the facility or the operator has violated any law regulating the telecom facility or has failed to comply with the requirements of this Chapter, the telecom permit, any applicable agreement, or any condition of approval. Upon such revocation, the City Council may require removal of the facility. (Ord. 2002 -24 § 1 (part), 2002) 15.70.100 Removal of Telecom Facilities. A. Discontinued Use. Any operator who intends to abandon or discontinue use of a telecom facility must notify the Planning Director by certified mail no less than thirty (30) days prior to such action. The operator or owner of the affected real property shall have ninety (90) days from the date of abandonment or discontinuance, or a reasonable time as may be approved by the Planning Director, within which to complete one of the following actions: Reactivate use of the telecom facility; 2. Transfer the rights to use the telecom facility to another operator and the operator immediately commences use; 3. Remove the telecom facility and restore the site. B. Abandonment. Any telecom facility that is not operated for a continuous period of one hundred eighty (180) days or whose 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 carrier last known 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: Reactivate use of the telecom facility; 2. Transfer the rights to use the telecom facility to another operator; 3. Remove the telecom facility and restore the site. C. Removal by City. 1. The City may remove an abandoned 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 the telecom facility, the City may, but shall not be required to, store the removed facility or any part thereof. The owner of the premises upon which the abandoned facility was located and all prior operators of the 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 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 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. (Ord. 2002 -24 § 1 (part), 2002) 15.70.110 Exemption for City Systems. Systems installed or operated at the direction of the City or its contractor shall be exempt from this chapter. (Ord. 2002 -24 § 1 (part), 2002) ADDITIONAL MATERIALS RECEIVED STAFF PRESENTATION City of Newport Beach Planning Commission Meeting July 19, 2012 Wireless Telecommunications Facilities Ordinance Code Amendment No. 2012-004 Project Description ■ Comprehensive update to existing Wireless Telecommunications Facilities Ordinance ■ Intended to: Balance needs of community Increasing demand for wireless networks Mitigate the impact of telecom facilities Reflect changes in federal and state law Project Description (continued) ■ Existing regulations contained in Title 15 and Title 13 ■ Propose to consolidate into single chapter in Title 20 ■ New or modified telecom facilities regulated as a land use Background ■ Telecom Ordinance adopted by City Council in October 2002 ■ Existing regulations have not been updated since adoption by City Council Background (continued) ■ Staff presented overview of existing regulations at a March 2o12CityCouncil Study Session ■ City Council directed staff to proceed with revisions to the telecom ordinance Federal Law and Radio Frequency Emissions Safety ■ Federal law preserves local zoning authority, while imposing certain requirements ■ State and local agencies are prohibited from regulating on the basis of radio frequency (RF) emissions Proposed Code Amendment ■ Key issues identified in existing ordinance Proposed revisions in draft ordinance Public Notice /Public Hearing Process and Review Authority Existing Provisions: All applications reviewed by Community Development Director as a "telecom permit" Community Development Director is review authority for facilities that meet established criteria Public Notice /Public Hearing Process and Review Authority Existing Provisions (continued): City Council is review authority for: Facilities that do not conform, Larger more conspicuous facilities, and /or Facilities located in certain residential districts } Neither review process requires a public notice or a public hearing Public Notice /Public Hearing Process and Review Authority Proposed Revision: Applicants required to apply for Minor Use Permit; Conditional Use Permit; or Limited Term Permit Public notice /public hearing required Zoning Administratoror Commission designated Planning review authorities Appeal Process Existing Provisions: Only applicant may appeal decision Community Development Director by the Appeal Process Proposed Revision: Appeal process consistent with existing provisions in the Zoning Code Planning Commission would be appellant authority on Zoning Administrator decisions City Council would be appellant authority on Planning Commission decisions Installations in the Public Right -of -Way Existing Provisions: Ri Specific procedures not provided for facilities installed in the public right -of -way Installations in the Public Right -of- Way Proposed Revision: Process and design standards included -,r Public hearings would be conducted Building and /or encroachment permits would be required a? - `,�• 6 + - s , I Design Standards and Criteria Existing Provisions: M M Standards do not encourage applicants to design camouflaged facilities Standards have not been updated to reflect changes in technology Design Standards and Criteria Proposed Revision: Design standards camouflage updated to encourage Facilities visually compatible and /or inconspicuous reviewed by Zoning Admin. Larger or conspicuous facilities reviewed by Planning Commission a Fl M • 0 OM a W07"Ol 1T4 re IS ltt St 11 n i ply .. r. ;M L� 1. 0-07N') 4 na II Deviation to Height Limitations and Location Requirements Existing Provisions: 2 Do not include process to request to modify or deviate Deviation to Height Limitations and Location Requirements Proposed Revision: With regulations in Zoning Code, applicants could request a Variance Review and public hearings conducted Planning Commission Setback Requirements Existing Provisions: 9 Setbacks measured from the part of facility closest to the lot line or structure Facilities prohibited from being located in required setbacks, unless special approval by City Council Setback Requirements Proposed Revision: i Updated to provide additional "fall zone" for ground- mounted 'Wireless Towers" Additional setback provided for safety purposes; would be the greater of either: Code - required setback; or ZZo% of the height of the "Wireless Tower" Modification of Existing Telecom Facilities Existing Provisions: Allows permit City to review and modify a telecom based on "changed circumstances" Modification of Existing Telecom Facilities Proposed Revision: Updated regulations consistent with federal law Changes less than 5% subject to ministerial review and approval Changes 5% or more require processing of a new discretionary application Zoning District Land Uses and Permit Requirements Existing Provisions: Facilities prohibited unless given special approval by City Council on: Common area or non - residential lots Any required setback Multifamily structures Also prohibited on: Residential lots &- Open Space district, unless on utility tower Zoning District Land Uses and Permit Requirements Proposed Revision: Updated to prohibit telecom facilities on: v Single- family development Two - family development Multi- family development of 4 units or less Exception added to allow telecom facilities in Open Space when co- located on existing telecom facility or site Conclusion ■ Staff welcomes public comments on the draft ordinance; and ■ Recommends continuance to August 23, 2012 core DEVELOPMENT SERVICES 7/18/12 Janet Johnson Brown Associate Planner City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Ms. Brown, Item 5a: Additional Materials Received Planning Commission July 19, 2012 PA2012 -057 On behalf of Core Communications, I would like to thank for the opportunity to provide feedback regarding the City's proposed Wireless Communications Facilities Ordinance. I commend planning staff and the City for determining that an updated ordinance is needed to allow for a uniform set of standards that each application will be subject to. Below are our comments regarding the proposed ordinance amendment. Given our many concerns I feel it would be best if the city would continue this item to a later date to allow for an outreach meeting with the industry. I have found that a dialogue with City staff allows for the industry to understand staff's intent behind each requirement and also allows staff to understand the possible effects certain requirements may have. By understanding the goals and intent of both sides I feel that City staff will develop an ordinance that continues to achieve the City's objectives and protects the wellbeing of all those involved. The following discussion highlights are an area of a concern: 1. Public Notice /Public Hearing Process and Review Authority, specifically Section 20.49.070(G): It should not necessary for all proposed projects to go through the hearing process. The City should utilize a set of objective design standards and if a carrier meets them, there should be no reason to go before any discretionary body, regardless of location. A streamlined process, such as an administrative approval, is recommended for sites that are co- located, building or roof - mounted, or located on utility infrastructures such as SCE towers. The code should explore incentives for applicants to bring forth quality proposals, such as a simplified review process. The City of Anaheim's code demonstrates this type of review, which has increased the wireless telecommunications coverage in the City and while upholding the quality of installations proposed. 2. Installations in the Public Right -of -Way, specifically Section 20.49.050(C): Requiring a full conditional use permit for all proposals in the public right -of -way seems overly cumbersome. If planning review is determined to be absolutely necessary, I recommended a streamlined administrative process. Public right -of -way sites are typically located on existing structures, such as light poles, therefore the aesthetic impact is minimal. I recommend only requiring specific design standards for these specific sites that the carrier will have to adhere to and if those core DEVELOPMENT SERVICES design standards are followed the site is approved. If it the site is unable to meet the City's design standards, then at that time the discretionary planning process may be required. For example, the City of Laguna Niguel has design standards that were adopted by the City Council. If a proposal is unable to conform to those standards then it must go through the planning process. Another example is the City of Tustin which only requires public right -of -way sites to go through an administrative design review process. Furthermore, subsection (1) requires all support equipment be placed below grade. As you may or may not be aware the industry tries to stay away from vaults at all costs. Facilities flood due to rains and the required flush -mount vents. When this occurs, sites go "off air ", creating a gap in coverage, not to mention the fact that it could cost hundreds of thousands of dollars to repair even one facility. When a site goes "off air" the community will lose needed and required coverage. Additionally, some carriers' facilities often include an emergency generator which requires ventilations and specific clearance requirements that would not be able to be enclosed or vaulted. While it is understood that often Public Right -of -Way installations have very little space for equipment and vaulting may be the only option, there are occasionally circumstances where the equipment can be located above ground while being screened. Therefore, by limiting equipment to be undergrounded only, those occasions are restricted. 3. Design Standards and Criteria, specifically Section 20.49.060: Again, I commend the City for instituting design requirements; however, as stated above should the city institute a set of objective design standards and the carrier meets them, there should be no reason to go before any discretionary body, regardless of location. In this situation the aesthetic impacts are no longer of a concern given the facility meets code. A streamlined process, such as an administrative approval, is recommended for sites that meet the required design standards. Furthermore, the code should explore incentives for applicants to bring forth quality proposals, such as a streamlined review process. 4. Deviation to Height Limitations and Location Requirements, specifically Section 20.49.060(C)(1). Subsection (c) should be revisited as several schools, churches, and other public institutions are often in residentially zoned districts and typically they have flagpoles in front of their establishments. In the event there are no other options to locate antennas and equipment within a steeple, some other portion of the building, or a more appropriate stealth design; prohibiting flagpoles in residential zones may inadvertently cause a prohibition of service. In those cases where the current proposed code would allow a flagpole installation, 35' is an extremely restrictive height. As previously stated, wireless telecommunications antennas require line of site free of obstructions. Given that a great majority of buildings within the City are multiple stories and some areas of the City have topography challenges, 35' will not likely provide the necessary line of site. Therefore, it is recommended that no height limit be specified. The restriction of a 24" diameter pole is also extremely limiting. Often carriers core DEVELOPMENT SERVICES require at least 30" or more due to different technology and azimuth requirements. Again, it is recommended that a larger diameter measurement be provided or the size is left unspecified. Height may also be an issue in Subsection (d) having adverse implications on roof - mounted installations. The City is a beach community and often buildings are constructed to the maximum height limit. Only allowing five feet above base height limit may not be enough to allow for screening and many carriers' antenna technology. Some carriers have antennas in lengths of up to eight feet. Additionally, five feet may not be enough to meet EME safety standards depending on where on the rooftop the antennas are proposed. Therefore, it is extremely likely that majority of all rooftop installations will be greater than five feet above the base height limit requiring heightened review. This could potentially cause an architecturally integrated rooftop installation to proceed through a longer, more cumbersome process because it cannot meet the narrow five foot height limitation. 5. Setback Requirements, specifically Section 20.49.060(D): Wireless facilities are required to go through building plan check and demonstrate that they are structurally sound, just as any other building in the City would be required. However, no other building in the City is required to provide a "fall zone ", yet the proposed wireless code amendment will require a 110% "fall zone" setback for any new ground mounted wireless facility. It is unclear why wireless telecommunications facilities would be held to a different standard. Additionally, as previously stated, wireless telecommunications antennas must have an unobstructed line of site which will often require the antennas to be much taller than the 25' example stated in the staff report. In fact, the average height of concealed ground mounted facilities will likely be around 55', to allow for a 45' centerline of antennas and additional camouflaging above the antennas. Therefore, if a 55' ground- mounted facility were proposed the 110% setback would be 60.5'from all properties lines, which would likely inadvertently prohibit any ground- mounted wireless facilities on the majority of properties within the City. 6. Modification of Existing Telecom Facilities: Given the recent "Tax Relief Act" legislation, I recommend the City handle all modification requests as ministerial permits. Limiting any change to 5% or less, as the current ordinance amendment proposes, may potentially prohibit any maintenance or equipment changes /additions that will increase the efficiency or technology of the facility . 7. Zoning District Land Uses and Permit Requirements: The City should not prohibit a wireless installation in any zone. This opens the possibility of the City prohibiting telecommunications services. Prohibiting an installation outright in any zone may cause the City to unknowingly create a barrier to entry which inadvertently regulates the business affairs of a wireless company. This is likely not the intention of the City and therefore I recommend that the City adopt specific design standards for the residential and open space zones to protect the integrity of the area. Also, many properties may be zoned residential, but are not used for residential core DEVELOPMENT SERVICES purposes, which should be taken into consideration. It should be noted that many cities have found having wireless facilities in their parks zoned either residential or open space has created an avenue of revenue for the City. The entire ordinance is quite lengthy, somewhat burdensome and may provide a barrier for wireless services to be provided to the Newport Beach community. Given the concerns explained in the text above, I feel it would be best if the City would continue this item to a later date to allow for an outreach meeting with the industry. I would like to thank the City for notifying us of this proposed amendment and look forward to working together in crafting a lawful ordinance that protects the residents and businesses of the City of Newport Beach along with operation of the wireless industry. Yours truly, t�Whelle eJ ?Wle!1 Michelle Felten Senior Project Manager aw Delivered via Email The Honorable Michael Toerge Chairman, Planning Commission City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Item 5b: Additional Material Received Planning Commission July 19, 2012 Kyle C. Powell AT&T Services, Inc. T: 916.341.3504 General Attorney 1215 K Street, Suite 1800 F: 916.443.6836 Sacramento, CA 95814 kyla.powell ®alt.com Subject: Proposed Amendment to Wireless Telecommunications Facilities Ordinance (PA2012 -057), Code Amendment No. 2012 -004 Dear Chairman Toerge: AT &T appreciates the opportunity to provide comments to the Planning Commission on the proposed amendment to the City of Newport Beach's {City) Wireless Telecommunications Facilities Ordinance. AT &T has been providing communications service in Southern California for over a hundred years and its affiliate has been providing wireless telecommunications services since the late 1980's. AT &T is eager to work with the City in its efforts to address concerns about placement of wireless facilities within the City. AT &T is most concerned about aspects of the proposed amendments that would directly impact the ability of the wireless telecommunications industry to provide service to residents, businesses and visitors in Newport Beach, who rely on cellphones and other wireless devices in their daily lives. As you are no doubt aware, the proposed amendments would affect not only cellphones, but wireless data of all kinds (including audio signals, video signals, computer files, e-mail and data of all kinds that now use wireless transmission) are affected. Over all, we believe the proposed amendments are overly specific and restrictive and could give rise to a host of future issues and problems that may require further ordinance modifications. For example, by providing unique definitions of terms like "base station" that deviate from specific federal law definitions and is but one component of a wireless facility under 47 U.S.C.A 332, the City risks running afoul of Section 332 protections, creating a prohibition on wireless service, and having the entire ordinance preempted. We recommend that the City instead treat wireless facilities more like other facilities and not regulate them. Below, we provide the applicable law and our specific concerns. APPLICABLE LAW The federal Telecommunications Act of 1996, 47 U.S.C.A. 151 et seq. (1996) regulates the deployment of wireless telecommunication service. Section 332(c)(3) gives the FCC certain authority that is exclusive and which preempts conflicting acts by state or local governments. Section 332(c)(3)(7) of the Act, while recognizing that local zoning authority is preserved, requires that local regulation not "unreasonably discriminate among providers of functionally equivalent services" and not "prohibit or have the effect of prohibiting the provision of personal wireless services." July 18, 2011 Page 2 Also recently enacted at the federal level, section 6409(a) of the Middle Class Tax Relief and Job Creation Action of 2012 (47 U.S.C.A. § 1455(a)(2012)) provides that "a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station." An "eligible facilities request' includes any request to modify an existing wireless tower or base station that involves collocation, removal, or replacement of transmission equipment. (Id.) California state law also impacts placement of communication facilities within the public rights -of -way. Wireless and wireline carriers, as "telephone corporations," have access rights to the public rights -of- way under Section 7901 of the California Public Utilities Code. A telephone corporation enjoys a vested right under Section 7901 to construct "telephone lines" and "necessary fixtures" "along and upon any public road." California courts have long upheld this vested right to enter and use the public right -of- way. In our view, the City possesses only a limited right to curtail the rights of telephone corporations under Section 7901. Section 7901.1(a) grants to the City only the ability to exercise "reasonable control as to the time, place and manner in which roads ... are accessed." Section 7901.1(b) provides that any municipal regulations "at a minimum, be applied to all entities in an equivalent manner," thereby imposing a duty on the City to regulate in a non - discriminatory manner. COMMENTS As mentioned above, some of the provisions of the proposed amendments might constitute a prohibition of services under the federal Telecommunications Act. A number of the special requirements outlined in the Proposed Ordinance relating to wireless facilities placed in the public rights -of -way also appear to go well beyond the regulation permitted under Section 7901 of the Public Utility Code. Finally, we believe the proposed amendment conflicts with Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. We identify some of the problematic provisions in more detail below. Section 20.49.030 — Definitions Base Station — The definition provided by City for "Base Station" is too restrictive and should not exclude DAS. Alternatively, we request the City's language be modified more broadly to: "A Telecom Facility installed and operated by the Telecom Operator for signal transmission and reception." The second sentence regarding antennas and DAS should be excluded from this definition. Wireless Tower— Only the first sentence should apply. The remaining part of this definition inappropriately narrows the meaning of a wireless tower. Section 20.49.040 — Available Technology We do not believe this section is relevant. It attempts to codify the choice of technology used in sites. Although it does not explicitly state various technologies, it is inappropriate for the City to dictate what technology carriers select. For example, under this section, the City could insist that AT &T use DAS or any other "efficient, diminutive, and least obtrusive available technology" as opposed to a Macro Site. Section 20.49.050 (B) - Prohibited Locations We do not believe the City should impose blanket prohibitions on certain locations within the City's Jurisdiction. What if the only available site is in a prohibited location? Carriers should have the July 18, 1012 Page 3 opportunity to at least attempt or work with the City to build a site at any location in the City if that is the only available means. Section 20.49.060 — General Development and Design Standards (Also in Same Section Subsection (E)) Some of the stealthing standards and guidelines in this section and referenced in other sections may not be feasible, such as using surrounding vegetation and structures to camouflage a site. To the extent that such techniques need only be considered but are not required to be implemented, this section may be workable. However, if the City intends to mandate these guidelines and standards, that is problematic, as natural vegetation and structures can impair or block RF signals. Section 20.49.060 (C) - Height There are maximum height standards which may not work from an RF perspective, although we recognize that variances can be granted. Section 20.49.060 (D) - Setback The setback requirement for a wireless tower is 110% of the height of the tower including the antennas or enclosures. Newport Beach is a densely populated area and this setback requirement could effectively prohibit new wireless towers as this requirement may be very difficult to meet in many parts of the City. Section 20.49.100 — Modification of Existing Telecom Facilities This section appears to be an attempt to codify Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. Under Section 6409(a) any facility modification that falls under and complies with Section 6409 must be approved by the City. Section 6409 is not discretionary. We do not believe the City should set standards and definitions that restrict or define the applicability of the Federal Statute, as it appears to do in this section. It is appropriate for the City to describe how it will comply, but it should not attempt to redefine the elements of Section 6409. We hope the City finds these comments to the proposed amendment helpful. We welcome the opportunity to work with the City staff to discuss our legal and practical concerns and to develop solutions amenable to both AT &T and the City. Sincerely, ?Ky I a C. ell Cc: Bradley Hillgren, Vice Chair, City of Newport Beach Planning Commission Members, City of Newport Beach Planning Commission Janet Johnson Brown, Associate Planner a Item 5c: Additional Material Received calwa Planning Commission July 19, 2012 PCIA PA2012 -057 A July 19, 2012 VL4 ELECTRONIC MAIL Newport Beach Planning Commission c/o Janet Johnson Brown, Associate Planner City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 jbrown @newportbeachca.gov Re: Proposed Amendments to Wireless Telecommunications Facilities Ordinance Dear Ms. Brown, PCIA —The Wireless Infrastructure Association ("PCIA" )l and the California Wireless Association ( "CaIWA ")Z writes to provide comment on the City of Newport Beach's proposed amendment to the Newport Beach Municipal Code to update regulations regarding wireless telecommunications facilities in light of the scheduled public hearing on the matter before the Planning Commission on Thursday, July 19, 2012. Attached please find the proposed amendments marked with comments. PCIA and CaIWA respectfully request that Planning Commission defer action on this item until the industry has had an opportunity to sit down with staff and discuss the concerns reflected within this letter and in the attached mark -up. PCIA and CaIWA applaud the City of Newport Beach for recognizing that there have been numerous changes in Federal and State law regarding local regulation of wireless facilities, as well as a tremendous increase in the demand for wireless services that required the industry to change how it responds and keeps up with demand from its subscribers, especially in sophisticated communities like Newport Beach. We encourage the City to craft an ordinance that enables logical and intelligent deployment with an objective set of standards that comply with state and federal law and allows the timely provision of quality wireless service. To this end, in order to ensure that Newport Beach's efforts to modernize its wireless ordinance are as comprehensive as possible, PCIA and CaIWA offer the attached mark -up of the draft amendments. 'PCIA is the national trade association representing the wireless infrastructure industry. PCIA's members develop, own, manage, and operate towers, rooftop wireless sites, and other facilities for the provision of all types of wireless, broadcasting and telecommunications services. With a mandate to facilitate the deployment of wireless infrastructure, PCIA and its members partner with communities across the nation to effect solutions for wireless infrastructure deployment that are responsive to the unique sensitivities and concerns of these communities. ZCaIWA is a non - profit organization made up of volunteers who work in the wireless /telecommunications industry throughout California. Its goal is to raise awareness about the benefits of and to promote the wireless industry, to educate the public and political leaders on issues of importance to the wireless industry, and to cultivate working relationships within and between the industry, the public and political leaders. PCIA a calwa Despite the importance of wireless services and its potential for job creation, local review of the placement of wireless facilities remains a persistent barrier to the deployment of wireless infrastructure. For example, the proposed amendments to Newport Beach's Municipal Code could better facilitate the deployment of wireless infrastructure in order to bring wireless service to Newport Beach's residents. PCIA and CalWA hope to work together with the Planning Commission to find a solution for wireless infrastructure deployment that is responsive to the City of Newport Beach's needs and concerns. For this reason, PCIA and CalWA urge that Planning Commission defer action on this item to allow time to consider and discuss the industry's concerns. The Need for Wireless Infrastructure Wireless services, from basic voice communication to mobile broadband, enable communication, productivity, mobility, and public safety. Wireless infrastructure is the backbone of wireless networks; without it, wireless services cannot be delivered to users. Wireless infrastructure enables use of spectrum by providing the vital link between the end -user and the network. The strategic deployment of wireless infrastructure improves the efficient use of limited spectrum resources, which in turn improves the performance of wireless services. Wireless providers are currently undertaking a multi- faceted effort to deliver next- generation wireless services, such as 4G LTE, in addition to ensuring that current and next - generation networks have the capacity to handle the surge in traffic that comes with the increased adoption rates of smartphones, tablets and other data devices. Wireless networks must adapt to growing capacity demands due to an 1,800 percent increase in traffic on U.S. wireless networks in the last four years and a projected growth of eighteen times current levels of mobile data traffic in the next five years. Mobile Internet users are projected to outnumber wireline Internet users by 2015, when a majority of Americans will utilize a wireless device as their primary internet access tool.5 This will result in two billion networked mobile devices by 2015.6 The need for rapid deployment extends beyond mere consumer convenience. More than 70 percent of all emergency calls are placed using a wireless device .7 The ability to access fire, rescue and police services may be significantly hindered without wireless infrastructure, especially for those relying on wireless as their sole form of voice communications. As noted by the Federal Communications Commission ( "FCC "), [T]he deployment of facilities without unreasonable delay is vital to promote public safety, including the availability of wireless 911, throughout the nation. The importance of wireless communications for public safety is critical, especially as consumers ' Mobile Future, 2011 Mobile Year In Review (Dec. 2011), available at http://mobilcfuture.orgipage/-/images/2011- MYIR.pdf. Quentin Hardy, The Explosion of Mobile Video, N.Y. Times, Feb. 14, 2012, available at http:// bits. blogs .nytimes.com /2012/02/141the- explosion -of- mobile- video /. ' Hayley Tsukayama, IDC: Mobile Internet Users to Outnumber Wireline Users by 2015, Washington Post, Sept. 12, 2011, available at littp : / /www.washingtonpost.com/blogs /post- tech/post/idc- mobile- internet- users -to- outnumber- wireline- users -by- 2015 / 2011/ 09/1 2 /gIQAkZP7MK_blog.html ?wprss=post -tech. e Mobile Future, 2011 Mobile Year In Review. FCC.gov, Guide: Wireless 911 Services, available at http: / /www.fcc.gov /guides /wireless -91 I- services. PCIA 211 a increasingly rely upon their personal wireless service devices as their primary method of communication. $ As NENA observes: Calls must be able to be made from as many locations as possible and dropped calls must be prevented. This is especially true for wireless 9 -1 -1 calls which must get through to the right Public Safety Answering Point ( "PSAP ") and must be as accurate as technically possible to ensure an effective response. Increased availability and reliability of commercial and public safety wireless service, along with improved 9 -1 -I location accuracy, all depend on the presence of sufficient wireless towers.° For this reason, decisions on siting requests made by the personal wireless service industry were not intended by Congress to be subjected "to any but the generally applicable time frames for zoning decision [s] "10 Thus, the adoption of special procedural schemes unique to wireless siting requests should be avoided. The FCC Shotclock Declaratory Ruling and the California Permit Streamlining Act In addition to the provisions of Section 337(c)(7) of the Comnwnications Act of 1934 referred to in the staff report, subsection (B)(ii) of that section contains another requirement that the City should keep in mind when crafting its new ordinance. That provision requires that a "local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request." The FCC recently adopted a Declaratory Ruling on November 18, 2009 under this subsection holding that "a `reasonable period of time' is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, also presumptively, 150 days to process all other applications.s11 Given the rate at which demand for advanced wireless services has been growing, and in particular the growth in the demand for bandwidth as a result of adoption of smart phones and wireless - enabled laptops and tablets, the need for speedy local approvals of proposed wireless deployments has become truly critical to providing the wireless services consumers demand. Indeed, the FCC's presumptive timeframe for action may be superfluous given that California law has, for decades, contained absolute deadlines by which action must be taken. As you are no doubt aware, the California Permit Streamlining Act imposes a 60 -day time limit for approving or denying a requested permit after a project has been detennined to be categorically s Petition for Declaratory Ruling To Clarify Provisions oJ'Section 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 153 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 FCC Red 13994, 14021171 (2009) ( "Shot Clock Ruling "), recon. denied, 25 FCC Red 11157 (2010), q# d, City of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEXIS 1252 (5th Cit. 2012). Shot Clock Ruling, at 36. o H.R. Conf. Rep. No. 104458, 104th Congress, 2nd Sess. 208 (1996). Shotclock Ru ling. a PCIA 211 aj _MMEM exempt from CEQA12 or a negative declaration or mitigated negative declaration has been adopted." The Wireless Provisions in Middle Class Tax Relief and Job Creation Act of 2012 Staff failed to mention the Middle Class Tax Relief and Job Creation Act of 2012, enacted with bipartisan support and signed into law by President Obama on February 22, 2012. One of the measures included in the Act was the creation of a nationwide interoperable broadband network for first responders. In addition to authorizing the FCC to allocate necessary spectrum for this new interoperable network, the Act also contained provisions designed to establish voluntary incentive auctions of wireless spectrum, which are expected to raise $15 billion over the next eleven years. Seven billion dollars of the auction proceeds have been allocated for public safety broadband network build out. The Act reflects an implicit acknowledgement that realizing the financial viability of the spectrum auctioned depends on the ease with which purchasers can deploy the infrastructure needed to utilize it. At the same time, it allays local concerns over the potential impact of the construction of new sites. In a carefully crafted attempt to address both industry and local concerns, Section 6409 of the Act streamlines, and thereby incentivizes the use of, modification of existing sites in lieu of new builds. Although the staff proposals reflect a similar recognition of the need for streamlined review of modifications, PCIA and CaIWA provide herewith a detailed explanation of this recent law due to concerns that the definitions provided in the report fail to reflect those adopted and utilized by the FCC. Section 6409 of the Act requires state and local governments to approve an eligible facilities request for the modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. Section 6409 applies to "eligible facilities requests" for modification of existing wireless towers and base stations. The Act defines "eligible facilities request" as any request for modification of an existing wireless tower or base station that involves: Collocation of new transmission equipment; Removal of transmission equipment; or Replacement of transmission equipment. Many of the terms employed in the section are concepts that were hammered out in negotiations between local government and industry representatives in an agreement that was adopted by reference in regulations promulgated by the FCC. Thus, for example, "collocation" has been defined as "the mounting or installation of an antenna on an existing tower, building or structure for the pur�tose of transmitting and /or receiving radio frequency signals for communications purposes." 4 "Gov. Code § 65950(a)(4). "Gov. Code § 65950(a)(3). 14 Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (2001), available at 47 C.F.R. Part 1, Appendix B ( "Collocation Agreement "). See also Petition for Declaratoryv Ruling To Clarify Provisions of Section 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and Local Ordinances That Classy All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 4 PCIA a calwa The same agreement also addressed the issue of what constitutes a substantial change in the size of a tower: The mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10 %, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or The mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or The mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site. 15 In this agreement, a "tower" is defined as "any structure built for the sole or primary purpose of supporting FCC - licensed antennas and their associated facilities. 16 While the concept of a "base station" is not referenced in the agreement, the term has a long - established meaning consistently used throughout both FCC regulations and case law, namely a fixed location from which wireless signals are transmitted. For example, FCC regulations define a "base station" as "[a] station at a specified site authorized to communicate with mobile stations;" or "A land station in the land mobile service." 17 We urge the Planning Commission to use these well recognized definitions within its Ordinance. FCC Red 13994, 14021 1171 (2009) ( "Shot Clock Ruling'), recon. denied, 25 FCC Red 11157 (2010), affd, City of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEX1S 1252 (5thCit. 2012), 16Collocation Agreement, note, above. 161d. 'See, e.g., 47 C.F.R. § §24.5, 90,7. PCIA Conclusion a calwa Reliable wireless communications are no longer a luxury. Wireless facilities provide a platform for broadband accessibility, creating a link from the City of Newport Beach to the world through high -speed Internet access. The City of Newport Beach has an opportunity to facilitate expanded wireless coverage to its citizens, businesses, and first responders by moving forward with amending its code in consideration of the wireless infrastructure industries' suggestions provided herewith. PCIA and CalWA hope to participate in the ordinance revision process as it develops, if Planning Commission defers action on this item to consider the industry's concerns. We appreciate your support to further our mutual goal of implementing and deploying responsible and timely wireless infrastructure to serve the City of Newport Beach, CA. Sincerely, /s/ Julian Quattlebaum Co- Chair, Regulatory Committee California Wireless Association (CalWA) 800 S. Pacific Coast Hwy # 448 Redondo Beach, CA 90277 310- 356 -6950 jq@channellawgroup.com Sean Scully Co- Chair, Regulatory Committee California Wireless Association (CalWA) 800 S. Pacific Coast Hwy # 448 Redondo Beach, CA 90277 818 -426 -6028 permittech @verizon.net /s/ Kara Leibin Azocar Government Affairs Counsel PCIA —The Wireless Infrastructure Association 901 N. Washington St., Suite 600 Alexandria, VA 22314 703 -535 -7451 Kara. Azocar @pcia.com EXHIBIT "A" A. Purpose. The purpose of this Chapter is to provide for wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating the impacts of such facilities. More specifically, the regulations contained herein are intended to: 1. Encourage the location of Antennas in non - residential areas. 2. Strongly encourage Collocation at new and existing Antenna sites. 3. Encourage Telecom Facilities to be located in areas where adverse impacts on the community and public views are minimized. 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. 20.49.020 — General Provisions. A. Applicability. 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. 1. Prior to construction of any Telecom Facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use Permit (CUP), or Limited Term Permit (LTP), depending on the proposed location and Antenna Classes, in accordance with Section 20.49.070 (Permit Review Procedures). CaIWA Comment No. 2: This section needs to incorporate a reference to 20.49.100 where there Page 11 could be ministerial permits issued for modifications. Also CaIWA recommends a ministerial permit be an option for Class 1 and Class 2 facilities under the circumstance when the facilities are located in non - residential zones and are otherwise not visible. CaIWA Comment No. 1: Some Chapter 20.49 — Wireless Telecommunications Facilities recognition that this land use is In fact a "utility" (as defined in the Sections: States Constitution) and additional 20.49.010 — Purpose and Intent tolerance and balance similarly to 20.49.020 — General Provisions how other utilities are viewed aesthetically should be afforded this 20.49.030 — Definitions critical land use as well. This 20.49.040 — Available Technology "purpose" raises aesthetics above all 20.49.050 — Location Preferences other considerations unfairly as 20.49.060 — General Development and Design Standards compared to other utility land uses. 20.49.070 — Permit Review Procedures 20.49.080 — 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 Emissio s Report 20.49.120 — Right to Review or Revoke Permit 20.49.130 — Removal of Telecom Facilities 20.49.010 — Purpose and Intent. A. Purpose. The purpose of this Chapter is to provide for wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating the impacts of such facilities. More specifically, the regulations contained herein are intended to: 1. Encourage the location of Antennas in non - residential areas. 2. Strongly encourage Collocation at new and existing Antenna sites. 3. Encourage Telecom Facilities to be located in areas where adverse impacts on the community and public views are minimized. 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. 20.49.020 — General Provisions. A. Applicability. 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. 1. Prior to construction of any Telecom Facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use Permit (CUP), or Limited Term Permit (LTP), depending on the proposed location and Antenna Classes, in accordance with Section 20.49.070 (Permit Review Procedures). CaIWA Comment No. 2: This section needs to incorporate a reference to 20.49.100 where there Page 11 could be ministerial permits issued for modifications. Also CaIWA recommends a ministerial permit be an option for Class 1 and Class 2 facilities under the circumstance when the facilities are located in non - residential zones and are otherwise not visible. 2. Applicants who obtain a MUP, CUP or LTP (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 Facility, consistent with Section 20.49.090 (Agreement for Use of City -owned 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. 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. 5. Systems installed or operated at the direction of the City or its contractor. 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, or for which the application for a proposed Telecom Facility is deemed complete prior to the effective date of this Chapter, 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. CaIWA Comment No. 3: Are legal nonconforming amortizations applicable under Page 12 any circumstances to WTF's that are classified as "Legal Nonconforming Facilities "? CaIWA Comment No. 4: The definition of "Base Station" should Include the entire structure and antenna facilities as defined by the FCC. 1 20.49.030 — Definitions. For the purposes of this Chapter, the following definitions shall apply: 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. Antenna Array. Antenna Array means Antennas having transmission and /or reception elements extending in more than one direction, and directional Antennas mounted upon 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. Antenna Classes. Antenna Classes are Telecom Facilities and the attendant Support Equipment separated into distinct "antenna classes." 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. 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 is not limited to City Hall, Police and Fire facilities, recreational facilities, parks, libraries, monuments, signs, streetlights and traffic control standards. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. 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 "hub" or "hotel" where the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. 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. Feasible. Feasible means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal and technological factors. 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. 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. Page 13 CaIWA Comment No. S: This component of the definition is not clear as "Base Station" and "Suport Equipment' would seem to be inclusive of each other. Please clarify. 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. 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. 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. 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 cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters. Support Equipment does not include the Base Station, DAS, Antennas or the building or structure to which the Antennas are attached. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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. Utility Pole. Utility Pole means a single freestanding pole used to support services provided by a public or private utility provider. Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or steel pole used to support electric transmission facilities. 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. CaIWA Comment No. 6: Overemphasis of "aesthetics ". More tolerance and balance should be afforded this land use in recognition of the critical Infrastructure and "utility" that it is. 20.49.040 — Available Technology. All Telecom Facilities approved under this Chapter shall utilize the most efficient, diminutive, 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. 20.49.050 — Location Preferences. A. Preferred Locations. The following is the order of preference for the location and installation of Telecom Facilities, from highest priority location and technique to lowest. Antenna Classes are the Telecom Facilities and their attendant accessory/Support Equipment separated into the following distinct Antenna Classes based on observed aesthetic impacts, as follows: Class 1 (Camouflaged /Screened): A Telecom Facility with Antennas mounted on an existing or proposed non - residential building or other structure not primarily intended to be an antenna support structure. The Antennas, Base Station, and Support Equipment are fully screened so that they are not visible to the general public. Typical examples include: • Wall or roof mounted Antennas that are screened behind radio - frequency transparent, visually- opaque screen walls that match or complement existing exterior surfaces of the building or structure to which they are attached. CalWA Comment • Antennas designed to be incorporated within an architectural feature of a building or No. 7: This structure such as a steeple, cross, cupola, sign, monument, clock tower or other additional architectural element. requirement is • not warranted Base Station equipment that is contained within an existing structure, or placed into a nor relavent to a new attached structure that matches or complements the existing P 9 exterior surfaces of Collocation. the building or structure Please remove. Class 2 (Collocation): A Telecom Facility with Antennas and /or Base Stations co- located on an approved existing Telecom Facility and mounted in the same manner with materially the same or improved screening, or the same camouflage design techniques as the approved or existing Telecom Facility. Class 2 Collocation Telecom Facilities also may incorporate flush - to -grade underground Base Station 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. Class 3 (Visible): A Telecom Facility with Antennas mounted on an existing non - residential building, structure, pole, light standard, Utility Tower, and /or Lattice Tower. The structure is treated with some camouflage design techniques, but the Antenna panels and some portions of the pole, light standards, Utility Tower, or Lattice Tower are still visible. Typical examples include: • Antennas mounted on the exterior of an existing building so that the panels are visible, but painted to match the color and texture of the building or structure. • Antennas flush- mounted atop an existing pole or light standard that are unscreened or un- camouflaged, or attached to an existing pole or light standard utilizing a cylindrical Antenna unit that replicates the diameter and color of the pole or standards. • Antenna panels installed on existing electrical or other Utility Towers, or existing Lattice Towers. CaIWA Comment No. 8: WTF mounted on existing utility infrastructure should be encourage and promoted via Class 1 designation. Page 15 CalWA Comment No. 9: This type of facility should be Class 1. Please reclassify as a facility that is within a rock or shrub type facility is very low profile and minimimally visible, if at all. CaIWA Comment 10: These types of facilities should be included 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. The Telecom Facility is designed to replicate a natural feature or is a Monopole or Lattice Tower. The Antennas are either unscreened and visible, or camouflaged /designed to blend in with their surroundings. Typical examples include: with Class 3 type facilities • as they are "stealthed/ camoflauged • and should be incentivised. Antennas mounted inside or behind elements that replicate natural features such as rocks and shrubbery and located in hillsides or other natural areas where the Telecom Facility blends into the surrounding vegetation or topography (e.g. false rocks or shrubbery). A Telecom Facility consisting of Antennas mounted on or inside a freestanding structure that uses camouflage to disguise the Antennas (e.g. monotree, flagpole, or other freestanding structure). A Telecom Facility consisting of Antennas on the exterior of a freestanding structure that is unscreened /un- camouflaged (e.g. Monopoles or Lattice Tower). Class 5 (Temporary): A Wireless Tower, Antennas and /or Base Station, and associated Support Equipment system that is a temporary Telecom Facility on a site until a permanent (separately approved) Telecom Facility to provide coverage for the same general area is operational but such placement of a temporary Telecom Facility shall not exceed 1 year, consistent with Section 20.52.040. A Wireless Tower, Antennas and /or Base Station, and associated Support Equipment system that is a temporary Telecom Facility located on a site in connection with a special event, as that term may be defined in Municipal Code Section 11.03.020 (General Provisions), may be allowed only upon approval of a Special Events Permit, as regulated by Chapter 11.03. Class 5 installations include but are not limited to equipment mounted on trailers, trucks, skids, or similar portable platforms. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: CaIWA Comment No. 11: Facilities 1�1 should be permitted in 2. these zones If not utilized as 3, a residential use. C. CaIWA Comment No. 12: Open space should be a permitted zone for this critical utility Infrastructure. On properties zoned for single -unit or two -unit residential development, including equivalent PC District designation. On properties zoned for multi -unit residential development and mixed -use development consisting of four (4) dwelling units or less. 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. 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, and notwithstanding any provisions contained in Title 13 to the contrary, shall be subject to the following: 1. All Support Equipment shall be placed below grade in the public right -of -way where the existing utility services (e.g., telephone, power, cable TV) are located underground. Exception: Any pedestal meter required for the purpose of providing electrical service power for the proposed Telecom Facility may be allowed to be installed above ground in a public right -of -way. 2. Whenever Feasible, new Antennas proposed to be installed in public right -of -way shall be placed on existing or replacement utility structures, light standards, or other existing vertical structures. 3. Any proposed installation in the public right -of -way shall comply with all requirements of the Americans with Disability Act (ADA), and all other laws, rules, and regulations. Page 16 CaIWA Comment No. 13: The "General Criteria" primarily focuses on "aesthetics" and weights that criteria above all other concerns. No other utility infrastructure must adhere to such unbalanced criteria and wireless infrastructure. CaIWA requests that the City begin to look in a more balanced and tolerant manner towards this utility as Is afforded all other utility infrastructure. D. Collocation Installations. 1. When Required. To limit the adverse visual effects of and proliferation of individual Telecom Facilities in the City, 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. Exception: If the reviewing authority determines, based on compelling evidence submitted by the applicant, that Collocation of one or more new Telecom Facilities within one thousand (1000) feet of an existing Telecom Facility is not Feasible, and all findings required to grant approval of a MUP, CUP or LTP for a Telecom Facility can be met, 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. 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 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 possible. 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 camouflage, and shall be compatible with existing architectural elements, building materials, other building characteristics, and the surrounding area. Where an existing structure is replaced to allow for the addition of a Telecom Facility, the replacement structure shall retair as its primary use and purpose that of the prior- existing structure. For an example, where a streetlight standard is replaced with a different streetlight standard to allow for the additional installation of Antennas, the primary use shall remain as a streetlight. 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 or LTP 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, screened or camouflaged 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. 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). Page 17 C. Height. 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 (AELUP) for John Wayne Airport and Airport Land Use Commission (ALUC) Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. 1. Maximum Height. Antennas shall be installed at the minimum height possible to provide 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. For ground- mounted Wireless Towers installed on public property or private property, unless the review authority determines a smaller setback would be appropriate based on the surrounding development or uses, the setback '.•- average service to the Telecom Operator's proposed service area. In any case, no Antenna or other telecom equipment or screening structure shall extend higher than the CaIWA Comment No. following maximum height limits: 14: These types of facilities should be a. Telecom Facilities installed on existing streetlight standards, traffic control standards, permitted in Utility Poles, Utility Towers or other similar structures within the public right -of -way residential districts shall not exceed 35 feet in height above the finished grade. that are developed b. Telecom Facilities may be installed on existing Utility Poles or Utility Towers that non - residential land exceed 35 feet above the finished grade where the purposes of the existing Utility uses. 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 CalwA Comment maximum height of 35 feet in nonresidential districts only, and shall not exceed 24 No. 15: Additional inches in width at the base of the flagpole and also shall not exceed 20 inches in heights should be width at the top of the flagpole. As a condition of approval, flagpole sites shall permitted up to 10 above the comply with 4 U.S.C. § 1 et seq. ( the "U.S. Fla g Code"). base height as d. Telecom Facilities may be installed on buildings or other structures to extend up to 5 additional height feet above the base height limit established in Part 2 (Zoning Districts, Allowable could result in Uses, and Zoning District Standards) for the zoning district in which the Telecom lesser overall Facility is located. facilities and will e. Applications for the installation of Telecom Facilities proposed to be greater than 5 allow for additional collocations further feet above the base height limit may be installed up to the maximum height limit for reducing the the zoning district in which the Telecom Facility is located in accordance with Section number of overall 20.30.060.0.2 (Height Limit Areas), subject to review and action by the Planning facilities needed in Commission. The Planning Commission may approve or conditionally approve a the future. CUP for a Telecom Facility to exceed the base height limit by more than 5 feet after making all of the required findings in Section 20.49.070.H (Permit Review Procedures). 2. Over - Height Buildings or Structures. Stealth Telecom Facilities may be installed within or on structures that are permitted to exceed the height limit for the zoning district in which the structure is located, either by right under Title 20 or which have received a discretionary approval, so long as the height of the structure is not being increased. The standard of review shall be based on the type of installation and Antenna Classes being used. 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. For ground- mounted Wireless Towers installed on public property or private property, unless the review authority determines a smaller setback would be appropriate based on the surrounding development or uses, the setback '.•- CaIWA Comment No. 17: This land use is by definition a "utility ". As critical "utility infrastructure" some tolerance of "aesthetics" associated with utility infrastructure needs to considered and afforded this land use as It is afforded other "utilities ". Over emphasis of "aesthetics ". E. CaIWA Comment No. 16: This is unecessary and could exclude many good opportunities for appropriate locations. This requirement should be removed. shall be the greater of: a) the required setback established by the development standards for the zoning district in which the Telecom Facility is proposed to be located; or b) 110% of the maximum height of the Wireless Tower including any Antenna or Antenna enclosures attached thereto. Design Techniques. Design techniques shall result in the installation of a Telecom Facility that is in scale with the surrounding area, hides 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 camouflage, disguise, or otherwise hide the Telecom Facility from view from surrounding uses. 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, camouflage, or hide the Telecom Facility. 4. Utilizing simulated natural features (trees, rocks, etc.) to screen, camouflage, 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 create greater visual impacts than the Telecom Facility itself. F. Screening Standards. Following is a non - exclusive list of potential design and screening techniques that should be considered based on the following Antenna Classes: CalWA Comment No. 17: How is this section anticipated to be applied? Wholesale change out of the WTF would not be acceptable. Please clarify. 2. For Class 1 (Camouflaged /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. For Class 2 (Collocation) Antenna Installations: a. A Collocation installation shall use screening methods materially similar to those used on the existing Telecom Facility and shall not diminish the screening of the existing Telecom Facility. b. If determined necessary by the review authority, use of other improved and appropriate screening methods may be required to screen the Antennas, Base Station, and Support Equipment from public view. 3. For Class 3 (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 Page 19 CalWA Comment No. 18A: The requirement for locating associated radio transmission /amplificaton equipment inside the streetlight pole or traffic control standard "without increasing the pole width or shall be mounted in a Flush -to -grad enclosure adjacent to the base of the pole" is onerous and cost prohibitive. It is also unequitable treatment when compared to other utility infrastructure within the ROW. We request an option for above ground equipment be available. Antennas are mounted. No cables and mounting brackets or any other associated equipment or wires shall be visible from above, below or the side of the Antennas. 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. c. Antenna installations in the public right -of -way and /or on an existing or replacement streetlight pole or traffic control standard shall be limited to Antennas, Supporting Equipment, and cable components that are compatible in scale and proportion to CalWA streetlights and traffic control standards and the poles on which they are mounted. All Comment No. transmission or amplification equipment such as remote radio units, tower mounted 18: If this amplifiers and surge suppressors shall be mounted inside the streetlight pole or traffic additional control standard without increasing the pole width or shall be mounted in a flush -to- screening is done this type grade enclosure adjacent to the base of the pole. of facility d. y Antenna installations on existing or replacement streetlight poles, traffic control should be standards, or Utility Poles shall be screened by means of canisters, radomes, shrouds Class 1. other screening measures whenever Feasible, and treated with exterior coatings of a color and texture to match the existing pole. If Antennas are proposed to be installed CaIWA Comment No. without screening, they shall be flush - mounted to the pole and shall be treated with 19: This should be a exterior coatings of a color and texture to match the existing pole. Class 1 type facility.. Antennas shall be mounted on existing poles wherever Feasible. If a new pole is proposed to replace the existing pole, the replacement pole shall be consistent with the \For size, shape, style and design of the existing pole, including any attached light arms. 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, CaIWA Comment No. or false shrubbery) shall be designed for and located in a setting that is compatible with 20: In industrial/ manufacturing zones the proposed screening method. Such installations shall be situated so as to utilize this design option Is existing natural or manmade features including topography, ve vegetation, buildings, or 9 9 9 9. appropriate and other structures to provide the greatest amount of visual screening. For false trees or helps reduce costs of shrubbery installations, all Antennas and Antenna supports shall be contained within the facilities for all. Also canopy of the tree design, and other vegetation comparable to that replicated in the in proximity to proposed screen structure shall be prevalent in the immediate vicinity of the antenna transmission lattice site, and the addition of new comparable living vegetation may be necessary to enhance towers similar lattice tower designs are the false tree or shrubbery screen structure. most appropriate. c. The installation of a new Monopole or Lattice Tower is prohibited unless the applicant by use of compelling evidence can show to the satisfaction of the review authority that higher priority locations or Stealth Facilities are either not available or are not Feasible. 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. Page 110 CaIWA Comment No. 21: Need clarification on this Class? 6. Support Equipment. All Support Equipment associated with the operation of any Telecom Facility including but not limited to the Base Station shall be placed or mounted in the least visually obtrusive location possible, and shall be screened from view. The following is a non - exclusive list of potential screening techniques that may be utilized based on the type of installation: CalWA Comment a. Buildin Mounted Facilities. For buildin or structure - mounted Antenna installations, No. 22: This is g g not a feasible upport Equipment for the Telecom Facility may be located inside the building, in an option. Should be nderground vault, or on the roof of the building that the Telecom Facility is located on, removed. provided that both the equipment and screening materials are painted the color of the \and ing, roof, and /or surroundings. All screening materials for roof - mounted Telecom ities shall be of a quality and design compatible with the architecture, color, texture materials of the building to which it is mounted. If determined necessary by the w authority, screening to avoid adverse impacts to views from land or buildings at er elevations shall be required. RN a build CaIWA Comment No. 23 It is not feasible to provide above ground support equipment within the pole without some reasonable increase in width being permitted. This section should be redrafted. 0 1 Facilities. For freestanding Telecom Facilities installations, not mounted on structure, Support Equipment for the Telecom Facility: Shall bkvisually screened by locating the Support Equipment in a fully enclosed building or in an underground vault, or Shall be screened in a security enclosure consisting of walls and /or landscaping to effectively screen the Support Equipment at the time of installation. 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. 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 or camouflaged to blend with surrounding materials and colors. c Installations in a Public Right -of -Way. 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. 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 required 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 111 I. Nonconformities. A proposed Telecom Facility shall not create any new or increased nonconformities 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. 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: CaIWA Comment 1. Any missing, discolored, or damaged camouflage or screening shall be restored to its No. 25: For those original permitted condition. facilities that are 2. All graffiti on any components of the Telecom Facility shall be removed promptly in not visible and not accordance the Newport Beach Municipal Code. within a residential 3. All landscaping required for the Telecom Facility shall be maintained in a healthy zone nor within condition at all times, and shall be promptly replaced if dead or dying. of a residential zone a 4. All Telecom Facilities shall be kept clean and free of litter. resi ministerial permit 5. All equipment cabinets shall display a legible contact number for reporting maintenance option to problems to the Facility Operator. incentivize and 6. If a flagpole is used for a Telecom Facility, flags shall be flown and shall be properly reduce processing maintained at all times. The use of the United States flag shall comply with the costs and time provisions of the U.S. Flag Code. should be an CaIWA Comment No. 24: More incentivized zoning option. f— principles should be Incorporated into the "Permit 20.49.070 — Permit Review Procedures. Review Procedures ". The procedures and requirements for preparation, filing, and processing of a permit application for a Telecom Facility shall be as specified in Chapter 20.50 (Permit Application Filing and Processing) unless otherwise noted below. A. Permit Required. All applicants for Telecom Facilities shall apply for a MUP, CUP or LTP, from the Community Development Department, depending on the Antenna Class, height, and duration, as specified in the table below: CaIWA Cc Nonreside ministeria the nonre Table 4 -1 Permit Requirements for Telecom Facilities ir Location of Proposed Tel Located in a Located inside or Located inside or mment No. 25: For Nonresidential within 150 feet of any within 150 feet of ntial there should be a lesser District more than Open Space District any Residential process to further Insentivize sidential locations. 150 feet from a or Public Park or District or Residential (or Public Facility zoned Equivalent PC Equivalent PC) PR or PF District District or Open CaIWA Com Space District or 26: No Colli Public Park or should requ Public Facility zoned PR or PF Class 1 Antenna (a) MUP MUP MUP (Camouflaged/Screened) Class 2 Antenna (a) (b) MUP MUP CUP Collocation Class 3 Antenna (a) MUP MUP CUP Visible Page 112 ment No. )cation ire a CUP. CaIWA Comment No. 27: Should be CaIWA Comment No. 28: For WTF located In allowed via MUP if within height limits of Residential Zones with non - residential land underlying zone and "stealthed ". uses, a MUP or ministerial permit should be `fforded if completely screened. M CaIWA Comment No. 29: Is this for emergency facilities? Not clear. ntenna Class to of Proposed Telecom Fa ' ' Class 4 Antenna (a) (c) MUP CUP CUP (Freestanding Structure Class 5 Antenna (a) (c) (d) LTP LTP LTP (Temporary) CaIWA Comment No. (a) 30: Has the City conducted Environmental Reviews on wireless facilities as a matter of routine or are (b) most facilities determined to be "Exempt" from the provisions of CEQA (Categorically). (C) CaIWA Comment No. 31: What Is the purpose of this limitation? This B. excludes numerous appropriate land use locations that are zoned C. residential but may have other land uses,ie. churches whichD provide excellent locations In proximity to residential usesE. where these facilities are I extremely necessary. (d) 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 by greater than five (5) feet shall require review and action of a CUP by the Planning Commission. Pursuant to this provision, an application that would otherwise be subject to review by the Zoning Administrator would become subject to review by the Planning Commission. The Planning Commission may approve or conditionally approve a CUP, subject to the required findings in Subparagraph H, below. The review procedure for Collocated Telecom Facilities shall be consistent with the applicable review procedure as identified elsewhere in this table depending on the type of installation and Antenna Class being proposed for the Collocation, unless the Collocated Telecom Facility meets the requirements of California Government Code § 65850.6, or involves the Collocation of new transmission equipment and is consistent with the provisions in Section 20.49.100 (Modification of Existing Telecom Facilities). Antennas mounted on or within flagpoles, and temporary Telecom Facilities shall not be permitted on properties either used or zoned residentially. Temporary Telecom Facilities shall be subject to the standard of review for an LTP, pursuant to Section 20.52.040 (Limited Term Permits). 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. 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. 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. 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 a permitted use not requiring a discretionary permit provided the underlying Telecom Facility was granted a discretionary permit and was subject to either an environmental impact report, mitigated negative declaration or negative declaration. If such a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6, it shall be reviewed pursuant the review procedures contained in Section 20.49.070 (Permit Review Procedures). F. 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. CaIWA Comment No. 32: Has it been the practice to conduct a Pa 13 Environmental Reviews pursuant to CEQA for facilities in Newport 9 Beach? If so then would this State Code section be invoked? CalWA Comment No. 33: This requirement is inconsistent with State and Federal Collocation laws. Some recognition of the Class 1 type facility and collocations should be included herein. Also further incentivization of process would be the ministerial permit for Class 1 and collocations that are consistent with State Code section, 65850.6. 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. . G. Public Notice and Public Hearing Requirements. An application for a Telecom Facility shall require a public notice, and a public hearing shall be conducted, in compliance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all Telecom Facilities: 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 by more than 5 feet only after making each of the following findings in addition to the required findings above, as well CaIWA Comment the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use No. 35: Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Additional Permits): height should be permitted as a. The increased height will not result in undesirable or abrupt scale changes or required. An addiitonal 5' relationships being created between the proposed Telecom Facility and existing only is too adjacent developments or public spaces. onerous and will b. Establishment of the Telecom Facility at the requested height is necessary to provide result in many service. more facilties being required20.49.080 — 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). Page 114 1. General. The review authority indicated in Table 4 -1 may approve or conditionally approve an application for a Telecom Facility only after first finding each of the required CaIWA Comment findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and No. 34: These Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits), and criteria are each of the following: extremely subjective and . The proposed Telecom Facility is visually compatible with the surrounding not consider th neighborhood. technical requirements o. \re. The proposed Telecom Facility complies with the technology, height, location and design the land use. standards, as provided for in this Chapter. These criteria a An alternative site(s) located further from a Residential District, Public Park or Public unbalanced with Facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the overemphasis on proposed site. "aesthetics ". 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 by more than 5 feet only after making each of the following findings in addition to the required findings above, as well CaIWA Comment the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use No. 35: Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Additional Permits): height should be permitted as a. The increased height will not result in undesirable or abrupt scale changes or required. An addiitonal 5' relationships being created between the proposed Telecom Facility and existing only is too adjacent developments or public spaces. onerous and will b. Establishment of the Telecom Facility at the requested height is necessary to provide result in many service. more facilties being required20.49.080 — 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). Page 114 CalWA Comment No. 36: CalWA requests that this process be concurrent rather than linear. 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 or LTP. Upon the issuance of a MUP, CUP or LTP, as required, and upon entering into an agreement, the applicant shall obtain any and all other necessary permits, including, encroachment permits for work to be completed in the public right -of -way, 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. Notwithstanding any provision in this Chapter of the Zoning Code, a request for a modification of an existing Wireless Tower or Base Station that involves: CalWA Comment No. 37: What is an example of a "Telecom Facility that does not qualify as a b. The removal of existing transmission equipment; or Wireless Tower or ease Station". Needs c. The replacement of existing transmission equipment clarification. a. The Collocation of new transmission equipment; shall be subject to a ministerial review and approval without the processing of a discretionary permit provided that such modification does not substantially change any of the physical / dimensions of such Wireless Tower or Base Station from the dimensions approved as part of the original discretionary permit for the Wireless Tower or Base Station. However, any modification to a Wireless Tower or Base Station which substantially changes thei physical dimensions of either the Wireless Tower or Base Station, and any other modification to a Telecom Facility that does not qualify as a Wireless Tower or Base Station, shall be subject to the permits and authorizations required by this Chapter. "Substantially Change the Physical Dimensions" means any of the following, and refers to a single change, or a series of changes over time (whether made by the same or different entities) viewed against the City approval(s) for the Wireless Tower or Base Station as existing on February 22, 2012, that individually or cumulatively have any of the effects described below: a. Changing any physical dimension of the Wireless Tower or Base Station in a manner that creates a violation of any safety code adopted by the City, or by the state or federal government. b. Changing the physical dimension of a Stealth Facility on a Wireless Tower, where the changes would be inconsistent with the design of the Stealth Facility, or make the Wireless Tower more visible. c. Changing the physical dimension would require work that would intrude upon the public right -of -way, or any environmentally sensitive area. d. Increasing or decreasing by five percent (5 %) or more any of the following: CalWA Comment No. 38: Nearly any additional facilities incorporated onto an Ca WA Comment No. 39: This threshold existing facility could be interpreted to "make the Wireless Tower more visible ". is vague and unclear. Delete or clarify. This needs to be clarified and relaxed to accomodate collocations without being Page 15 determined to crossing this "threshold CalWA Comment No. 40: This should be increased to 10 %. CaIWA Comment No. 41: These additional constraints are confusing and unclear. Delete or clarify. A simple 10% increase In volume is simple enough. The height, width, or depth in any direction of any portion of the Wireless Tower or Base Station; or The area required for structures required to support the Wireless Tower, including but not limited to guy wires as approved and constructed through the discretionary permit process Provided that in no event shall the height is increased to exceed the maximum height permitted in the applicable zoning district under the City's regulations. e. Increasing by more than five percent (5 %) any of the height, width, depth or area encompassed within any structure or object enclosing the Wireless Tower, such as a fence or line of shrubs or bushes. f. Increasing any of an existing Antenna Array's depth, circumference, or horizontal radius from the Wireless Tower in any direction by more than five percent (5 %). g. Adding more than two Antenna Arrays to an existing Wireless Tower, or adding Antenna Arrays that, if the Antenna Array were an existing Antenna Array, would be of such depth, circumference or radius as to fall outside of item f (above), unless such Antenna Arrays were approved pursuant to Government Code Section 65850.6. h. The mounting of the new or replacement transmission equipment would involve installing new equipment cabinet(s) not permitted under the initial approval and that will not fit within the existing enclosure for the Wireless Tower or Base Station, or would require installation of a new cabinet or enclosure, excluding new equipment and cabinets that will be installed underground. (Note: the proposed installation of a power back -up system [i.e., gas /diesel generator, fuel cell, battery system, etc.] is not Collocation of new transmission equipment.) i. Any increase in any physical dimension of a Wireless Tower or Base Station or any equipment related thereto or any enclosure thereof at a Legal Nonconforming Facility. Each application submitted under this section for a modification to an existing Wireless Tower or Base Station 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 Wireless Tower as originally constructed, if available; a current photograph of the existing Wireless Tower and /or Base Station; and, a graphic depiction of the Wireless Tower and /or Base Station 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 to be performed will not trigger discretionary review under this section. Any permit issued will be conditioned, and may be revoked, and the Telecom Facility 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 triggered a discretionary review. 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 Page 116 CaIWA Comment No. 42: CaMA has worked with jurisdictions across the State. It is our experience that when additional testing is required It Is so far below allowable limits as set by the FCC that Is to be unwarranted. Please delete this requirement as it adds additional burdens and expenses that do not yeild meaningful information. 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 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 Page 117 finding of abandonment, the City shall provide notice to the Telecom Operator last known 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. Removal by City. 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 the 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 Section D. Page 118 5d: Additional Material Received Planning Commission July 19, 2012 PA2012 -057 Newport Beach Wireless Ordinance (July 19, 2012 Version) The following comments are on the version of the Wireless Telecommunications Facilities Ordinance (PA2012 -057) / Code Amendment No. 2012 -004 presented to the Newport Beach Planning Commission as Agenda Item 5 at its July 19, 2012 meeting. The comments were prepared by Jim Mosher ( iimmosher(&vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) , and are a mix of what may seem major and minor points. Disclosure I live in a blufftop home on a "quiet" street overlooking Irvine Avenue, just north of Santiago Road. I enjoy a view across the Upper Newport Bay Nature Reserve to Saddleback Peak in the distance. The only unnatural object impairing my view is the top of a City -owned streetlight pole in the public right -of -way along Irvine Avenue. In March 2007 the City Planning Department (now Division) approved, without public notice, hearing or right of appeal, an application to attach a pair of highly visible commercial cell antennas to the top of that pole. In November, 2008, without an clear authority from the City Council, the City Manager signed a long -term lease for use of the City -owned pole, and in January, 2009 impacted residents were notified of imminent construction by a contractor (which, to date, has not yet happened). Adding insult to injury, this has been designated as a preferred site for future collocation. As it turns out the application was approved based on fraudulent information submitted by the applicant including maps which by failing to disclose a major wireless facility two blocks to the north created the appearance of a major "hole" in coverage where none existed. As it also turns out, under the existing telecom code the planner who approved the application should arguably have referred the matter to a noticed public hearing before the City Council because of the proposal's greater- than - normal impact on private views. In addition, the letting of a lease by the City Manager, although consistent with the Council Policy, was, at least in my view, inconsistent with the City Charter, which permits only the City Council to bind the City (an action which to comply with the Brown Act would have to take place at a noticed public meeting). Finally, there is an ongoing disagreement as to whether the approval was granted in perpetuity (the Planning Division's interpretation), or if as an unexercised building permit issued subject to the Uniform Building Code it expired (in the absence of any construction) 180 days after issuance (my interpretation). My neighbors and I expect no relief from the proposed Wireless Telecommunications Facilities Ordinance since it says it does not affect the status of earlier approvals. Nonetheless this example seems to me a paradigm of at least one situation in which a good telecom code would preclude the issuance of a permit: cell equipment should not be sited where it impairs the enjoyment of public or private property unless there is compelling evidence of a serious gap in coverage that cannot be corrected in any less intrusive manner. Although I appreciate staffs effort in "updating" the code, to the extent the new code would permit the preceding facility to be approved I will find it wanting. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 2 of 11 General Comments The effort to update the City's wireless regulations and integrate them into the Zoning Code is very commendable, particularly to the extent it brings them under the umbrella of uniform hearing and appeal procedures applicable to other zoning /land use decisions. That said, it seems unfortunate that the City's Media and Communications Committee no longer exists, for this is potentially a major revision that would have seemed deserving of more public outreach and input before reaching so finalized a state. Although I cannot guarantee they would have participated, I personally know of others who have not been entirely happy with the current process. Where do the revised regulations belong? The choice of numbering the commercial wireless regulations as "Chapter 20.49" appears to place them in Title 20 (Zoning Code) under Part 4 (Standards for Specific Land Uses). However that part currently contains only a single chapter (Chapter 20.48: Standards for Specific Land Uses), and "Wireless Telecommunications Facilities" would seem logically to be a section under that, much like Section 20.48.190 (Satellite Antennas and Amateur Radio Facilities). The primary reason for not doing so seems to be that the use of a combination of letters and numbers to designate the subsections within a section is more awkward than the decimal scheme of numbering sections within a chapter. Yet a standalone chapter looks out of place when all the other "Specific Land Uses" are sections within a single chapter. Alternatively the commercial wireless regulations might belong as a separate chapter in Part 3 (Site Planning and Development Standards), much like Chapter 20.36 (Landscaping Standards) or Chapter 20.42 (Sign Standards). Since those chapters are arranged alphabetically, "Wireless Telecommunications Facilities" would be Chapter 20.47. The proposed transplanting of the section of wireless- specific definitions from Title 15 to Title 20 as Section 20.49.030 (Definitions) is also awkward, for an effort was made to consolidate all the definitions in the new Zoning Code in a single section: Chapter 20.70 (Definitions). Although an exception has already been made in Chapter 20.42 (Sign Standards) — which has its own definition section — consideration should perhaps be given to including a dedicated section of wireless definitions in the "W" section of Chapter 20.70, rather than as a separate section within the Wireless code where they are disconnected from the other zoning definitions. Specific Comments 20.49.010 — Purpose and Intent. Minor comments: July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 3 of 11 • Since the regulations of the California Public Utilities Commission also come into play, the phrase in paragraph "A. Purpose' that says "consistent with federal law' should perhaps say "consistent with state and federal law." • The capitalization of words in the proposed ordinance is not entirely consistent with the style used in the remainder of the current Zoning Code, although the latter itself has many inconsistencies. "State" and "Federal' should perhaps be capitalized. Words like "Antenna" and "Collocation" should perhaps not be, since defined terms are not generally capitalized in most of the rest of the Zoning Code. Major comment: Paragraph "A. Purpose" differs from the existing code by a single word, yet despite the claim in Attachment PC2 that there is "No policy change," this is in fact a major policy change. The word "public" has been inserted into the phrase "protecting scenic, ocean and coastal public views." Although staff has consistently claimed its presence was implied, it was not there, and the idea that its presence was implied is contradicted by existing Section 15.70.070 (Permit Review Procedures) where: under paragraph B.4 (Visual Simulations) it says "Consideration shall be given to views from both public areas and private residences." and 2. under paragraph F.3.b (Special Review by Council) a required finding for approval by the Council is that "The approved facility will not result in conditions which are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety." • In addition, Section 15.70.090 reserved to the City the modify or revoke the permit if changed circumstances resulted in "Additional impairment of the views from surrounding properties." Likewise, the issuance of a permit for construction in the public right -or -way under NBMC 13.20.070 (Issuance of a PROW Permit) requires consideration of the adverse aesthetic effects of any above ground facilities. • It is clear, then, that an objective of the existing telecom code is the minimization of impacts on private as well as public views — a commitment that is abandoned, to the detriment of the community, in the proposed revision. 20.49.020 — General Provisions. Minor comment: in the old Section 15.70.020 the lettered sections were arranged alphabetically. It is unclear if the new arrangement has a better logic to it. • B. Permit and /or Agreement Required. o This section seems redundant with Sections 20.49.070 and 20.49.090, to which it refers. For example, Section 20.49.070.A. (Permit Required) restates the July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 4 of 11 requirements, and stating them in two places seems unwise: at best the statements are consistent, at worst they contradict each other. • C. Exempt Facilities. o Paragraph 2 seems to refer to a subset of the items that are, or should be, regulated by the code section referred to in paragraph 1. The reference in paragraph 3 seems to be to Chapter 2.20 of the NMBC, rather than to Title 2 in general (most of which doesn't have to do with emergencies). • D. Other Regulations. o Does "Notwithstanding" mean the same as "In addition to "? o Three numbered clauses in the existing Section 15.70.020.D have been removed. Two of them are probably subsumed in the new "E. Regulations not in Conflict or Preempted," but the reasons for no longer requiring compliance with "3. Easements, covenants, conditions or restrictions on the underlying real property" are less obvious. The City has a reluctance to enforce covenants as expressed in Chapter 20.10.C.1, but that reluctance to check compatibility should not necessarily apply to wireless proposals, where the applicant is rarely the landowner. 20.49.030 — Definitions. General comments: Again, the wireless - related definitions might more logically be placed in the "W" section of Chapter 20.70 (Definitions). The City of Riverside does this nicely in Section 19.910.240 of their Municipal Code where they have a subsection of "W" devoted to "Wireless telecommunication facilities" with the header explaining, among other things, "The following definitions pertain to the regulation of telecommunications uses." They have also, unlike Newport Beach, inserted their sign- specific definitions in the "S" section with entries such as "Sign, spandrel." • Many rather poor definitions have been copied over from the existing wireless code. Many other ones really could be cleaned up. Specific comments: • Antenna. o This definition is confused and circular, with "antenna" being included as an example of an antenna. o It seems, intentionally or not, to include the handheld cell phone at the consumer end of the transaction. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 5 of 11 o "Electromagnetic waves" includes light as well as radio- or microwave - frequency emissions, so the definition would seem to include, probably inadvertently, such things as a laser surveying system, or even an ordinary light. Some examples from other cities: o "Antenna, Antenna Array, Wireless Antenna Array, or Wireless Telecommunications Antenna Array." One or more rods, poles, panels, discs, or similar devices used for the transmission or reception of radio frequency signals, that may include omni- directional antennas (whip), directional antennas (panel), and parabolic antennas (disc), but excluding any support structure as defined below. "Antennas" - Any system of wires, poles, rods, reflecting discs, dishes, flat panels, or similar devices, including "whip antennas ", attached to a telecommunications tower, mast or other structure, which in combination with the radio - frequency radiation generating equipment associated with a base station are used for the transmission or reception of electromagnetic waves. o 1." Antenna" means a device or system of wires, poles, rods, dishes or other devices of similar function, used for the transmission and /or reception of radio frequency signals for wireless communications, as described in the Telecommunications Act of 1996. It may include an omni - directional antenna ( "whip "), a directional antenna ( "panel ") and parabolic antenna ( "disc "). It does not include the support structure. 2. "Antenna Array" means a set of one or more antennae. Antenna Array. o This is a particularly inscrutable definition constructed out of inscrutable phrases, especially since our definition of "antenna" includes "arrays." The very concise definition of "Antenna Array" in "2" above seems better. • Antenna Classes o As it stands this seems a purely circular definition. o A reference to proposed Section 20.49.050.A (where the "classes" are actually defined) would seem helpful. • Distributed Antenna System, DAS. o I thought a DAS was a system of small, low- power, closely spaced antenna stations. Does the reference to "third- party" mean it does not qualify as a DAS if it is built and operated solely for the benefit of the installer? • Feasible. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 6 of 11 o Should the definition include economic factors? • Stealth or Stealth Facility. o False trees have been deleted, probably intentionally. • Utility Tower. o It is unclear why a steel pole is regarded as a "tower." Why would the material matter? • Wireless Tower. o The intent of the reference to DAS is unclear. In the example, does it matter if the antenna added is DAS or some other kind? 20.49.040 — Available Technology. • It was unclear under the old code, and remains unclear why this clause is not included in Section 20.49.020 (General Provisions). 20.49.050 — Location Preferences • A. Preferred Locations o Class 2 (Collocation) It is unclear why the spelling "co- located' is used in preference to "collocated." • My reading of this definition is that a completely unscreened facility is Class 2 provided the facility to which new features are added was originally unscreened. It is unclear why this would be a preferred over more numerous but less visible installations. • Reading further through the code I'm not sure "collocation" should be a "class" at all. In other parts it sounds like it is a construction technique that could be applied to any one of the other classes. o Class 3 (Visible) • .,a cylindrical Antenna unit that replicates the diameter and color of the pole or standards" sounds like it might be Class 1, certainly if it was incorporated into the normal length of the pole. o Class 4 (Freestanding Structure) • This class seems to encompass a wide range of structures, some of which are much more obtrusive than others. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 7 of 11 o Class 5 (Temporary) • The meaning of "such placement of a temporary Telecom Facility shall not exceed 1 year, consistent with Section 20.52.040" is less than clear since Telecom Facilities are not mentioned in Section 20.52.040. Does this mean that even though not mentioned there, the procedures of Section 20.52.040 with a time limit of less than 1 year? • C. Installations in the Public Right -of -Way. o "Any pedestal meter required for the purpose of providing electrical service power." • Has this exception been made obsolete by Southern California Edison's conversion to "SmartMeters" which do not need to be physically read by a technician? o "Any proposed installation in the public right -of -way shall comply with all requirements of the Americans with Disability Act (ADA), and all other laws, rules, and regulations." • Isn't this redundant with the catch -all clauses in Section 20.49.020 (General Provisions, paragraphs D and E)? • D. Collocation Installations o In my view this section should be discretionary rather than mandatory. That is, it should say "may be required to collocate" rather than "shall be required to collocate." There is no one - size -fits all solution. Ideally the desirability of collocation versus separate installations should be worked out during the public hearing, but the decision has to be made early in the approval process. o Condition Requiring Future Collocation • If the preceding section is mandatory, this seems redundant with it — that is all approvals would implicitly include this condition. 20.49.060 — General Development and Design Standards. • A. General Criteria. o "For an example, where a streetlight standard is replaced with a different streetlight standard to allow for the additional installation of Antennas, the primary use shall remain as a streetlight." • It is unclear if this is meant as a definition or a design directive. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 8 of 11 The definition of "Wireless Tower" in Section 20.49.030 implies no size or amount of antennae can ever cause a streetlight to become a wireless tower? • Does this mean there is some threshold at which that would happen, and it is to be avoided? • If so, should it be elaborated in one of the listed standards? Or is it already implied in "Blending "? • Apparently this is meant to be read similarly to the explanation of Screening Standards in paragraph 20.49.060.F.3.c ( "compatible in scale and proportion to streetlights and traffic control standards and the poles on which they are mounted") but the tie -in is not immediately obvious to me. • B. Public View Protection. As previously indicated this is a major step back from the present code which protects both private and public views, and not just from the few (and somewhat arbitrarily located) starred spots on the General Plan map. o Although the Zoning Code generally shuns private view protection it is not unprecedented. For example commercial loading docks and roof - mounted equipment are supposed to be screened from view from adjacent residences. And more importantly, the telecom applicant is not normally a landowner restricted to construction on a particular parcel of property • C. Height o The reminders about other codes (such as Section 20.30.060.E and 4 U.S.C. § 1) are helpful, but probably redundant with the catch -all applicability of all other codes in Section 20.49.020 (General Provisions). o Maximum Height. • Since the definition of Telecom Facilities in Section 20.49.030 includes the whole shebang (including the antennas, the support structure to which they are attached and even the land on which it sits) the reference to "Telecom Facilities" at the start of each lettered paragraph is at best confusing. I think what is being regulated is the height at which antennas (rather than Telecom Facilities) can be installed. • Lettered paragraph "b" may need some words to clarify how it relates to paragraph "a" — which it is possibly meant to supersede? July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 9 of 11 • The references to 24 and 20 inches in lettered paragraph "c" are less than clear. They seem to be an attempt to describe the flagpole rather than the "facility," and I'm not sure how "at the top' is to be interpreted. My recollection is cellphone "flagpoles" frequently have an enlarged cylindrical section near the top (housing the antennas) with a small decorative element above that. o Over - Height Buildings or Structures • Stealth Telecom Facilities can evidently be of Class 1, 2 or 4? Exactly how that and "the type of installation" are to affect the review seems vague. o D. Setbacks • The reference to "installed on public property or private property' seems unnecessary. What other kinds of property are there? o E. Design Techniques. • This subsection may have absorbed the protections of private views in the existing code, but whether it is intended to include consideration of private views or not is unclear. o F. Screening Standards. • Class 3: • "No cables and mounting brackets or any other associated equipment or wires shall be visible from above, below or the side of the Antennas." o This sounds good, but may be unrealistic. I don't recall ever seeing an installation with visible antenna panels in which the mounting brackets and cables were not at least partially visible. • "Antenna installations on existing or replacement streetlight poles, traffic control standards, or Utility Poles shall be screened by means of canisters, radomes, shrouds other screening measures whenever Feasible.." o Large canisters and "radomes" added on top of streetlights and other poles are not necessarily less obtrusive or obnoxious than "exposed" antennas mounted flush to the pole. It is not at all obvious why they would be preferred. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 10 of 11 20.49.070 — Permit Review Procedures. • A. Permit Required. Table 4 -1 Permit Requirements for Telecom Facilities" • The index to the existing Zoning Code indicates Title 20 already contains a "Table 4 -1 Animal - Keeping Standards' and a "Table 4 -2 Required Setbacks for Structures Housing Domestic Farm Animals." It would appear that if the proposed code is placed in Part 4 this table will need to be renumbered. Note "a" where it says "depending on the type of installation and Antenna Class being proposed for the Collocation' is confusing. I thought a collocated installation was by definition Class 2. B. Application Submission Requirements for Telecom Facilities on City -owned or City -held Trust Properties. o It should be clearly stated that authorization by the written authorization from the City Manager does not guarantee that a lease for use of the property will ultimately be granted by the City Council. • H. Required Findings for Telecom Facilities o 1. General. • The term "review authority' is used frequently in the proposed code. This seems to be where it is defined. However it is defined by reference to Table 4 -1, and that table is less than clear as to who or what the review authority is in most cases. • The proposed findings are substantially different from the ones the City Council would currently have to make under Section 15.70.070.F.3. • The basic requirement that the facility is needed to provide service seems to be missing. Such a requirement is permitted by case law and needed to prevent an unnecessary proliferation of facilities. • The proposed findings seem to preclude placement in parks or on public facilities, since such an application would have to be denied if any other alternative is feasible. Since the City might want the revenue in preference to installation on a nearby private building, the logic behind this is unclear. 20.49.090 — Agreement for Use of City -Owned or City -Held Trust Property Although outside the scope of the proposed code, I believe, as previously stated, that there is a problem with the procedure of approving the leases formulated by the City Manager and City July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 11 of 11 Attorney for commercial use of public property as current described in Council Policy L -23 (The Siting of Wireless Telecommunications Equipment on City- Owned Land). The agreement is "approved" by lack of action on the part of the City Council, which I believe is inconsistent with both the City Charter and the Brown Act. In addition Policy L -23 will require revision because it currently refers to Chapter 15.70 (which is proposed to be repealed) and to provisions in Title 13 that were never implemented. 20.49.100 - Modification of Existing Telecom Facilities. The reference under the definition of "Substantially change" to February 22, 2012 seems oddly stated, and might seem to have the effect of making the following criteria inapplicable to a facility that did not exist on that date? 20.49.120 - Right to Review or Revoke Permit. o The transplanting of this section from Section 15.70.090 does not seem to have been entirely successful since it no longer explains all the circumstances under which the City reserves the right to review or revoke the permit. 20.49.130 - Removal of Telecom Facilities. o B. Abandonment. o I have no problem with reducing the period from 180 days to 90 days, but the reason for doing this is not explained in the staff report. Omissions In addition to lack of clarity regarding the minimization of impacts on private properties, the proposed code omits important Submission Requirements currently found in Section 15.70.070. These included the justification for the project, maps (including ones illustrating current and proposed coverage), visual simulations (including ones showing impacts on nearby residences), emission data, wind load calculations and evidence of permission to use property. I don't know if some of this may be required for use permits in general, but much of it seems wireless- specific and it is very difficult to see how the reviewing authorities could make an intelligent decision about the application without this information. Finally, I think the proposed code would benefit from comparison with how wireless applications are handled by other California cities. I suspect that beyond the clearer definitions cited above, there are many concepts and specific provisions that could be usefully incorporated. NEWPORT BEACH PLANNING COMMISSION MINUTES NEWPORT BEACH PLANNING COMMISSION MINUTES Council Chambers — 3300 Newport Boulevard Thursday, July 19, 2012 REGULAR MEETING 6:30 p.m. CALL TO ORDER — The meeting was called to order at 6:30 p.m. PLEDGE OF ALLEGIANCE — Commissioner Ameri III. ROLL CALL PRESENT: Ameri, Brown, Kramer, Myers, Toerge, and Tucker ABSENT (Excused): Hillgren 07/19/2012 Staff Present: Kim Brandt, Community Development Director; Brenda Wisneski, Deputy Community Development Director; Leonia Mulvihill, Assistant City Attorney; Tony Brine, City Traffic Engineer; Fern Nueno, Assistant Planner; Makana Nova, Assistant Planner; Janet Johnson - Brown, Associate Planner; and Jim Campbell, Principal Planner IV. ELECTION OF OFFICERS Chair Toerge introduced the item, presented a brief background and called for nominations for the positions of Chair, Vice Chair, and Secretary of the Planning Commission. He noted that nominations do not require a second and explained the election process. ITEM NO. 1 The Commission will elect officers to serve for the year. NOMINATION: Commissioner Tucker nominated Chair Toerge for Chair, Vice Chair Hillgren for Vice Chair, and Commissioner Ameri for Secretary. NOMINATION: Commissioner Myers nominated Chair Toerge for Chair, Vice Chair Hillgren for Vice Chair, and Commissioner Tucker for Secretary. Commissioner Tucker declined nomination for Secretary. Commissioner Tucker's nominations were approved (6 — 0), with Vice Chair Hillgren absent. AYES: Ameri, Brown, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Hillgren V. PUBLIC COMMENTS Chair Toerge invited those interested in addressing the Commission on items not on the agenda, to do so at this time. Dan Purcell commented on commercial waste haulers City -wide, noting that he will continue to address the issue relative to the condition of various restaurants throughout the City. He presented examples of restaurant dumpster areas that needed attention and that have been cleaned up. He highlighted other areas in need of cleaning. Page 1 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 07/19/2012 There being no others wishing to address the Commission, Chair Toerge closed the public comments portion of the meeting. VI. REQUEST FOR CONTINUANCES - None VII. CONSENT ITEMS ITEM NO.2 MINUTES OF JULY 5, 2012 Interested parties were invited to address the Commission. There was no response and Chair Toerge closed public comments on this item. Motion made by Commissioner Tucker and seconded by Commissioner Myers, and carried (6 — 0) with Vice Chair Hillgren absent, to approve the minutes of July 5, 2012, as presented. AYES: Ameri, Brown, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Hillgren VIII. PUBLIC HEARING ITEMS ITEM NO. 3 ROSE BAKERY CAFE USE PERMIT REVIEW (PA2010 -103) Site Location: 3536 East Coast Highway Assistant Planner Fern Nueno presented details of the report addressing the previous approval of an amendment to the Use Permit, conditions of approval specifically requiring a one -year review to determine compliance with the conditions of approval and effectiveness of the Parking Management Plan, site location, existing conditions, off -site parking, use of parking lot by employees and customers until 5:00 p.m., hours of operation, conformance with all conditions of approval, findings and recommendations. She noted that since approval of the use permit there have been three complaints regarding trash, that the trash container is shared by other tenants, and that with staff has worked with the applicant and property management company to resolve the issues. In response to Commissioner Tucker's inquiry, Ms. Nueno noted that the current review is the one - year and last review required under the conditions of approval. Shawn Lim, Applicant, inquired regarding the off -site parking agreement and the number of parking spaces required. He was advised that there are no changes regarding the issue and the original approval waived 15 parking spaces. Interested parties were invited to address the Commission on this item. Dan Purcell spoke in support of the project but suggested adding conditions of approval relative to the trash dumpster, such as requiring the use of one waste hauler and acquiring new bins that will not leak, the location of parking signs, and an existing bench, and he asked that the applicant take ownership of his area. Christine Lester, Property Manager, Pacific West Asset Management Corporation, reported that the trash enclosure is being power washed twice a month now instead of once a month and that they have ordered a replacement trash can with a cover. Page 2 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 07/19/2012 Lance Ellers, Rose's employee, spoke in support of the restaurant and the City. There being no others wishing to address the Commission, Chair Toerge closed public comments for this item. Chair Toerge reported on the Corona del Mar, Vision 2000 Plan which sought to make Corona del Mar a friendly neighborhood and encourage neighborhood cafes with outdoor seating, one of which is Rose Bakery Cafe. Commissioner Ameri inquired about the bench outside of the venue and discussion followed. Ms. Nueno noted that the bench was located in the public right -of -way, that the owners have been made aware of the proper procedure for obtaining a bench to be placed in the public right -of -way, and that staff will work with the applicant to find a location on -site for the existing bench. Motion made by Commissioner Brown and seconded by Commissioner Tucker, and carried (6 — 0) with Vice Chair Hillgren absent„ to receive and file the application. AYES: Amen, Brown, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Hillgren ITEM NO.4 COAST POINT (PREVIOUSLY KNOWN AS CHINA PALACE) USE PERMIT REVIEW (PA2010 -082) Site Location: 2800 West Coast Highway Assistant Planner Makana Nova presented details of the report addressing background, approval of the original use permit, site location, off -site parking, approval of live entertainment and dancing, floor area, hours of operation, compliance with all conditions, calls for Police service, a request to review sales receipts by the Police Department, Code Enforcement violations, findings and recommendations. She noted that the Planning Division worked with the applicant to remove the happy hour signage that was not in compliance with the original conditions of approval. Chair Toerge invited the applicant to address the Commission at this time. Dennis O'Neal, representing the applicant, spoke in support of the item. Interested parties were invited to address the Commission. There was no response and Chair Toerge closed public comments for this item. Motion made by Commissioner Brown and seconded by Commissioner Tucker, and carried (6 — 0) with Vice Chair Hillgren absent, to receive and file the application. AYES: Ameri, Brown, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Hillgren ITEM NO. 5 WIRELESS TELECOMMUNICATIONS FACILITIES ORDINANCE (PA2012 -057) Site Location: N/A Community Development Director Brandt introduced the item and reported that staff received several correspondences regarding the proposed ordinance and related potential concerns. She Page 3 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 07/19/2012 reported that staff is not in a position to respond to all at this time and recommended that the Commission hear the presentation, receive public comments and allow a one -month continuance to allow adequate time to review comments, meet with stakeholders and return to the Commission with a summary of the issues to be resolved. Commissioner Myers strongly agreed with staff recommendations. Associate Planner Brown presented details of the report addressing the proposed code amendment, and provided background of the initial adoption of the ordinance by City Council in 2002. Ms. Brown reviewed the existing regulations and proposed revisions, and identified areas that could be updated and improved upon within the regulations. She addressed Federal law and requirements regarding radio - frequency emissions safety. She presented information regarding review authorities, noticing requirements, application requirements, the appeal process, installations in the public right -of -way, design standards and criteria, requests for variances and setback requirements. In response to Commissioner Ameri's inquiry, Ms. Brown reported that a five percent change reference in the draft ordinance would apply to physical changes in the height, width, diameter or the size of the area surrounding antennas. In reply to Commissioner Myers inquiry regarding the level of outreach provided, Ms. Brown reported that emails were provided to telecommunications contacts advising them of the City Council study session conducted in March, and for this public hearing. Interested parties were invited to address the Commission on this item. Bill Dildine reported on a substantial amount of work taking place at the AT &T building and expressed concerns regarding what is going on there. He addressed lack of parking related to the building and new antennas. George Schroeder spoke in support of the amended ordinance if it will allow for better coverage. Jim Mosher thanked Ms. Brown for her report and presented a picture of an installation that would be allowed by the new ordinance as well as a preferred alternate design. He felt that the ordinance is flawed and defective but agreed with the new rules and addressed co- locations and opined the issue needs more work and consideration. Dean Brown, California Wireless Association, addressed increased demands in capacity, public safety and the related importance of wireless communication, deployment of facilities without delay and details of the PEACE App. John Heffernan, Mission Viejo, Director of External Affairs at AT &T, congratulated staff on its decision to continue the item and expressed appreciation for the opportunity to provide comments. Michelle Felten, Core Development Services, thanked staff for the presentation and commended the City for reviewing the ordinance and recommending updates. She stated agreement with the continuance request and stated her organization submitted comments. There being no others wishing to address the Commission, Chair Toerge closed public comments for this item. Motion made by Commissioner Myers and seconded by Commissioner Tucker, to continue this item until August 23, 2012. Page 4 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES F3 07/19/2012 In response to Commissioner Tucker's inquiry regarding the role of the Commission and the possibility of scheduling a workshop to study the item, allowing additional time for review, Community Development Director Brandt suggested continuing the item to a date certain (August 23, 2012) and return with a report in anticipation of scheduling a study session with the Planning Commission. She offered that the Commission could continue the item to the first meeting in September as well. She reported that there is no scheduling issue but did want to continue with the momentum in order to address the issue. Discussion followed regarding the possibility of scheduling a study session on September 6, 2012. Commissioner Myers and Commissioner Tucker agreed to amend the motion to continue the item to the Planning Commission meeting of September 6, 2012. Amended Motion made by Commissioner Myers and seconded by Commissioner Tucker, and carried (6 — 0) with Vice Chair Hillgren absent, to continue this item until September 6, 2012. AYES: Amen, Brown, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Hillgren Community Development Director Brandt announced the retirement of Ms. Brown and congratulated her on her accomplishments. Chair Toerge thanked Ms. Brown for her years of service to the City. NEW BUSINESS ITEM NO. 6 BALBOA VILLAGE IMPLEMENTATION PLAN (PA2011 -224) Site Location: Balboa Peninsula between 7th Street and A Street including Balboa Village Principal Planner Jim Campbell presented details of the Implementation Plan which addresses the recommendations of the Balboa Village Citizens Advisory Panel (CAP) which were developed following a series of public meetings to create a new vision for Balboa Village and implementation strategies to revitalize the area. He presented details of the Plan including key issues, opportunities, vision and branding. He noted that the area of focus began with the commercial area within Balboa Village and it expanded to include abutting residential areas to the west. Mr. Campbell reported that a consultant was hired to conduct an economic and marketing analysis. He indicated that there is market support for a hotel, residential uses, mixed -use development. He noted that the Plan discusses cultural catalyst uses such as the Nautical Museum and the Balboa Theater as well as the City -owned property at Palm Street. He noted that the consultant worked with Visit Newport Beach to create the vision and brand promise and referenced a separate presentation provided in the agenda packet. Mr. Campbell noted the recommendation to expand the Fun Zone to have it include the entire commercial area and using the name as the "Balboa Village Fun Zone." He indicated the proposed brand vision and brand promise statements, the need to change signage in the area, a proposed a commercial fagade improvement program, developing a targeted tenant - attraction improvement program, special events initiatives in the off -peak and the creation of an RV camping area on the main Balboa parking lot. He noted that the City of Huntington Beach has implemented a successful RV camping area that generates revenue for the city. In addition, he highlighted the Page 5 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 07/19/2012 possible development of the City -owned Palm Street parking lot parcel. Mr. Campbell presented initiatives relative to parking management and the possibility of changing parking requirements. He indicated that the draft plan includes a recommendation for the establishment of a residential parking permit in the area and creation of a shared parking district. In addition he addressed the possible elimination of the commercial parking requirements in the district for new and intensified development, elimination of the in -lieu fees for parking in the district, termination of the current payee obligations and continuance of enhanced Code Enforcement efforts. He stated that another recommendation was to pursue the local Coast Program and he indicated that the draft plan included a recommendation for additional public infrastructure, increased maintenance of the fun zone boardwalk, and it recommends a governance structure to oversee execution of the recommendations. Mr. Campbell reported that the Harbor Commission was generally supportive of the recommendations within the draft Pan but expressed concerns regarding accessibility to and from the waterfront by the boating public. He concluded that the draft Plan will be reviewed by Council subsequent to the Planning Commission hearing. In respond to Chair Toerge's inquiry regarding reconciliation of the elimination of commercial parking requirements with a residential parking permit program, Mr. Campbell stated that the key concept is reliance on additional alternative transportation ideas and felt that the spill -over residential parking permit program will assist in addressing the issue. He added that adequate parking is available during most of the year except during the summer and noted the importance of maintaining and managing the existing parking resources. In reply to Commissioner Myers's inquiry, Mr. Campbell reported that the proposed residential parking program would allow residents to park overnight upon availability of space with a valid permit. Commissioner Tucker suggested to only focus on issues that are within the jurisdiction of the Planning Commission. He noted that elimination of the parking requirements would require a zone text amendment and he inquired regarding in -lieu parking fees. Mr. Campbell reported that parking requirements will come back before the Planning Commission and that there is a provision within the zoning code that deals with the in -lieu parking fee program. The pricing of the in -lieu fee program is not within the Zoning Code, so it would not come before the Commission directly. He noted that current revenue from the in -lieu program is minimal and that Council has suspended additional program participants. He added that should these recommendations be enacted, monitoring them going forward is recommended. Commissioner Tucker noted that some of the changes will run with the land and inquired regarding adoption of the Local Coastal Plan. Mr. Campbell reported that State law requires a Local Coastal Plan but that there are provisions that allow segmenting. Discussion followed regarding continuing Code Enforcement programs and establishing an overnight residential parking permit program. Mr. Campbell reported that the latter would require ordinances by Council to establish such a program. Commissioner Ameri's commented on items under the Planning Commission's jurisdiction and the Commission's ability to provide comments. Commissioner Brown inquired regarding the proposal for RV overnight parking and Mr. Campbell reported that the item would not return to the Commission, but would be a public improvement project under the jurisdiction of the City Council. Page 6 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 07/19/2012 Community Development Director Brandt reported the charge of the CAP was to develop strategies that would need additional work and could be pursued by staff per the direction of Council. She stated that staff would appreciate any comments from the Commission and will transmit them to Council as part of the agenda report. Commissioner Brown stated that ExplorOcean has a plan for the site. He inquired regarding consistencies between their vision and the CAP's. Ms. Brandt stated that representatives from ExplorOcean were at every CAP and NRC meetings and are interested in being a part of the plans for the area. They will be presenting their vision at an upcoming Council study session. She noted that whatever they do will be complimentary to the CAP recommendations. Discussion followed regarding Harbor and Planning Commission jurisdictions. Ms. Brandt reported that staff would need to look at the appropriate permitting authority for each Commission. Mr. Campbell noted that the Planning Commission would have authority over the "dry land" part of the project as well as environmental documents and that water improvements would need Harbor Commission input. Mr. Campbell reported that Chris Miller is the Harbor Resource Manager and is the permitting authority for the Harbor Permits. He brings larger projects forward to the Harbor Commission for their input. Interested parties were invited to address the Commission on this item Don disagreed with calling the area a "Fun Zone ", addressed the revised boundaries, the residential parking permit and felt that Bay Island should not be included in the area. He encouraged the Commission to point out the sensitivity of the parking issues and spoke in support of a trial study area. Marian Doe agreed with proposed improvements but expressed concerns with speeding drivers on Balboa Boulevard. She indicated that need for additional enforcement and support for improved identification of crosswalks. Dan Purcell pointed out that meetings were scheduled during the day, thereby not allowing working residents to provide input. He noted that meetings were run by the consulting group and addressed facade improvements versus neighborhood improvements, residential parking permits, ExplorOcean plans and noted that there were a high number of variables. Chuck Walton disagreed with calling the area a "Fun Zone" and did not feel there will be parking spillage in his neighborhood. He inquired whether the parking spaces will be defined and the timing for implementation of the plan. In addition, he questioned having to pay in order to park in front of his house. Charles Remley commented on the Balboa Theater and questioned if it will ever be self- sustaining. He expressed concerns with the Nautical Museum as well and acknowledged the need to improve streetscapes. He questioned how this resident parking program would be enforced and recommended allowing all -day parking on all cross streets from the Bay to the oceanfront. He also commented on way - finding sign studies. Page 7 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 07/19/2012 Commissioner Tucker noted that parking permit programs are not within the jurisdiction of the Planning Commission. Mr. Campbell noted that the program would be under the jurisdiction of Council. Howard Hall expressed concerns and spoke in opposition to the proposed resident parking permit plan and presented suggested boundaries (Adams Street to Medina Way) and allowing two -hour parking in the BID area. In addition, he referenced the on -line survey used for the branding /visioning process and he noted that "Balboa" was not a choice offered and could only be offered as a suggestion as a "write -in" response. He expressed opposition to adding "Fun Zone" to the name and distributed copies of his written comments. Jim Mosher commented on the commercial fagade improvement program, the Palm Street parking lot and the residential parking permit program. Bill Dildine commented on the parking plans and in opposition to the residential parking permit plan. Michael Murphy spoke in opposition to the residential parking permit plan. Buzz Person spoke representing a number of harbor excursion businesses in the village and noted there is enough parking but felt that eliminating parking requirements will motivate property owners to improve their properties. He noted that some water - related uses can greatly affect land uses (i.e., traffic and parking). There being no others wishing to address the Commission, Chair Toerge closed public comments for this item. In response to an inquiry from Chair Toerge, Mr. Campbell explained the study area and expansion of the fun zone boundary to match the reduced BID boundaries. He indicated that the recommendation to make the BID smaller is due to a transition of land uses throughout the years. He indicated the boundary of the proposed residential parking permit program area, commercial parking areas, delineation of parking spaces and related parking availability, and the approval process of the Implementation Plan. Mr. Campbell noted that once the Plan is approved by Council, staff will be authorized to pursue the work plan and once the programs are approved by Council, the various components will be presented to the Coastal Commission for final authorization. In reply to Chair Toerge's question regarding effects to the Pacific Telephone building, Mr. Campbell reported that Code Enforcement could be stepped up to encourage them to maintain the building. Chair Toerge agreed that additional consideration and outreach needs to be given to naming the area and felt that further subsidy of Balboa Theater is not the best use of public funds and that he would not support engaging public funds to benefit a particular business. Discussion followed regarding the ability to tear down a building if it sustains major damage and the need to comply with zoning codes (i.e. off - street parking). Commissioner Kramer indicated he is generally, in favor or revitalizing Balboa Village but questioned the prudence of the "Fun Zone" naming. He noted that there was a lack of historical background in the report and he questioned the efficacy of the proposed RV use and the residential parking permit plan. Page 8 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 07/19/2012 Commissioner Ameri agreed with Commissioner Kramer's comments regarding naming the area. Commissioner Tucker stated that commercial areas are driven by sales and noted the need for increased customers and less competition in order to end up with a more vibrant area. He felt this would entail some level of incentives or re- zoning current commercial properties to residential. He noted that landlords will reinvest in their properties for a financial return and won't otherwise. Commissioner Brown stated that he concurs with previous comments and felt that the boundaries need to be scaled back in order to focus on commercial areas and parking issues. Community Development Brandt reported that the minutes from this meeting including comments from the Commission and the public will be presented to Council at an upcoming meeting. X. CONTINUED BUSINESS ITEM NO. 7 REVIEW OF RULES OF PROCEDURES OF THE PLANNING COMMISSION (PA2012 -065) Site Location: N/A Ms. Brandt noted the item has been on the Commission's agenda for several meetings and noted that based on the Commission's comments presented previously, staff drafted proposed changes to the Commission's Rules and Procedures. She stated that no comments were received on the proposed changes and presented a final draft for consideration and adoption. Interested parties were invited to address the Commission on this item. Jim Mosher addressed the records retention time and indicated he would favor retaining records for a longer period that suggested. He referenced procedures for amendments and asked for clarity regarding the actions at this time. He felt that it would be wise for the Commission to adopt the complete document rather than just the changes. Assistant City Attorney Mulvihill noted that the City has an adopted records retention policy which is referenced within the By -Laws and felt that it is not necessary to include them in the By -Laws. Dan Purcell commented on videoing meetings and felt that the section on publishing and local media needs to be re- vamped as a whole, City -wide. There being no others wishing to address the Commission, Chair Toerge closed public comments for this item. Assistant City Attorney Mulvihill recommended approval of the amendments to the By -Laws. Motion made by Commissioner Tucker and seconded by Commissioner Ameri, and carried (6 — 0) with Vice Chair Hillgren absent, to, in accordance with Section XV of the Procedures, approve the amendments to the Rules of Procedures of the Planning Commission. AYES: Ameri, Brown, Kramer, Myers, Toerge, and Tucker NOES: None ABSTENTIONS: None ABSENT (Excused): Hillgren Page 9 of 10 NEWPORT BEACH PLANNING COMMISSION MINUTES 07/1912012 XI. STAFF AND COMMISSIONER ITEMS ITEM NO. 8 COMMUNITY DEVELOPMENT DIRECTOR'S REPORT Community Development Director Brandt reported that at this point, there is nothing scheduled for the Planning Commission meeting to August 9, 2012, and that there may be an opportunity to cancel that meeting. In addition, she stated that the amendments approved for the Newport Place area received first reading by Council and announced that the Newport Banning Ranch project will be heard by Council at a special meeting on July 23, 2012, at 6:00 p.m. Ms. Mulvihill noted that the meeting will begin at 5:00 p.m. but that it is anticipated Council will be in closed session until 6:00 p.m. ITEM NO. 9 ANNOUNCEMENTS ON MATTERS THAT THE PLANNING COMMISSION MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT. None ITEM NO. 10 REQUESTS FOR EXCUSED ABSENCES Commissioner Tucker and Chair Toerge requested excused absences on August 9, 2012. XII. ADJOURNMENT There being no further business to come before the Planning Commission, the meeting was adjourned at 9:02 p.m. The agenda for the Regular Meeting was posted on July 13, 2012, at 8:40 a.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. Page 10 of 10 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT September 6, 2012 — Study Session Agenda Item No. 1 SUBJECT: Wireless Telecommunications Facilities Ordinance (PA2012 -057) • Code Amendment No. CA2012 -004 PLANNER: James Campbell, Principal Planner (949) 644 -3210, icampbell(cDnewportbeachca.00v PROJECT SUMMARY An amendment to the Newport Beach Municipal Code ( "NBMC ") to update regulations regarding wireless telecommunication facilities ( "Telecom Facilities "). Regulations currently contained in Chapter 15.70 would be updated and relocated to Title 20 (Planning and Zoning) and Chapter 15.70 would be rescinded in its entirety. RECOMMENDED ACTION Direct staff to modify the proposed draft ordinance as recommended in this report and return to the Planning Commission with the proposed amendment to the NBMC. DISCUSSION The proposed code amendment is a comprehensive update to the existing Wireless Telecommunications Facilities Ordinance ( "Telecom Ordinance "). The amendment is intended to balance the needs of the community and the increasing demand for wireless networks, while mitigating the impact of Telecom Facilities in the community through effective design and screening techniques. The proposed amendment is also intended to reflect current federal and state law, and legal precedent. This item was introduced to the Planning Commission on July 19, 2012, and was continued at the request of staff after receiving several letters from telecommunications industry representatives and interested parties. The Commission requested that staff meet and confer with the industry representatives or other interested parties. The Commission also requested the item be presented at a future study session. Staff, industry representatives, and interested parties met on July 25, 2012. After review of the correspondence previously received and the meeting on July 25th, staff recommends changes to the draft ordinance and seeks Commission direction. Comments, Responses and Recommendations The following discussion summarizes the primary concerns or issues raised by stakeholders and staff's response and recommended action. The proposed draft ordinance as provided in Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 6, 2012 — Study Session Page 2 Attachment PC -1, includes highlights and abbreviated comments consistent with the discussion below. 1. Discretionary Permit Process [Sections 20.49.020 and 20.49.070] Comment: Industry representatives have requested an administrative process and a limited use of discretionary review. Additionally, comments suggest that applying the discretionary process to facilities proposed within the public right -of -way violates state or case law. Response and Recommendation: One purpose of the proposed ordinance is to provide a review process and public notice of proposed facilities through the existing land use entitlement process. Staff believes that the discretionary process is appropriate for visible facilities whether on public or private property or within the public right -of -way. Additionally, staff believes the discretionary process is a reasonable exercise of the City's right to control the time, place and manner Telecom Facilities are established within the public right -of -way. To address the concern that the discretionary process is applied too broadly, staff recommends that Class 1 facilities located on both private and public property be administratively approved without providing notice to the public. 2. Legal Nonconforming facilities [Section 20.49.020 (F)] Comment: Will existing facilities be required to be changed or phased out in the future? Response and Recommendation: This subsection provides for the maintenance and continuation of existing facilities that were lawfully constructed but would be considered nonconforming because they would not comply with the provisions of the proposed ordinance. These legal nonconforming facilities would not be required to be modified or amortized. Future facilities proposed or the future modification of existing facilities would be required to comply with the adopted Telecom Ordinance. The subsection also provides guidance for pending applications. Staff recommends that this section be clarified to avoid any possible confusion as to what standards apply to previously approved facilities and pending applications. 3. Definitions [Section 20.49.030] Comment: Definitions are confusing and need to be clarified or modified to be clearer and to be consistent with federal law. Staff received a comment regarding the location of the definitions within the Zoning Code. Response and Recommendation: Staff believes that the location of the definitions is appropriate given their very specific nature, but recommends that a number of definitions be clarified and /or eliminated to ease ordinance implementation. Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 6, 2012 - Study Session Page 3 4. Technology requirements [Section 20.49.040] Comment: Comments were received indicating that the use of, "...the most efficient, diminutive and least obtrusive technology..." is inappropriate and could theoretically be used to discriminate among carriers based upon their technology. Response and Recommendation: The current ordinance in effect provides this policy language; however, the key factor is that a new facility be unobtrusive. The draft ordinance includes language in Section 20.49.010 (B) indicating that the Telecom Ordinance cannot be applied in a manner that as to unreasonably discriminate among providers of functionally equivalent services. Staff recommends that Section 20.49.040 be modified to stress that new facilities be designed to be as unobtrusive as possible. 5. Location Preferences [Section 20.49.050] Comment: The proposed classification system is confusing and should be clarified. Response and Recommendation: The draft ordinance would create 5 classes of facilities for the purpose of identifying preferred locations, design standards, and permitting. The 5 proposed classes are: Class 1 (Camouflaged /Screened), Class 2 (Collocation), Class 3 (Visible), Class 4 (Free Standing Structure), and Class 5 (Temporary). Staff recommends Class 1 facilities be called "Screened /Stealth" as camouflaging a facility may likely be applied to other classes and might cause confusion as to what classification applies. Staff also recommends the elimination of Class 2 (Collocation) as it is a design technique that could also lead to confusion with other classes. Collocation would be encouraged, but it would not need to be a separate antenna classification. Lastly, staff recommends the creation of a new class for facilities proposed within the public right -of -way to establish a separate process to address issues that are unique to locations within the public right -of -way. 6. Location Preferences, Prohibited Locations [Section 20.49.050 (B)] Comment: Industry representatives indicate a need to access all zones including residential areas. Response and Recommendation: The current ordinance does not allow Telecom Facilities to be installed on residential lots (including residential portions of Planned Communities or Specific Plans) or in passive open space zones except under very limited circumstances. Common area or non - residential lots within residential zones, multi - family buildings, and collocated installations on existing utility towers in utility easements within passive open space zones are the only exceptions and they currently require City Council approval. The proposed ordinance: 1) maintains nearly the same prohibited locations; 2) it provides for Planning Commission review at public hearings for exceptions to location standards making access to multi - family areas easier; and 3) it provides access to low- density residential Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 6, 2012 — Study Session Page 4 areas within the public right -of -way. Staff does not recommend any changes to the draft ordinance. 7. Location Preferences, Installations in the Public Right -of -Way [Section 20.49.050 (C)] Comment: Industry representatives contend that this section includes unreasonable limitations on their use of the public right -of -way. They also contend that underground vaults for support equipment are infeasible and prone to outages during rain events. Response and Recommendation: The draft ordinance requires compliance with Title 13 (Streets and Highways) and proposed facilities must also comply with Chapter 15.32 ( Undergrounding Utilities) of the Municipal Code. The City controls the time, place and manner in which the public right -of -way is accessed. Antennas can be installed on existing vertical poles (i.e. streetlights, traffic signals, or other similar structures); however, new poles within undergrounding districts may not permissible pursuant to provisions of Title 13 and Chapter 15.32 of the Municipal Code. Support equipment, with the exception of pedestal meters, may be required to be located underground in areas where existing utilities are underground and Title 13 also requires new support equipment to be placed in underground vaults whenever feasible. Staff believes that the existing provisions of Title 13 and Chapter 15.32 are consistent with State law and recommends modifying the draft ordinance to eliminate redundant and potentially conflicting provisions. 8. General Development and Design Standards [Section 20.49.060] Comment: Industry representatives indicate that this section is burdensome and is unfair treatment of Telecom Facilities (i.e. Edison is not held to the same standard). Response and Recommendation: The emphasis on making Telecom Facilities as inconspicuous as possible is a requirement of the Telecom Ordinance currently in effect. Telecom providers are not public utilities, and therefore, the City can apply development standards and a review process to ensure that new facilities are appropriately located and designed to be screened or otherwise inconspicuous. Staff does not recommend any changes to the draft ordinance. 9. Height [Section 20.49.060 (C)] Comment: The telecom industry almost universally wants taller facilities to provide clearance from nearby structures and to provide wider coverage to meet the demands of their customers who visit or reside in the City. They also do not want to be subject to a Variance process if there is a need for a facility taller than allowed. Response and Recommendation: The ordinance currently in effect allows Telecom Facilities on private property to be no taller than the upper height limit (e.g. 35 feet in the 26/35 -foot height limitation zone). The City Council can authorize an additional 15 feet and without a Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 6, 2012 — Study Session Page 5 public hearing. The current code does not allow taller facilities as there is no Variance process. The proposed draft ordinance would change the height requirements stated above by allowing Telecom Facilities to be 5 feet above the base height limit (e.g. 26 feet in the 26/35 -foot height limitation zone + 5 feet = 31 feet). This standard treats Telecom Facilities similar to how sloped roofs, elevator shafts, and screened rooftop mechanical equipment are allowed to exceed the based height limit. Discretionary review would be required for a proposal above this standard up to the upper height limit (e.g. 35 -feet in the 26/35 -foot height limitation zone). A Variance, with no limitation on height, would be required for facilities to exceed the upper height limit. Staff recommends several modifications to this section to provide additional clarity, but no change to the proposed standard or process requirements Telecom Facilities within the public right -of -way on streetlights or other structures are limited to 35 feet and antennas proposed on existing power transmission lines that are taller than 35 feet cannot be taller than the existing pole. Again, the City Council has the ability to authorize requests up to 15 additional feet. The draft ordinance does not propose to change these provisions. 10. Setback Standards [Section 20.49.060 (D)] Comment: Industry representatives contend that the proposed "fall zone" setback is unnecessary and restrictive given compliance with building codes. Response and Recommendation: The proposed draft ordinance includes an additional setback distance of 110% of the facility's height as a "fall zone" setback. Staff believes the additional setback is unnecessary and recommends its elimination. All required minimum zoning setbacks would apply and deviation from setbacks would be processed as a typical Modification Permit or Variance rather. 11. Screening Standards [Section 20.49.060 (F)] Comment: Comments suggested that this section is too restrictive, partially duplicative of the definitions of antenna classes, and in need of clarification or exceptions to screening requirements when specific requirements are considered infeasible. Response and Recommendation: This subsection provides standards for screening antennas and support equipment for the 5 proposed antenna classes. Staff recommends that this section be modified to reflect the elimination of the collocation class, creation of the public right -of -way class, and to allow a decision -maker the ability to allow exceptions when specified screening or design requirements are infeasible. Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 6, 2012 - Study Session Page 6 12. Permit Review Procedures [Section 20.49.070] Comment: Concerns have been raised about burdensome review procedures and one comment questioned the elimination of specific application submittal requirements. Response and Recommendation: This section establishes the review authority for the various antenna classes based upon location. Staff recommends this section be modified to reflect that Class 1 be administratively considered without public notice and that Class 2 be modified to only address proposed facilities within the public right -of -way. Staff also recommends that most applications be reviewed by the Zoning Administrator (with public hearings) and only those visible, freestanding structures such as monopoles or tower arrays (the most obtrusive designs) be subject to Planning Commission review (with public hearings). Additional clarification for internal consistency with other changes will be necessary. The Zoning Code provides for application submittal requirements to be established by the Community Development Director rather than by ordinance as it provides appropriate flexibility for differing application types. The current submittal requirements identified by the current ordinance will be included in an updated application. 13. License Agreements for City -Owned Property [Section 20.49.090] Comment: Comments were raised regarding a need to streamline the process and one comment suggests there is a policy to force providers on City property to collect a fee in conflict with state law. Response and Recommendation: A license agreement for the use of City owned structures or property is required by the current Telecom Ordinance and would remain a requirement with the proposed draft ordinance. Consideration of the license agreement is required to occur after a proposed telecom facility is approved. An applicant is required to pay a lease fee established by the City Council and the current monthly fee is $1,500 per month. The City does not require a franchise fee in violation of State law of a public utility. Staff recommends that this section be revised to allow for concurrent processing of a telecom facility and a license agreement. 14. Modification of existing facilities [Section 20.49.100] Comment: Concerns were raised suggesting that the proposed provisions relating to the modification of existing Telecom Facilities are too restrictive and confusing. Additionally, industry representatives claim that this section would violate federal regulations and need further clarification. Response and Recommendation: This section is entirely new and it was drafted in response to 2012 federal regulations that require administrative review of minor changes to existing facilities. Federal law prohibits a state or local government from denying a request to modify an existing facility under particular conditions when the modification does not "substantially change the physical dimensions of a tower or base station." Federal law does not define Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 6, 2012 — Study Session Page 7 what change is considered "substantial' and industry representatives have indicated that 10% is an appropriate standard. Staff recommends this section be simplified for ease of use and recommends a 5% standard due to the need to review more extensive proposals to ensure that public views are protected and visual impacts are avoided. 15. Radio Frequency (RF) Emissions Reporting [Section 20.49.110] Comment: Required reports are unnecessary and burdensome given FCC oversight. Staff also received comments regarding an industry concern about the use of RF emissions as a consideration in the review of applications. Response and Recommendation: Compliance with FCC regulations regarding Radio Frequency (RF) emissions is mandatory and the proposed draft ordinance simply requires operators to demonstrate compliance. Demonstrating compliance should not be considered a burden as it is an industry requirement and staff does not recommend any changes to this section. The City acknowledges that RF emissions are under the jurisdiction of the FCC and considering RF emissions in the course of project review for FCC compliant facilities is precluded by federal law. Summary Staff recommends a series of changes to the proposed draft ordinance to reflect comments received to date. The most noteworthy change is to allow administrative review of Class 1 facilities and the elimination of the "fall zone" setback requirement. The remaining changes are intended to provide clarification and simplification. With these changes, staff believes the needs of the industry will be appropriately balanced with the desire to establish appropriate standards and public review. Next Steps Based upon Commission direction and public feedback, staff will prepare a revised draft ordinance that will be published well in advance of any future public hearing to allow sufficient time for review by the public, stakeholders, and the Commission. Prepared by: Submitted by: W � J es Campbell, Principal Pla ner r n a Wisnesl i, ICP, Deputy Director ATTACHMENTS PC 1 Draft Ordinance highlighted for staff recommended changes PC 2 Comment Letters Intentionally Blank Attachment PC -1 Intentionally Blank EXHIBIT "A" Chapter 20.49 — Wireless Telecommunications Facilities Sections: 20.49.010 —Purpose and Intent 20.49.020 — 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 20.49.080 — 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 and Intent. A. Purpose. The purpose of this Chapter is to provide for wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating the impacts of such facilities. More specifically, the regulations contained herein are intended to: 1. Encourage the location of Antennas in non - residential areas. 2. Strongly encourage Collocation at new and existing Antenna sites. 3. Encourage Telecom Facilities to be located in areas where adverse impacts on the community and public views are minimized. 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. 20.49.020 — General Provisions. A. Applicability. 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 of any Telecom Facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use Permit (CUP), or Limited Term Permit (LTP), depending on the proposed location and Antenna Classes, in accordance with Section 20.49.070 (Permit Review Procedures). V,,. Provide for some administrative approvals Page 11 2. Applicants who obtain a MUP, CUP or LTP (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 Facility, consistent with Section 20.49.090 (Agreement for Use of City -owned 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. 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. 5. Systems installed or operated at the direction of the City or its contractor. 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, or for which the application for a proposed Telecom Facility is deemed complete prior to the effective date of this Chapter, 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. Amortizing exiting facilities not required; clarify language Page 12 modify and clarify as necessary to 20.49.030 — Definitions. eliminate Conflicts, enhance understanding, and utilization For the purposes of this Chapter, the following definitions shall apply: 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. Antenna Array. Antenna Array means Antennas having transmission and /or reception elements extending in more than one direction, and directional Antennas mounted upon 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. Antenna Classes. Antenna Classes are Telecom Facilities and the attendant Support Equipment separated into distinct "antenna classes." 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. 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 is not limited to City Hall, Police and Fire facilities, recreational facilities, parks, libraries, monuments, signs, streetlights and traffic control standards. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. 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 "hub" or "hotel" where the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. 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. Feasible. Feasible means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal and technological factors. 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. 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. Page 13 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. 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. 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. 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 cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters. Support Equipment does not include the Base Station, DAS, Antennas or the building or structure to which the Antennas are attached. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecom munication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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. Utility Pole. Utility Pole means a single freestanding pole used to support services provided by a public or private utility provider. Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or steel pole used to support electric transmission facilities. 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. Page 14 20.49.040 — Available Technology. All Telecom Facilities approved under this Chapter shall utilize the most efficient, diminutive, 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. 20.49.050 — Location Preferences. Reconsider terminology A. Preferred Locations. The following is the order of preference for the location and installation of Telecom Facilities, from highest priority location and technique to lowest. Antenna Classes are the Telecom Facilities and their attendant accessory/Support Equipment separated into the following distinct Antenna Classes based on observed aesthetic impacts, as follows: consider "screened /stealth" rather than camouflaged Class 1 (Camouflaged /Screened): A Telecom Facility with Antennas mounted on an existing or proposed non - residential building or other structure not primarily intended to be an antenna support structure. The Antennas, Base Station, and Support Equipment are fully screened so that they are not visible to the general public. Typical examples include: Wall or roof mounted Antennas that are screened behind radio - frequency transparent, visually- opaque screen walls that match or complement existing exterior surfaces of the building or structure to which they are attached. Antennas designed to be incorporated within an architectural feature of a building or structure such as a steeple, cross, cupola, sign, monument, clock tower or other architectural element. Base Station equipment that is contained within an existing structure, or placed into a new attached structure that matches or complements the existing exterior surfaces of the building or structure convert Class 2 to address facilities in the public right- Class3 (Collocation): A Telecom Facility with Antennas and /or Base Stations co- located on an approved existing Telecom Facility and mounted in the same manner with materially the same or improved screening, or the same camouflage design techniques as the approved or existing Telecom Facility. Class 2 Collocation Telecom Facilities also may incorporate flush - to -grade underground Base Station 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. Class 3 (Visible): A Telecom Facility with Antennas mounted on an existing non - residential building, structure, pole, light standard, Utility Tower, and /or Lattice Tower. The structure is treated with some camouflage design techniques, but the Antenna panels and some portions of the pole, light standards, Utility Tower, or Lattice Tower are still visible. Typical examples include: Antennas mounted on the exterior of an existing building so that the panels are visible, but painted to match the color and texture of the building or structure. Antennas flush- mounted atop an existing pole or light standard that are unscreened or un- camouflaged, or attached to an existing pole or light standard utilizing a cylindrical Antenna unit that replicates the diameter and color of the pole or standards. Antenna panels installed on existing electrical or other Utility Towers, or existing Lattice Towers. Page 15 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. The Telecom Facility is designed to replicate a natural feature or is a Monopole or Lattice Tower. The Antennas are either unscreened and visible, or camouflaged /designed to blend in with their surroundings. Typical examples include: Antennas mounted inside or behind elements that replicate natural features such as rocks and shrubbery and located in hillsides or other natural areas where the Telecom Facility blends into the surrounding vegetation or topography (e.g. false rocks or shrubbery). A Telecom Facility consisting of Antennas mounted on or inside a freestanding structure that uses camouflage to disguise the Antennas (e.g. monotree, flagpole, or other freestanding structure). A Telecom Facility consisting of Antennas on the exterior of a freestanding structure that is unscreened /un- camouflaged (e.g. Monopoles or Lattice Tower). Class 5 (Temporary): A Wireless Tower, Antennas and /or Base Station, and associated Support Equipment system that is a temporary Telecom Facility on a site until a permanent (separately approved) Telecom Facility to provide coverage for the same general area is operational but such placement of a temporary Telecom Facility shall not exceed 1 year, consistent with Section 20.52.040. A Wireless Tower, Antennas and /or Base Station, and associated Support Equipment system that is a temporary Telecom Facility located on a site in connection with a special event, as that term may be defined in Municipal Code Section 11.03.020 (General Provisions), may be allowed only upon approval of a Special Events Permit, as regulated by Chapter 11.03. Class 5 installations include but are not limited to equipment mounted on trailers, trucks, skids, or similar portable platforms. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: 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 consisting of four (4) dwelling units or less. 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. no change in policy 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, and notwithstanding any provisions contained in Title 13 to the contrary, shall be subject to the following: 1. All Support Equipment shall be placed below grade in the public right -of -way where the existing utility services (e.g., telephone, power, cable TV) are located underground. Exception: Any pedestal meter required for the purpose of providing electrical service power for the proposed Telecom Facility may be allowed to be installed above ground in a public right -of -way. 2. Whenever Feasible, new Antennas proposed to be installed in public right -of -way shall be placed on existing or replacement utility structures, light standards, or other existing vertical structures. 3. Any proposed installation in the public right -of -way shall comply with all requirements of the Americans with Disability Act (ADA), and all other laws, rules, and regulations. Simplify and eliminate any redundant or Page 16 conflicts with Title 13 with no chance in Dolicv D. Collocation Installations. 1. When Required. To limit the adverse visual effects of and proliferation of individual Telecom Facilities in the City, 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. Exception: If the reviewing authority determines, based on compelling evidence submitted by the applicant, that Collocation of one or more new Telecom Facilities within one thousand (1000) feet of an existing Telecom Facility is not Feasible, and all findings required to grant approval of a MUP, CUP or LTP for a Telecom Facility can be met, 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. 20.49.060 – General Development and Design Standards. no change other ",—]than clarification A. General Criteria. All Telecom Facilities shall employ design techniques to minimize visual impacts and provide appropriate screening to result in the least 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 possible. 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 camouflage, and shall be compatible with existing architectural elements, building materials, other building characteristics, and the surrounding area. Where an existing structure is replaced to allow for the addition of a Telecom Facility, the replacement structure shall retain as its primary use and purpose that of the prior- existing structure. For an example, where a streetlight standard is replaced with a different streetlight standard to allow for the additional installation of Antennas, the primary use shall remain as a streetlight. 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 or LTP 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, screened or camouflaged 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. 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). Page 17 C. Height. 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 (AELUP) for John Wayne Airport and Airport Land Use Commission (ALUC) Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. 1. Maximum Height. Antennas shall be installed at the minimum height possible to provide average service to the Telecom Operator's 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 existing streetlight standards, traffic control 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 in nonresidential districts only, and 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. As a condition of approval, flagpole sites shall comply with 4 U.S.C. § 1 et seq. (the "U.S. Flag Code "). d. Telecom Facilities may be installed on buildings or other structures to extend up to 5 feet above 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. e. Applications for the installation of Telecom Facilities proposed to be greater than 5 feet above the base height limit may be installed up to the maximum height limit for the zoning district in which the Telecom Facility is located in accordance with Section 20.30.060.C.2 (Height Limit Areas), 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 height limit by more than 5 feet after making all of the required findings in Section 20.49.070.11 (Permit Review Procedures). 2. Over - Height Buildings or Structures. Stealth Telecom Facilities may be installed within or on structures that are permitted to exceed the height limit for the zoning district in which the structure is located, either by right under Title 20 or which have received a discretionary approval, so long as the height of the structure is not being increased. The standard of review shall be based on the type of installation and Antenna Classes being used. 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. For ground- mounted Wireless Towers installed on public property or private property, unless the review authority determines a smaller setback would be appropriate based on the surrounding development or uses, the setback KS i shall be the greater of: a) the required setback established by the development standards for the zoning district in which the Telecom Facility is proposed to be located; or b) 110% of the maximum height of the Wireless Tower including any Antenna or Antenna enclosures attached thereto. eliminate 110% of height setback E. Design Techniques. Design techniques shall result in the installation of a Telecom Facility that is in scale with the surrounding area, hides 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 camouflage, disguise, or otherwise hide the Telecom Facility from view from surrounding uses. 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, camouflage, or hide the Telecom Facility. 4. Utilizing simulated natural features (trees, rocks, etc.) to screen, camouflage, or hide the Telecom Facility. clarify 5. Providing Telecom Facilities of a size that, as determined by the City, is not visually entire obtrusive such that any effort to screen the Telecom Facility would create greater visual subsectio impacts than the Telecom Facility itself. and allow F. Screening Standards. Following is a non - exclusive list of potential design and screening oecisi( techniques that should be considered based on the following Antenna Classes: Imaker flexibil 1. For Class 1 (Camouflaged /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 (Collocation) Antenna Installations: a. A Collocation installation shall use screening methods materially similar to those used on the existing Telecom Facility and shall not diminish the screening of the existing Telecom Facility. b. If determined necessary by the review authority, use of other improved and appropriate screening methods may be required to screen the Antennas, Base Station, and Support Equipment from public view. eliminate collocation and modify as necessary to 3. For Class 3 (Visible) Antenna Installations: address facilities in public tight -of -way 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 Page 19 Antennas are mounted. No cables and mounting brackets or any other associated equipment or wires shall be visible from above, below or the side of the Antennas. 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. c. Antenna installations in the public right -of -way and /or on an existing or replacement streetlight pole or traffic control standard shall be limited to Antennas, Supporting Equipment, and cable components that are compatible in scale and proportion to streetlights and traffic control standards and the poles on which they are mounted. 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 width or shall be mounted in a flush -to- grade enclosure adjacent to the base of the pole. d. Antenna installations on existing or replacement streetlight poles, 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. 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. e. Antennas shall be mounted on existing poles wherever Feasible. If a new pole is proposed to replace the 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. c. The installation of a new Monopole or Lattice Tower is prohibited unless the applicant by use of compelling evidence can show to the satisfaction of the review authority that higher priority locations or Stealth Facilities are either not available or are not Feasible. 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. Page 110 6. Support Equipment. All Support Equipment associated with the operation of any Telecom Facility including but not limited to the Base Station shall be placed or mounted in the least visually obtrusive location possible, and shall be screened from view. The following is a non - exclusive list of potential screening techniques that may be utilized based on the type of installation: a. 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 screening materials are painted the color of the building, roof, and /or surroundings. 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. b. Freestanding Facilities. For freestanding Telecom Facilities installations, not mounted on a building or structure, Support Equipment for the Telecom Facility: Shall be visually screened by locating the Support Equipment in a fully enclosed building or in an underground vault, or Shall be screened in a security enclosure consisting of walls and /or landscaping to effectively screen the Support Equipment at the time of installation. 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. 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 or camouflaged to blend with surrounding materials and colors. c. Installations in a Public Right -of -Way. 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. 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 required 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 111 Nonconformities. A proposed Telecom Facility shall not create any new or increased nonconformities 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. 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 camouflage or 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. 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 Facility 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. 20.49.070 — Permit Review Procedures. The procedures and requirements for preparation, filing, and processing of a permit application for a Telecom Facility shall be as specified in Chapter 20.50 (Permit Application Filing and Processing) unless otherwise noted below. A. Permit Required. All applicants for Telecom Facilities shall apply for a MUP, CUP or LTP, from the Community Development Department, depending on the Antenna Class, height, and duration, as specified in the table below: Table 4 -1 Permit Requirements for Telecom Facilities Antenna Cl Location of Proposed Telecom Facility Located in a Located inside or Located inside or modify to reflect changed Nonresidential within 150 feet of any within 150 feet of District more than Open Space District any Residential classifications, add 150 feet from a or Public Park or District or administrative Residential (or Public Facility zoned Equivalent PC approvals, and Equivalent PC) PR or PF District fewer instances District or Open where Planning Space District or Commission review Public Park or Public Facility is require zoned PR or PF Class 1 Antenna (a) MUP MUP MUP (Camouflaged/Screened) Class 2 Antenna (a) (b) MUP MUP CUP Collocation Class 3 Antenna (a) MUP MUP CUP Visible Page 112 Antenna Class Location of Proposed Telecom Facility Class 4 Antenna (a) (c) MUP CUP CUP (Freestanding Structure Class 5 Antenna (a) (c) (d) LTP LTP LTP (Temporary) (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 by greater than five (5) feet shall require review and action of a CUP by the Planning Commission. Pursuant to this provision, an application that would otherwise be subject to review by the Zoning Administrator would become subject to review by the Planning Commission. The Planning Commission may approve or conditionally approve a CUP, subject to the required findings in Subparagraph H, below. (b) The review procedure for Collocated Telecom Facilities shall be consistent with the applicable review procedure as identified elsewhere in this table depending on the type of installation and Antenna Class being proposed for the Collocation, unless the Collocated Telecom Facility meets the requirements of California Government Code § 65850.6, or involves the Collocation of new transmission equipment and is consistent with the provisions in Section 20.49.100 (Modification of Existing Telecom Facilities). (c) Antennas mounted on or within flagpoles, and temporary Telecom Facilities shall not be permitted on properties either used or zoned residentially. (d) Temporary Telecom Facilities shall be subject to the standard of review for an LTP, pursuant to Section 20.52.040 (Limited Term Permits). B. 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. C. 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. D. 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. E. 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 a permitted use not requiring a discretionary permit provided the underlying Telecom Facility was granted a discretionary permit and was subject to either an environmental impact report, mitigated negative declaration or negative declaration. If such a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6, it shall be reviewed pursuant the review procedures contained in Section 20.49.070 (Permit Review Procedures). F. 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. Page 113 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. . G. Public Notice and Public Hearing Requirements. An application for a Telecom Facility shall require a public notice, and a public hearing shall be conducted, in compliance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all Telecom Facilities: 1. General. The review authority indicated in Table 4 -1 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 desigr 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. 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 by more than 5 feet 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. 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). Page 114 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 or LTP. Upon the issuance of a MUP, CUP or LTP, as required, and upon entering into an agreement, the applicant shall obtain any and all other necessary permits, including, encroachment permits for work to be completed in the public right -of -way, 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. allow for concurrent processing of 20.49.100 — Modification of Existing Telecom Facilities. Ifacility and license agreement Notwithstanding any provision in this Chapter of the Zoning an existing Wireless Tower or Base Station that involves: a. The Collocation of new transmission equipment; b. The removal of existing transmission equipment; or c. The replacement of existing transmission equipment a request for a modification of ntain 5% threshold shall be subject to a ministerial review and approval without the processing of a discretionary permit provided that such modification does not substantially change any of the physical dimensions of such Wireless Tower or Base Station from the dimensions approved as part of the original discretionary permit for the Wireless Tower or Base Station. However, any modification to a Wireless Tower or Base Station which substantially changes the physical dimensions of either the Wireless Tower or Base Station, and any other modification to a Telecom Facility that does not qualify as a Wireless Tower or Base Station, shall be subject to the permits and authorizations required by this Chapter. "Substantially Change the Physical Dimensions" means any of the following, and refers to a single change, or a series of changes over time (whether made by the same or different entities) viewed against the City approval(s) for the Wireless Tower or Base Station as existing on February 22, 2012, that individually or cumulatively have any of the effects described below: a. Changing any physical dimension of the Wireless Tower or Base Station in a manner that creates a violation of any safety code adopted by the City, or by the state or federal government. b. Changing the physical dimension of a Stealth Facility on a Wireless Tower, where the changes would be inconsistent with the design of the Stealth Facility, or make the Wireless Tower more visible. c. Changing the physical dimension would require work that would intrude upon the public right -of -way, or any environmentally sensitive area. d. Increasing or decreasing by five percent (5 %) or more any of the following: Page 115 The height, width, or depth in any direction of any portion of the Wireless Tower or Base Station; or The area required for structures required to support the Wireless Tower, including but not limited to guy wires as approved and constructed through the discretionary permit process Provided that in no event shall the height is increased to exceed the maximum height permitted in the applicable zoning district under the City's regulations. e. Increasing by more than five percent (5 %) any of the height, width, depth or area encompassed within any structure or object enclosing the Wireless Tower, such as a fence or line of shrubs or bushes. f. Increasing any of an existing Antenna Array's depth, circumference, or horizontal radius from the Wireless Tower in any direction by more than five percent (5 %). g. Adding more than two Antenna Arrays to an existing Wireless Tower, or adding Antenna Arrays that, if the Antenna Array were an existing Antenna Array, would be of such depth, circumference or radius as to fall outside of item f (above), unless such Antenna Arrays were approved pursuant to Government Code Section 65850.6. h. The mounting of the new or replacement transmission equipment would involve installing new equipment cabinet(s) not permitted under the initial approval and that will not fit within the existing enclosure for the Wireless Tower or Base Station, or would require installation of a new cabinet or enclosure, excluding new equipment and cabinets that will be installed underground. (Note: the proposed installation of a power back -up system [i.e., gas /diesel generator, fuel cell, battery system, etc.] is not Collocation of new transmission equipment.) i. Any increase in any physical dimension of a Wireless Tower or Base Station or any equipment related thereto or any enclosure thereof at a Legal Nonconforming Facility. Each application submitted under this section for a modification to an existing Wireless Tower or Base Station 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 Wireless Tower as originally constructed, if available; a current photograph of the existing Wireless Tower and /or Base Station; and, a graphic depiction of the Wireless Tower and /or Base Station 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 to be performed will not trigger discretionary review under this section. Any permit issued will be conditioned, and may be revoked, and the Telecom Facility 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 triggered a discretionary review. no change 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 Page 116 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 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 Page 117 finding of abandonment, the City shall provide notice to the Telecom Operator last known 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. Removal by City. 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 the 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 Section D. Page 118 Attachment PC -2 Intentionally Blank atstt Delivered via Email The Honorable Michael Toerge Chairman, Planning Commission City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Item 5a: Additional Material Received Planning Commission July 19, 2012 Kyle C. Powell AT&T Services, Inc. T: 916.341.3504 General Attorney 1215 K Street, Suite 1800 F: 916.443.6836 Sacramento, CA 95814 kyla.powell ®att.com Subject: Proposed Amendment to Wireless Telecommunications Facilities Ordinance (PA2012 -057), Code Amendment No. 2012 -004 Dear Chairman Toerge: AT &T appreciates the opportunity to prov }de comments to the Planning Commission on the proposed amendment to the City of Newport Beach's (City) Wireless Telecommunications Facilities Ordinance. AT &T has been providing communications service in Southern California for over a hundred years and its affiliate has been providing wireless telecommunications services since the late 1980's. AT &T is eager to work with the City in its efforts to address concerns about placement of wireless facilities within the City. AT &T is most concerned about aspects of the proposed amendments that would directly impact the ability of the wireless telecommunications industry to provide service to residents, businesses and visitors in Newport Beach, who rely on cellphones and other wireless devices in their daily lives. As you are no doubt aware, the proposed amendments would affect not only cellphones, but wireless data of all kinds (including audio signals, video signals, computer files, e-mail and data of all kinds that now use wireless transmission) are affected. Over all, we believe the proposed amendments are overly specific and restrictive and could give rise to a host of future issues and problems that may require further ordinance modifications. For example, by providing unique definitions of terms like "base station" that deviate from specific federal law definitions and is but one component of a wireless facility under 47 U.S.C.A 332, the City risks running afoul of Section 332 protections, creating a prohibition on wireless service, and having the entire ordinance preempted. We recommend that the City instead treat wireless facilities more like other facilities and not regulate them. Below, we provide the applicable law and our specific concerns. APPLICABLE LAW The federal Telecommunications Act of 1996, 47 U.S.C.A. 151 et seq. (1996) regulates the deployment of wireless telecommunication service. Section 332(c)(3) gives the FCC certain authority that is exclusive and which preempts conflicting acts by state or local governments. Section 332(c)(3)(7) of the Act, while recognizing that local zoning authority is preserved, requires that local regulation not "unreasonably discriminate among providers of functionally equivalent services" and not "prohibit or have the effect of prohibiting the provision of personal wireless services." July 18, 2011 Page 2 Also recently enacted at the federal level, section 6409(a) of the Middle Class Tax Relief and Job Creation Action of 2012 (47 U.S.C.A. § 1455(a)(2012)) provides that "a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station." An "eligible facilities request' includes any request to modify an existing wireless tower or base station that involves collocation, removal, or replacement of transmission equipment. (Id.) California state law also impacts placement of communication facilities within the public rights -of -way. Wireless and wireline carriers, as "telephone corporations," have access rights to the public rights -of- way under Section 7901 of the California Public Utilities Code. A telephone corporation enjoys a vested right under Section 7901 to construct "telephone lines" and "necessary fixtures" "along and upon any public road." California courts have long upheld this vested right to enter and use the public right -of- way. In our view, the City possesses only a limited right to curtail the rights of telephone corporations under Section 7901. Section 7901.1(a) grants to the City only the ability to exercise "reasonable control as to the time, place and manner in which roads ... are accessed." Section 7901.1(b) provides that any municipal regulations "at a minimum, be applied to all entities in an equivalent manner," thereby imposing a duty on the City to regulate in a non - discriminatory manner. COMMENTS As mentioned above, some of the provisions of the proposed amendments might constitute a prohibition of services under the federal Telecommunications Act. A number of the special requirements outlined in the Proposed Ordinance relating to wireless facilities placed in the public rights -of -way also appear to go well beyond the regulation permitted under Section 7901 of the Public Utility Code. Finally, we believe the proposed amendment conflicts with Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. We identify some of the problematic provisions in more detail below. Section 20.49.030 — Definitions Base Station — The definition provided by City for "Base Station" is too restrictive and should not exclude DAS. Alternatively, we request the City's language be modified more broadly to: "A Telecom Facility installed and operated by the Telecom Operator for signal transmission and reception." The second sentence regarding antennas and DAS should be excluded from this definition. Wireless Tower — Only the first sentence should apply. The remaining part of this definition inappropriately narrows the meaning of a wireless tower. Section 20.49.040 — Available Technology We do not believe this section is relevant. It attempts to codify the choice of technology used in sites. Although it does not explicitly state various technologies, it is inappropriate for the City to dictate what technology carriers select. For example, under this section, the City could insist that AT &T use DAS or any other "efficient, diminutive, and least obtrusive available technology" as opposed to a Macro Site. Section 20.49.050 (e) - Prohibited Locations We do not believe the City should impose blanket prohibitions on certain locations within the City's Jurisdiction. What if the only available site is in a prohibited location? Carriers should have the July 18, 2012 Page 3 opportunity to at least attempt or work with the City to build a site at any location in the City if that is the only available means. Section 20.49.060 — General Development and Design Standards (Also in Same Section Subsection (E)) Some of the stealthing standards and guidelines in this section and referenced in other sections may not be feasible, such as using surrounding vegetation and structures to camouflage a site. To the extent that such techniques need only be considered but are not required to be implemented, this section may be workable. However, if the City intends to mandate these guidelines and standards, that is problematic, as natural vegetation and structures can impair or block RF signals. Section 20.49.060 (C) - Height There are maximum height standards which may not work from an RF perspective, although we recognize that variances can be granted. Section 20.49.060 (D) - Setback The setback requirement for a wireless tower is 110% of the height of the tower including the antennas or enclosures. Newport Beach is a densely populated area and this setback requirement could effectively prohibit new wireless towers as this requirement may be very difficult to meet in many parts of the City. Section 20.49.100 — Modification of Existing Telecom Facilities This section appears to be an attempt to codify Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012. Under Section 6409(a) any facility modification that falls under and complies with Section 6409 must be approved by the City. Section 6409 is not discretionary. We do not believe the City should set standards and definitions that restrict or define the applicability of the Federal Statute, as it appears to do in this section. It is appropriate for the City to describe how it will comply, but it should not attempt to redefine the elements of Section 6409. We hope the City finds these comments to the proposed amendment helpful. We welcome the opportunity to work with the City staff to discuss our legal and practical concerns and to develop solutions amenable to both AT &T and the City. Sincerely, ?Ky I a C. ell Cc: Bradley Hillgren, Vice Chair, City of Newport Beach Planning Commission Members, City of Newport Beach Planning Commission Janet Johnson Brown, Associate Planner Item 5: Additional Materials Received Planning Commission July 19, 2012 core DEVELOPMENT SERVICES 7/18/12 Janet Johnson Brown Associate Planner City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Ms. Brown, On behalf of Core Communications, I would like to thank for the opportunity to provide feedback regarding the City's proposed Wireless Communications Facilities Ordinance. I commend planning staff and the City for determining that an updated ordinance is needed to allow for a uniform set of standards that each application will be subject to. Below are our comments regarding the proposed ordinance amendment. Given our many concerns I feel it would be best if the city would continue this item to a later date to allow for an outreach meeting with the industry. I have found that a dialogue with City staff allows for the industry to understand staff's intent behind each requirement and also allows staff to understand the possible effects certain requirements may have. By understanding the goals and intent of both sides I feel that City staff will develop an ordinance that continues to achieve the City's objectives and protects the wellbeing of all those involved. The following discussion highlights are an area of a concern: 1. Public Notice /Public Hearing Process and Review Authority, specifically Section 20.49.070(G): It should not necessary for all proposed projects to go through the hearing process. The City should utilize a set of objective design standards and if a carrier meets them, there should be no reason to go before any discretionary body, regardless of location. A streamlined process, such as an administrative approval, is recommended for sites that are co- located, building or roof - mounted, or located on utility infrastructures such as SCE towers. The code should explore incentives for applicants to bring forth quality proposals, such as a simplified review process. The City of Anaheim's code demonstrates this type of review, which has increased the wireless telecommunications coverage in the City and while upholding the quality of installations proposed. 2. Installations in the Public Right -of -Way, specifically Section 20.49.050(C): Requiring a full conditional use permit for all proposals in the public right -of -way seems overly cumbersome. If planning review is determined to be absolutely necessary, I recommended a streamlined administrative process. Public right -of -way sites are typically located on existing structures, such as light poles, therefore the aesthetic impact is minimal. I recommend only requiring specific design standards for these specific sites that the carrier will have to adhere to and if those core nE VELOPMENT :ERWES design standards are followed the site is approved. If it the site is unable to meet the City's design standards, then at that time the discretionary planning process may be required. For example, the City of Laguna Niguel has design standards that were adopted by the City Council. If a proposal is unable to conform to those standards then it must go through the planning process. Another example is the City of Tustin which only requires public right -of -way sites to go through an administrative design review process. Furthermore, subsection (1) requires all support equipment be placed below grade. As you may or may not be aware the industry tries to stay away from vaults at all costs. Facilities flood due to rains and the required flush -mount vents. When this occurs, sites go "off air ", creating a gap in coverage, not to mention the fact that it could cost hundreds of thousands of dollars to repair even one facility. When a site goes "off air" the community will lose needed and required coverage. Additionally, some carriers' facilities often include an emergency generator which requires ventilations and specific clearance requirements that would not be able to be enclosed or vaulted. While it is understood that often Public Right -of -Way installations have very little space for equipment and vaulting may be the only option, there are occasionally circumstances where the equipment can be located above ground while being screened. Therefore, by limiting equipment to be undergrounded only, those occasions are restricted. 3. Design Standards and Criteria, specifically Section 20.49.060: Again, I commend the City for instituting design requirements; however, as stated above should the city institute a set of objective design standards and the carrier meets them, there should be no reason to go before any discretionary body, regardless of location. In this situation the aesthetic impacts are no longer of a concern given the facility meets code. A streamlined process, such as an administrative approval, is recommended for sites that meet the required design standards. Furthermore, the code should explore incentives for applicants to bring forth quality proposals, such as a streamlined review process. 4. Deviation to Height Limitations and Location Requirements, specifically Section 20.49.060(C)(1). Subsection (c) should be revisited as several schools, churches, and other public institutions are often in residentially zoned districts and typically they have flagpoles in front of their establishments. In the event there are no other options to locate antennas and equipment within a steeple, some other portion of the building, or a more appropriate stealth design; prohibiting flagpoles in residential zones may inadvertently cause a prohibition of service. In those cases where the current proposed code would allow a flagpole installation, 35' is an extremely restrictive height. As previously stated, wireless telecommunications antennas require line of site free of obstructions. Given that a great majority of buildings within the City are multiple stories and some areas of the City have topography challenges, 35' will not likely provide the necessary line of site. Therefore, it is recommended that no height limit be specified. The restriction of a 24" diameter pole is also extremely limiting. Often carriers core nE VELOPMENT :ERViCES require at least 30" or more due to different technology and azimuth requirements. Again, it is recommended that a larger diameter measurement be provided or the size is left unspecified. Height may also be an issue in Subsection (d) having adverse implications on roof- mounted installations. The City is a beach community and often buildings are constructed to the maximum height limit. Only allowing five feet above base height limit may not be enough to allow for screening and many carriers' antenna technology. Some carriers have antennas in lengths of up to eight feet. Additionally, five feet may not be enough to meet EME safety standards depending on where on the rooftop the antennas are proposed. Therefore, it is extremely likely that majority of all rooftop installations will be greater than five feet above the base height limit requiring heightened review. This could potentially cause an architecturally integrated rooftop installation to proceed through a longer, more cumbersome process because it cannot meet the narrow five foot height limitation. 5. Setback Requirements, specifically Section 20.49.060(D): Wireless facilities are required to go through building plan check and demonstrate that they are structurally sound, just as any other building in the City would be required. However, no other building in the City is required to provide a "fall zone ", yet the proposed wireless code amendment will require a 110% "fall zone" setback for any new ground mounted wireless facility. It is unclear why wireless telecommunications facilities would be held to a different standard. Additionally, as previously stated, wireless telecommunications antennas must have an unobstructed line of site which will often require the antennas to be much taller than the 25' example stated in the staff report. In fact, the average height of concealed ground mounted facilities will likely be around 55', to allow for a 45' centerline of antennas and additional camouflaging above the antennas. Therefore, if a 55' ground- mounted facility were proposed the 110% setback would be 60.5'from all properties lines, which would likely inadvertently prohibit any ground- mounted wireless facilities on the majority of properties within the City. 6. Modification of Existing Telecom Facilities: Given the recent "Tax Relief Act" legislation, I recommend the City handle all modification requests as ministerial permits. Limiting any change to 5% or less, as the current ordinance amendment proposes, may potentially prohibit any maintenance or equipment changes /additions that will increase the efficiency or technology of the facility . 7. Zoning District Land Uses and Permit Requirements: The City should not prohibit a wireless installation in any zone. This opens the possibility of the City prohibiting telecommunications services. Prohibiting an installation outright in any zone may cause the City to unknowingly create a barrier to entry which inadvertently regulates the business affairs of a wireless company. This is likely not the intention of the City and therefore I recommend that the City adopt specific design standards for the residential and open space zones to protect the integrity of the area. Also, many properties may be zoned residential, but are not used for residential core DEVELOPMENT SERVICES purposes, which should be taken into consideration. It should be noted that many cities have found having wireless facilities in their parks zoned either residential or open space has created an avenue of revenue for the City. The entire ordinance is quite lengthy, somewhat burdensome and may provide a barrier for wireless services to be provided to the Newport Beach community. Given the concerns explained in the text above, I feel it would be best if the City would continue this item to a later date to allow for an outreach meeting with the industry. I would like to thank the City for notifying us of this proposed amendment and look forward to working together in crafting a lawful ordinance that protects the residents and businesses of the City of Newport Beach along with operation of the wireless industry. Yours truly, Michelle Felten Senior Project Manager 5d: Additional Material Received Planning Commission July 19, 2012 PA2012 -057 Newport Beach Wireless Ordinance (July 19, 2012 Version) The following comments are on the version of the Wireless Telecommunications Facilities Ordinance (PA2012 -057) / Code Amendment No. 2012 -004 presented to the Newport Beach Planning Commission as Agenda Item 5 at its July 19, 2012 meeting. The comments were prepared by Jim Mosher ( iiimmosher (cDyahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) , and are a mix of what may seem major and minor points. Disclosure I live in a blufftop home on a "quiet" street overlooking Irvine Avenue, just north of Santiago Road. I enjoy a view across the Upper Newport Bay Nature Reserve to Saddleback Peak in the distance. The only unnatural object impairing my view is the top of a City -owned streetlight pole in the public right -of -way along Irvine Avenue. In March 2007 the City Planning Department (now Division) approved, without public notice, hearing or right of appeal, an application to attach a pair of highly visible commercial cell antennas to the top of that pole. In November, 2008, without an clear authority from the City Council, the City Manager signed a long -term lease for use of the City -owned pole, and in January, 2009 impacted residents were notified of imminent construction by a contractor (which, to date, has not yet happened). Adding insult to injury, this has been designated as a preferred site for future collocation. As it turns out the application was approved based on fraudulent information submitted by the applicant including maps which by failing to disclose a major wireless facility two blocks to the north created the appearance of a major "hole" in coverage where none existed. As it also turns out, under the existing telecom code the planner who approved the application should arguably have referred the matter to a noticed public hearing before the City Council because of the proposal's greater- than - normal impact on private views. In addition, the letting of a lease by the City Manager, although consistent with the Council Policy, was, at least in my view, inconsistent with the City Charter, which permits only the City Council to bind the City (an action which to comply with the Brown Act would have to take place at a noticed public meeting). Finally, there is an ongoing disagreement as to whether the approval was granted in perpetuity (the Planning Division's interpretation), or if as an unexercised building permit issued subject to the Uniform Building Code it expired (in the absence of any construction) 180 days after issuance (my interpretation). My neighbors and I expect no relief from the proposed Wireless Telecommunications Facilities Ordinance since it says it does not affect the status of earlier approvals. Nonetheless this example seems to me a paradigm of at least one situation in which a good telecom code would preclude the issuance of a permit: cell equipment should not be sited where it impairs the enjoyment of public or private property unless there is compelling evidence of a serious gap in coverage that cannot be corrected in any less intrusive manner. Although I appreciate staff's effort in "updating" the code, to the extent the new code would permit the preceding facility to be approved I will find it wanting. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 2 of 11 General Comments The effort to update the City's wireless regulations and integrate them into the Zoning Code is very commendable, particularly to the extent it brings them under the umbrella of uniform hearing and appeal procedures applicable to other zoning /land use decisions. That said, it seems unfortunate that the City's Media and Communications Committee no longer exists, for this is potentially a major revision that would have seemed deserving of more public outreach and input before reaching so finalized a state. Although I cannot guarantee they would have participated, I personally know of others who have not been entirely happy with the current process. Where do the revised regulations belong? The choice of numbering the commercial wireless regulations as "Chapter 20.49" appears to place them in Title 20 (Zoning Code) under Part 4 (Standards for Specific Land Uses). However that part currently contains only a single chapter (Chapter 20.48: Standards for Specific Land Uses), and "Wireless Telecommunications Facilities" would seem logically to be a section under that, much like Section 20.48.190 (Satellite Antennas and Amateur Radio Facilities). The primary reason for not doing so seems to be that the use of a combination of letters and numbers to designate the subsections within a section is more awkward than the decimal scheme of numbering sections within a chapter. Yet a standalone chapter looks out of place when all the other "Specific Land Uses" are sections within a single chapter. Alternatively the commercial wireless regulations might belong as a separate chapter in Part 3 (Site Planning and Development Standards), much like Chapter 20.36 (Landscaping Standards) or Chapter 20.42 (Sign Standards). Since those chapters are arranged alphabetically, "Wireless Telecommunications Facilities" would be Chapter 20.47. The proposed transplanting of the section of wireless- specific definitions from Title 15 to Title 20 as Section 20.49.030 (Definitions) is also awkward, for an effort was made to consolidate all the definitions in the new Zoning Code in a single section: Chapter 20.70 (Definitions). Although an exception has already been made in Chapter 20.42 (Sign Standards) — which has its own definition section — consideration should perhaps be given to including a dedicated section of wireless definitions in the "W" section of Chapter 20.70, rather than as a separate section within the Wireless code where they are disconnected from the other zoning definitions. Specific Comments 20.49.010 — Purpose and Intent. Minor comments: July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 3 of 11 • Since the regulations of the California Public Utilities Commission also come into play, the phrase in paragraph "A. Purpose" that says "consistent with federal law' should perhaps say "consistent with state and federal law." • The capitalization of words in the proposed ordinance is not entirely consistent with the style used in the remainder of the current Zoning Code, although the latter itself has many inconsistencies. "State' and "Federal' should perhaps be capitalized. Words like "Antenna" and "Collocation" should perhaps not be, since defined terms are not generally capitalized in most of the rest of the Zoning Code. Major comment: Paragraph "A. Purpose' differs from the existing code by a single word, yet despite the claim in Attachment PC2 that there is "No policy change," this is in fact a major policy change. The word "public" has been inserted into the phrase "protecting scenic, ocean and coastal public views." Although staff has consistently claimed its presence was implied, it was not there, and the idea that its presence was implied is contradicted by existing Section 15.70.070 (Permit Review Procedures) where: under paragraph B.4 (Visual Simulations) it says "Consideration shall be given to views from both public areas and private residences." and 2. under paragraph F.3.b (Special Review by Council) a required finding for approval by the Council is that "The approved facility will not result in conditions which are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety." • In addition, Section 15.70.090 reserved to the City the modify or revoke the permit if changed circumstances resulted in "Additional impairment of the views from surrounding properties." Likewise, the issuance of a permit for construction in the public right -or -way under NBMC 13.20.070 (Issuance of a PROW Permit) requires consideration of the adverse aesthetic effects of any above ground facilities. • It is clear, then, that an objective of the existing telecom code is the minimization of impacts on private as well as public views — a commitment that is abandoned, to the detriment of the community, in the proposed revision. 20.49.020 — General Provisions. Minor comment: in the old Section 15.70.020 the lettered sections were arranged alphabetically. It is unclear if the new arrangement has a better logic to it. • B. Permit and/or Agreement Required. o This section seems redundant with Sections 20.49.070 and 20.49.090, to which it refers. For example, Section 20.49.070.A. (Permit Required) restates the July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 4 of 11 requirements, and stating them in two places seems unwise: at best the statements are consistent, at worst they contradict each other. C. Exempt Facilities. o Paragraph 2 seems to refer to a subset of the items that are, or should be, regulated by the code section referred to in paragraph 1. The reference in paragraph 3 seems to be to Chapter 2.20 of the NMBC, rather than to Title 2 in general (most of which doesn't have to do with emergencies). • D. Other Regulations. o Does "Notwithstanding" mean the same as "In addition to "? o Three numbered clauses in the existing Section 15.70.020.D have been removed. Two of them are probably subsumed in the new "E. Regulations not in Conflict or Preempted," but the reasons for no longer requiring compliance with "3. Easements, covenants, conditions or restrictions on the underlying real property" are less obvious. The City has a reluctance to enforce covenants as expressed in Chapter 20.10.C.1, but that reluctance to check compatibility should not necessarily apply to wireless proposals, where the applicant is rarely the landowner. 20.49.030 — Definitions. General comments: Again, the wireless - related definitions might more logically be placed in the "W" section of Chapter 20.70 (Definitions). The City of Riverside does this nicely in Section 19.910.240 of their Municipal Code where they have a subsection of "W" devoted to "Wireless telecommunication facilities" with the header explaining, among other things, "The following definitions pertain to the regulation of telecommunications uses." They have also, unlike Newport Beach, inserted their sign- specific definitions in the "S" section with entries such as "Sign, spandrel." • Many rather poor definitions have been copied over from the existing wireless code. Many other ones really could be cleaned up. Specific comments: • Antenna. o This definition is confused and circular, with "antenna" being included as an example of an antenna. o It seems, intentionally or not, to include the handheld cell phone at the consumer end of the transaction. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 5 of 11 o "Electromagnetic waves" includes light as well as radio- or microwave - frequency emissions, so the definition would seem to include, probably inadvertently, such things as a laser surveying system, or even an ordinary light. Some examples from other cities: o "Antenna, Antenna Array, Wireless Antenna Array, or Wireless Telecommunications Antenna Array." One or more rods, poles, panels, discs, or similar devices used for the transmission or reception of radio frequency signals, that may include omni - directional antennas (whip), directional antennas (panel), and parabolic antennas (disc), but excluding any support structure as defined below. o "Antennas" - Any system of wires, poles, rods, reflecting discs, dishes, flat panels, or similar devices, including "whip antennas', attached to a telecommunications tower, mast or other structure, which in combination with the radio - frequency radiation generating equipment associated with a base station are used for the transmission or reception of electromagnetic waves. 0 1." Antenna" means a device or system of wires, poles, rods, dishes or other devices of similar function, used for the transmission and /or reception of radio frequency signals for wireless communications, as described in the Telecommunications Act of 1996. It may include an omni - directional antenna ( "whip "), a directional antenna ( "panel') and parabolic antenna ( "disc "). It does not include the support structure. 2. "Antenna Array" means a set of one or more antennae. • Antenna Array. o This is a particularly inscrutable definition constructed out of inscrutable phrases, especially since our definition of "antenna" includes "arrays." The very concise definition of "Antenna Array' in "2" above seems better. Antenna Classes o As it stands this seems a purely circular definition. o A reference to proposed Section 20.49.050.A (where the "classes' are actually defined) would seem helpful. • Distributed Antenna System, DAS. o I thought a DAS was a system of small, low- power, closely spaced antenna stations. Does the reference to "third- party" mean it does not qualify as a DAS if it is built and operated solely for the benefit of the installer? Feasible. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 6 of 11 o Should the definition include economic factors? • Stealth or Stealth Facility. o False trees have been deleted, probably intentionally. • Utility Tower. o It is unclear why a steel pole is regarded as a "tower." Why would the material matter? • Wireless Tower. o The intent of the reference to DAS is unclear. In the example, does it matter if the antenna added is DAS or some other kind? 20.49.040 — Available Technology. • It was unclear under the old code, and remains unclear why this clause is not included in Section 20.49.020 (General Provisions). 20.49.050 — Location Preferences • A. Preferred Locations o Class 2 (Collocation) • It is unclear why the spelling "co- located' is used in preference to "collocated." • My reading of this definition is that a completely unscreened facility is Class 2 provided the facility to which new features are added was originally unscreened. It is unclear why this would be a preferred over more numerous but less visible installations. • Reading further through the code I'm not sure "collocation" should be a "class" at all. In other parts it sounds like it is a construction technique that could be applied to any one of the other classes. o Class 3 (Visible) • "a cylindrical Antenna unit that replicates the diameter and color of the pole or standards' sounds like it might be Class 1, certainly if it was incorporated into the normal length of the pole. o Class 4 (Freestanding Structure) • This class seems to encompass a wide range of structures, some of which are much more obtrusive than others. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 7 of 11 o Class 5 (Temporary) The meaning of "such placement of a temporary Telecom Facility shall not exceed 1 year, consistent with Section 20.52.040" is less than clear since Telecom Facilities are not mentioned in Section 20.52.040. Does this mean that even though not mentioned there, the procedures of Section 20.52.040 with a time limit of less than 1 year? • C. Installations in the Public Right -of -Way. o "Any pedestal meter required for the purpose of providing electrical service power." • Has this exception been made obsolete by Southern California Edison's conversion to "SmartMeters" which do not need to be physically read by a technician? o "Any proposed installation in the public right -of -way shall comply with all requirements of the Americans with Disability Act (ADA), and all other laws, rules, and regulations." • Isn't this redundant with the catch -all clauses in Section 20.49.020 (General Provisions, paragraphs D and E)? • D. Collocation Installations o In my view this section should be discretionary rather than mandatory. That is, it should say "may be required to collocate' rather than "shall be required to collocate." There is no one - size -fits all solution. Ideally the desirability of collocation versus separate installations should be worked out during the public hearing, but the decision has to be made early in the approval process. o Condition Requiring Future Collocation • If the preceding section is mandatory, this seems redundant with it — that is all approvals would implicitly include this condition. 20.49.060 — General Development and Design Standards. • A. General Criteria. o "For an example, where a streetlight standard is replaced with a different streetlight standard to allow for the additional installation of Antennas, the primary use shall remain as a streetlight." • It is unclear if this is meant as a definition or a design directive. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 8 of 11 • The definition of "Wireless Tower" in Section 20.49.030 implies no size or amount of antennae can ever cause a streetlight to become a wireless tower? • Does this mean there is some threshold at which that would happen, and it is to be avoided? • If so, should it be elaborated in one of the listed standards? Or is it already implied in `Blending "? • Apparently this is meant to be read similarly to the explanation of Screening Standards in paragraph 20.49.060.F.3.c ( "compatible in scale and proportion to streetlights and traffic control standards and the poles on which they are mounted") but the tie -in is not immediately obvious to me. • B. Public View Protection. As previously indicated this is a major step back from the present code which protects both private and public views, and not just from the few (and somewhat arbitrarily located) starred spots on the General Plan map. o Although the Zoning Code generally shuns private view protection it is not unprecedented. For example commercial loading docks and roof - mounted equipment are supposed to be screened from view from adjacent residences. And more importantly, the telecom applicant is not normally a landowner restricted to construction on a particular parcel of property • C. Height o The reminders about other codes (such as Section 20.30.060.E and 4 U.S.C. § 1) are helpful, but probably redundant with the catch -all applicability of all other codes in Section 20.49.020 (General Provisions). o Maximum Height. • Since the definition of Telecom Facilities in Section 20.49.030 includes the whole shebang (including the antennas, the support structure to which they are attached and even the land on which it sits) the reference to "Telecom Facilities" at the start of each lettered paragraph is at best confusing. I think what is being regulated is the height at which antennas (rather than Telecom Facilities) can be installed. • Lettered paragraph "b" may need some words to clarify how it relates to paragraph "a" — which it is possibly meant to supersede? July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 9 of 11 • The references to 24 and 20 inches in lettered paragraph "c" are less than clear. They seem to be an attempt to describe the flagpole rather than the "facility," and I'm not sure how "at the top' is to be interpreted. My recollection is cellphone "flagpoles" frequently have an enlarged cylindrical section near the top (housing the antennas) with a small decorative element above that. o Over - Height Buildings or Structures • Stealth Telecom Facilities can evidently be of Class 1, 2 or 4? Exactly how that and "the type of installation" are to affect the review seems vague. o D. Setbacks • The reference to "installed on public property or private property' seems unnecessary. What other kinds of property are there? o E. Design Techniques. • This subsection may have absorbed the protections of private views in the existing code, but whether it is intended to include consideration of private views or not is unclear. o F. Screening Standards. • Class 3: • "No cables and mounting brackets or any other associated equipment or wires shall be visible from above, below or the side of the Antennas." o This sounds good, but may be unrealistic. I don't recall ever seeing an installation with visible antenna panels in which the mounting brackets and cables were not at least partially visible. • "Antenna installations on existing or replacement streetlight poles, traffic control standards, or Utility Poles shall be screened by means of canisters, radomes, shrouds other screening measures whenever Feasible.." o Large canisters and "radomes" added on top of streetlights and other poles are not necessarily less obtrusive or obnoxious than "exposed" antennas mounted flush to the pole. It is not at all obvious why they would be preferred. July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 10 of 11 20.49.070 — Permit Review Procedures. • A. Permit Required. o "Table 4 -1 Permit Requirements for Telecom Facilities" • The index to the existing Zoning Code indicates Title 20 already contains a "Table 4 -1 Animal- Keeping Standards" and a "Table 4 -2 Required Setbacks for Structures Housing Domestic Farm Animals." It would appear that if the proposed code is placed in Part 4 this table will need to be renumbered. • Note "a" where it says "depending on the type of installation and Antenna Class being proposed for the Collocation' is confusing. I thought a collocated installation was by definition Class 2. B. Application Submission Requirements for Telecom Facilities on City -owned or City -held Trust Properties. o It should be clearly stated that authorization by the written authorization from the City Manager does not guarantee that a lease for use of the property will ultimately be granted by the City Council. • H. Required Findings for Telecom Facilities o 1. General. • The term "review authority' is used frequently in the proposed code. This seems to be where it is defined. However it is defined by reference to Table 4 -1, and that table is less than clear as to who or what the review authority is in most cases. • The proposed findings are substantially different from the ones the City Council would currently have to make under Section 15.70.070.F.3. • The basic requirement that the facility is needed to provide service seems to be missing. Such a requirement is permitted by case law and needed to prevent an unnecessary proliferation of facilities. • The proposed findings seem to preclude placement in parks or on public facilities, since such an application would have to be denied if any other alternative is feasible. Since the City might want the revenue in preference to installation on a nearby private building, the logic behind this is unclear. 20.49.090 — Agreement for Use of City -Owned or City -Held Trust Property Although outside the scope of the proposed code, I believe, as previously stated, that there is a problem with the procedure of approving the leases formulated by the City Manager and City July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 11 of 11 Attorney for commercial use of public property as current described in Council Policy L -23 (The Siting of Wireless Telecommunications Equipment on City- Owned Land). The agreement is "approved" by lack of action on the part of the City Council, which I believe is inconsistent with both the City Charter and the Brown Act. In addition Policy L -23 will require revision because it currently refers to Chapter 15.70 (which is proposed to be repealed) and to provisions in Title 13 that were never implemented. 20.49.100 — Modification of Existing Telecom Facilities. The reference under the definition of "Substantially change" to February 22, 2012 seems oddly stated, and might seem to have the effect of making the following criteria inapplicable to a facility that did not exist on that date? 20.49.120 — Right to Review or Revoke Permit. o The transplanting of this section from Section 15.70.090 does not seem to have been entirely successful since it no longer explains all the circumstances under which the City reserves the right to review or revoke the permit. 20.49.130 — Removal of Telecom Facilities. o B. Abandonment. I have no problem with reducing the period from 180 days to 90 days, but the reason for doing this is not explained in the staff report. Omissions In addition to lack of clarity regarding the minimization of impacts on private properties, the proposed code omits important Submission Requirements currently found in Section 15.70.070. These included the justification for the project, maps (including ones illustrating current and proposed coverage), visual simulations (including ones showing impacts on nearby residences), emission data, wind load calculations and evidence of permission to use property. I don't know if some of this may be required for use permits in general, but much of it seems wireless- specific and it is very difficult to see how the reviewing authorities could make an intelligent decision about the application without this information. Finally, I think the proposed code would benefit from comparison with how wireless applications are handled by other California cities. I suspect that beyond the clearer definitions cited above, there are many concepts and specific provisions that could be usefully incorporated. Item 5c: Additional Material Received ealwa P C I A Planning 57mmission July 19, 2012 ^ —• July 19, 2012 VIA ELECTRONIC MAIL Newport Beach Planning Commission c/o Janet Johnson Brown, Associate Planner City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 jbrown @newportbeachca.gov Re: Proposed Amendments to Wireless Telecommunications Facilities Ordinance Dear Ms. Brown, PCIA —The Wireless Infrastructure Association ("PCIA" )l and the California Wireless Association ( "CaIWA ")' writes to provide comment on the City of Newport Beach's proposed amendment to the Newport Beach Municipal Code to update regulations regarding wireless telecommunications facilities in light of the scheduled public hearing on the matter before the Planning Commission on Thursday, July 19, 2012. Attached please find the proposed amendments marked with comments. PCIA and CaIWA respectfully request that Planning Commission defer action on this item until the industry has had an opportunity to sit down with staff and discuss the concerns reflected within this letter and in the attached mark -up. PCIA and CaIWA applaud the City of Newport Beach for recognizing that there have been numerous changes in Federal and State law regarding local regulation of wireless facilities, as well as a tremendous increase in the demand for wireless services that required the industry to change how it responds and keeps up with demand from its subscribers, especially in sophisticated communities like Newport Beach. We encourage the City to craft an ordinance that enables logical and intelligent deployment with an objective set of standards that comply with state and federal law and allows the timely provision of quality wireless service. To this end, in order to ensure that Newport Beach's efforts to modernize its wireless ordinance are as comprehensive as possible, PCIA and CaIWA offer the attached mark -up of the draft amendments. 'PCIA is the national trade association representing the wireless infrastructure industry. PCIA's members develop, own, manage, and operate towers, rooftop wireless sites, and other facilities for the provision of all types of wireless, broadcasting and telecommunications services. With a mandate to facilitate the deployment of wireless infrastructure, PCIA and its members partner with communities across the nation to effect solutions for wireless infrastructure deployment that are responsive to the unique sensitivities and concerns of these communities. 'CaIWA is a non -profit organization made up of volunteers who work in the wireless /telecommunications industry throughout California. Its goal is to raise awareness about the benefits of and to promote the wireless industry, to educate the public and political leaders on issues of importance to the wireless industry, and to cultivate working relationships within and between the industry, the public and political leaders. PCIA a calwa Despite the importance of wireless services and its potential for job creation, local review of the placement of wireless facilities remains a persistent barrier to the deployment of wireless infrastructure. For example, the proposed amendments to Newport Beach's Municipal Code could better facilitate the deployment of wireless infrastructure in order to bring wireless service to Newport Beach's residents. PCIA and CalWA hope to work together with the Planning Commission to find a solution for wireless infrastructure deployment that is responsive to the City of Newport Beach's needs and concerns. For this reason, PCIA and CalWA urge that Planning Commission defer action on this item to allow time to consider and discuss the industry's concerns. The Need for Wireless Infrastructure Wireless services, from basic voice communication to mobile broadband, enable communication, productivity, mobility, and public safety. Wireless infrastructure is the backbone of wireless networks; without it, wireless services cannot be delivered to users. Wireless infrastructure enables use of spectrum by providing the vital link between the end -user and the network. The strategic deployment of wireless infrastructure improves the efficient use of limited spectrum resources, which in turn improves the performance of wireless services. Wireless providers are currently undertaking a multi- faceted effort to deliver next- generation wireless services, such as 4G LTE, in addition to ensuring that current and next - generation networks have the capacity to handle the surge in traffic that comes with the increased adoption rates of smartphones, tablets and other data devices. Wireless networks must adapt to growing capacity demands due to an 1,800 percent increase in traffic on U.S. wireless networks in the last four years and a projected growth of eighteen times current levels of mobile data traffic in the next five years. Mobile Internet users are projected to outnumber wireline Internet users by 2015, when a majority of Americans will utilize a wireless device as their primary intemet access tool.5 This will result in two billion networked mobile devices by 2015.6 The need for rapid deployment extends beyond mere consumer convenience. More than 70 percent of all emergency calls are placed using a wireless device.7 The ability to access fire, rescue and police services may be significantly hindered without wireless infrastructure, especially for those relying on wireless as their sole form of voice communications. As noted by the Federal Communications Commission ( "FCC "), [T]he deployment of facilities without unreasonable delay is vital to promote public safety, including the availability of wireless 911, throughout the nation. The importance of wireless communications for public safety is critical, especially as consumers 'Mobile Future, 2011 Mobile Year In Review (Dec. 2011), available at http: / /mobilefuture.org /page /- /images /2011- MYIR.pdf. Quentin Hardy, The Explosion of Mobile Video, N.Y. Times, Feb. 14, 2012, available at http: // bits .blogs.nytimes.com /2012/02/14 /the- explosion -of- mobile- video /. s Hayley Tsukayama, IDC: Mobile Internet Users to Outnumber Wireline Users by 2015, Washington Post, Sept. 12, 2011, available at http : / /www.washingtonpost.com/blogs /post- tech/post/ide- mobile- intemet- users -to- outnumber- wireline- users -by- 2015 /2011 /09 /12 /gIQAkZP7MK blog.html ?wprss=post -tech. ' Mobile Future, 2011 Mobile Year In Review. 7 FCC.gov, Guide: Wireless 9 l 1 Services, available at http: / /www.fcc.gov /guides /wireless -91 I- services. PCIA a calwa increasingly rely upon their personal wireless service devices as their primary method of m ns comunicatio As NENA observes: Calls must be able to be made from as many locations as possible and dropped calls must be prevented. This is especially true for wireless 9 -1 -1 calls which must get through to the right Public Safety Answering Point ( "PSAP ") and must be as accurate as technically possible to ensure an effective response. Increased availability and reliability of commercial and public safety wireless service, along with improved 9 -1 -1 location accuracy, all depend on the presence of sufficient wireless towers.° For this reason, decisions on siting requests made by the personal wireless service industry were not intended by Congress to be subjected "to any but the generally applicable time frames for zoning decision[s].i10 Thus, the adoption of special procedural schemes unique to wireless siting requests should be avoided. The FCC Shotclock Declaratory Ruling and the California Permit Streamlining Act In addition to the provisions of Section 337(c)(7) of the Communications Act of 1934 referred to in the staff report, subsection (13)(ii) of that section contains another requirement that the City should keep in mind when crafting its new ordinance. That provision requires that a "local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request." The FCC recently adopted a Declaratory Ruling on November 18, 2009 under this subsection holding that "a `reasonable period of time' is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, also presumptively, 150 days to process all other applications."" Given the rate at which demand for advanced wireless services has been growing, and in particular the growth in the demand for bandwidth as a result of adoption of smart phones and wireless- enabled laptops and tablets, the need for speedy local approvals of proposed wireless deployments has become truly critical to providing the wireless services consumers demand. Indeed, the FCC's presumptive timeframe for action may be superfluous given that California law has, for decades, contained absolute deadlines by which action must be taken. As you are no doubt aware, the California Permit Streamlining Act imposes a 60 -day time limit for approving or denying a requested permit after a project has been determined to be categorically " Petition fa• Declaratory Ruling To Clartfy Provisions of Section 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 FCC Red 13994, 14021171 (2009) ( "Shot Clock Reding "), recon. denied, 25 FCC Red 11 157 (2010), of "d, City of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEXIS 1252 (5th Cir. 2012). 9 Shot Clock Ruling, at 36. 0 H.R. Conf. Rep. No. 104458. 104th Congress, 2nd Sess. 208 (1996). Shotclock Ruling. PCIAcalwa exempt from CEQAIZ or a negative declaration or mitigated negative declaration has been adopted. 13 The Wireless Provisions in Middle Class Tax Relief and Job Creation Act of 2012 Staff failed to mention the Middle Class Tax Relief and Job Creation Act of 2012, enacted with bipartisan support and signed into law by President Obama on February 22, 2012. One of the measures included in the Act was the creation of a nationwide interoperable broadband network for first responders. In addition to authorizing the FCC to allocate necessary spectrum for this new interoperable network, the Act also contained provisions designed to establish voluntary incentive auctions of wireless spectrum, which are expected to raise $15 billion over the next eleven years. Seven billion dollars of the auction proceeds have been allocated for public safety broadband network build out. The Act reflects an implicit acknowledgement that realizing the financial viability of the spectrum auctioned depends on the ease with which purchasers can deploy the infrastructure needed to utilize it. At the same tithe, it allays local concerns over the potential impact of the construction of new sites. In a carefully crafted attempt to address both industry and local concerns, Section 6409 of the Act streamlines, and thereby incentivizes the use of, modification of existing sites in lieu of new builds. Although the staff proposals reflect a similar recognition of the need for streamlined review of modifications, PCIA and CalWA provide herewith a detailed explanation of this recent law due to concerns that the definitions provided in the report fail to reflect those adopted and utilized by the FCC. Section 6409 of the Act requires state and local governments to approve an eligible facilities request for the modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. Section 6409 applies to "eligible facilities requests" for modification of existing wireless towers and base stations. The Act defines "eligible facilities request" as any request for modification of an existing wireless tower or base station that involves: Collocation of new transmission equipment; Removal of transmission equipment; or Replacement of transmission equipment. Many of the terms employed in the section are concepts that were hammered out in negotiations between local government and industry representatives in an agreement that was adopted by reference in regulations promulgated by the FCC. Thus, for example, "collocation" has been defined as "the mounting or installation of an antenna on an existing tower, building or structure for the pur�4 ose of transmitting and/or receiving radio frequency signals for communications purposes." "Gov. Code § 65950(a)(4). "Gov. Code § 65950(a)(3). 14 Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (2001), available at 47 C.F.R. Part 1, Appendix B ( "Collocation Agreement "). See also Petition for Declaratory Ruling To Clagr Provisions of Section 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 4 PCIA a calwa The same agreement also addressed the issue of what constitutes a substantial change in the size of a tower: • The mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10 %, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or • The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or • The mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or • The mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site. 15 In this agreement, a "tower" is defined as "any structure built for the sole or primary purpose of supporting FCC - licensed antennas and their associated facilities. 16 While the concept of a "base station" is not referenced in the agreement, the term has a long - established meaning consistently used throughout both FCC regulations and case law, namely a fixed location from which wireless signals are transmitted. For example, FCC regulations define a "base station" as "[a] station at a specified site authorized to communicate with mobile stations;" or "A land station in the land mobile service." 17 We urge the Planning Commission to use these well recognized definitions within its Ordinance. FCC Red 13994, 14021 1171 (2009) ( "Shot Clock Ruling), recon. denied, 25 FCC Red 11157 (2010), aQ'd, City of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEX1S 1252 (5th Cir. 2012). "Collocation Agreement, note, above. 61d. "See, e.g., 47 C.F.R. § §24.5, 90.7. PCIA Conclusion calwa Reliable wireless communications are no longer a luxury. Wireless facilities provide a platform for broadband accessibility, creating a link from the City of Newport Beach to the world through high -speed Internet access. The City of Newport Beach has an opportunity to facilitate expanded wireless coverage to its citizens, businesses, and first responders by moving forward with amending its code in consideration of the wireless infrastructure industries' suggestions provided herewith. PCIA and CalWA hope to participate in the ordinance revision process as it develops, if Planning Commission defers action on this item to consider the industry's concerns. We appreciate your support to further our mutual goal of implementing and deploying responsible and timely wireless infrastructure to serve the City of Newport Beach, CA. Sincerely, /s/ Julian Quattlebaum Co- Chair, Regulatory Committee California Wireless Association (CalWA) 800 S. Pacific Coast Hwy # 448 Redondo Beach, CA 90277 310- 356 -6950 jq @channellawgroup.com Sean Scully Co- Chair, Regulatory Committee California Wireless Association (CalWA) 800 S. Pacific Coast Hwy # 448 Redondo Beach, CA 90277 818 -426 -6028 permittech @verizon.net /s/ Kara Leibin Azocar Government Affairs Counsel PCIA —The Wireless Infrastructure Association 901 N. Washington St., Suite 600 Alexandria, VA 22314 703 -535 -7451 Kara.Azocar @pcia.com M EXHIBIT "A" 20.49.080 — 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 Emissio s Report 20.49.120 — Right to Review or Revoke Permit 20.49.130 — Removal of Telecom Facilities 20.49.010 — Purpose and Intent. A. Purpose. The purpose of this Chapter is to provide for wireless telecommunication facilities ('Telecom Facilities ") on public and private property consistent with federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating the impacts of such facilities. More specifically, the regulations contained herein are intended to: 1. Encourage the location of Antennas in non - residential areas. 2. Strongly encourage Collocation at new and existing Antenna sites. 3. Encourage Telecom Facilities to be located in areas where adverse impacts on the community and public views are minimized. 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. 20.49.020 — General Provisions. A. Applicability. 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. 1. Prior to construction of any Telecom Facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use Permit (CUP), or Limited Term Permit (LTP), depending on the proposed location and Antenna Classes, in accordance with Section 20.49.070 (Permit Review Procedures). CalWA Comment No. 2: This section needs to incorporate a reference to 20.49.100 where there Page 11 could be ministerial permits issued for modifications. Also CaIWA recommends a ministerial permit be an option for Class 1 and Class 2 facilities under the circumstance when the facilities are located in non - residential zones and are otherwise not visible. CaIWA Comment No. 1: Some Chapter 20.49 - Wireless Telecommunications Facilities recognition that this land use is in fact a "utility" (as defined In the Sections: States Constitution) and additional 20.49.010 — Purpose and Intent tolerance and balance similarly to 20.49.020 — General Provisions how other utilities are viewed aesthetically should be afforded this 20.49.030 — Definitions critical land use as well. This 20.49.040 — Available Technology "purpose" raises aesthetics above all 20.49.050 — Location Preferences other considerations unfairly as 20.49.060 — General Development and Design Standards compared to other utility land uses. 20.49.070 — Permit Review Procedures 20.49.080 — 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 Emissio s Report 20.49.120 — Right to Review or Revoke Permit 20.49.130 — Removal of Telecom Facilities 20.49.010 — Purpose and Intent. A. Purpose. The purpose of this Chapter is to provide for wireless telecommunication facilities ('Telecom Facilities ") on public and private property consistent with federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating the impacts of such facilities. More specifically, the regulations contained herein are intended to: 1. Encourage the location of Antennas in non - residential areas. 2. Strongly encourage Collocation at new and existing Antenna sites. 3. Encourage Telecom Facilities to be located in areas where adverse impacts on the community and public views are minimized. 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. 20.49.020 — General Provisions. A. Applicability. 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. 1. Prior to construction of any Telecom Facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use Permit (CUP), or Limited Term Permit (LTP), depending on the proposed location and Antenna Classes, in accordance with Section 20.49.070 (Permit Review Procedures). CalWA Comment No. 2: This section needs to incorporate a reference to 20.49.100 where there Page 11 could be ministerial permits issued for modifications. Also CaIWA recommends a ministerial permit be an option for Class 1 and Class 2 facilities under the circumstance when the facilities are located in non - residential zones and are otherwise not visible. 2. Applicants who obtain a MUP, CUP or LTP (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 Facility, consistent with Section 20.49.090 (Agreement for Use of City -owned 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. 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. 5. Systems installed or operated at the direction of the City or its contractor. 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, or for which the application for a proposed Telecom Facility is deemed complete prior to the effective date of this Chapter, 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. CaIWA Comment No. 3: Are legal nonconforming amortizations applicable under Page 12 any circumstances to WTF's that are classified as "Legal Nonconforming Facilities "? CaIWA Comment No. 4: The definition of "Base Station" should include the entire structure and antenna facilities as defined by the FCC. 20.49.030 — Definitions. For the purposes of this Chapter, the following definitions shall apply: 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. Antenna Array. Antenna Array means Antennas having transmission and /or reception elements extending in more than one direction, and directional Antennas mounted upon 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. Antenna Classes. Antenna Classes are Telecom Facilities and the attendant Support Equipment separated into distinct "antenna classes." I 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. 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 is not limited to City Hall, Police and Fire facilities, recreational facilities, parks, libraries, monuments, signs, streetlights and traffic control standards. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. 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 "hub" or "hotel" where the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. 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. Feasible. Feasible means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal and technological factors. 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. 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. Page � 3 CaIWA Comment No. S: This component of the definition is not clear as "Base Station" and "Suport Equipment" would seem to be inclusive of each other. Please clarify. 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. 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. 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. 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 cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters. Support Equipment does not include the Base Station, DAS, Antennas or the building or structure to which the Antennas are attached. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecom munication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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. Utility Pole. Utility Pole means a single freestanding pole used to support services provided by a public or private utility provider. Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or steel pole used to support electric transmission facilities. 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. I I CaIWA Comment No. 6: Overemphasis of "aesthetics ". More tolerance and balance should be afforded this land use in recognition of the critical infrastructure and "utility" that it is. 20.49.040 — Available Technology. All Telecom Facilities approved under this Chapter shall utilize the most efficient, diminutive, 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. 20.49.050 — Location Preferences. A. Preferred Locations. The following is the order of preference for the location and installation of Telecom Facilities, from highest priority location and technique to lowest. Antenna Classes are the Telecom Facilities and their attendant accessory/Support Equipment separated into the following distinct Antenna Classes based on observed aesthetic impacts, as follows: Class 1 (Camouflaged /Screened): A Telecom Facility with Antennas mounted on an existing or proposed non - residential building or other structure not primarily intended to be an antenna support structure. The Antennas, Base Station, and Support Equipment are fully screened so that they are not visible to the general public. Typical examples include: • Wall or roof mounted Antennas that are screened behind radio - frequency transparent, visually- opaque screen walls that match or complement existing exterior surfaces of the building or structure to which they are attached. CaIWA Comment • Antennas designed to be incorporated within an architectural feature of a building or No. 7: This structure such as a steeple, cross, cupola, sign, monument, clock tower or other additional architectural element. requirement is • not warranted Base Station equipment that is contained within an existing structure, or placed into a nor relavent to a new attached structure that matches or complements the existing P 9 exterior surfaces of Collocation. the building or structure Please remove. Class 2 (Collocation): A Telecom Facility with Antennas and /or Base Stations co- located on an approved existing Telecom Facility and mounted in the same manner with materially the same or improved screening, or the same camouflage design techniques as the approved or existing Telecom Facility. Class 2 Collocation Telecom Facilities also may incorporate flush - to -grade underground Base Station 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. Class 3 (Visible): A Telecom Facility with Antennas mounted on an existing non - residential building, structure, pole, light standard, Utility Tower, and/or Lattice Tower. The structure is treated with some camouflage design techniques, but the Antenna panels and some portions of the pole, light standards, Utility Tower, or Lattice Tower are still visible. Typical examples include: • Antennas mounted on the exterior of an existing building so that the panels are visible, but painted to match the color and texture of the building or structure. • Antennas flush- mounted atop an existing pole or light standard that are unscreened or un- camouflaged, or attached to an existing pole or light standard utilizing a cylindrical Antenna unit that replicates the diameter and color of the pole or standards. • Antenna panels installed on existing electrical or other Utility Towers, or existing Lattice Towers. CaIWA Comment No. 8: WTF mounted on existing utility infrastructure should be encourage and promoted via Class 1 designation. Page 15 CalWA Comment No. 9: This type of facility should be Class 1. Please reclassify as a facility that is within a rock or shrub type facility is very low profile and minimimally visible, if at all. CalWA Comme\No, 10: These types of facilities should be included 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. The Telecom Facility is designed to replicate a natural feature or is a Monopole or Lattice Tower. The Antennas are either unscreened and visible, or camouflaged /designed to blend in with their surroundings. Typical examples include: with Class 3 type facilities • as they are "stealthed/ camoflauged • and should be incentivised. Antennas mounted inside or behind elements that replicate natural features such as rocks and shrubbery and located in hillsides or other natural areas where the Telecom Facility blends into the surrounding vegetation or topography (e.g. false rocks or shrubbery). A Telecom Facility consisting of Antennas mounted on or inside a freestanding structure that uses camouflage to disguise the Antennas (e.g. monotree, flagpole, or other freestanding structure). A Telecom Facility consisting of Antennas on the exterior of a freestanding structure that is unscreened /un- camouflaged (e.g. Monopoles or Lattice Tower). Class 5 (Temporary): A Wireless Tower, Antennas and /or Base Station, and associated Support Equipment system that is a temporary Telecom Facility on a site until a permanent (separately approved) Telecom Facility to provide coverage for the same general area is operational but such placement of a temporary Telecom Facility shall not exceed 1 year, consistent with Section 20.52.040. A Wireless Tower, Antennas and /or Base Station, and associated Support Equipment system that is a temporary Telecom Facility located on a site in connection with a special event, as that term may be defined in Municipal Code Section 11.03.020 (General Provisions), may be allowed only upon approval of a Special Events Permit, as regulated by Chapter 11.03. Class 5 installations include but are not limited to equipment mounted on trailers, trucks, skids, or similar portable platforms. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: CalWA Comment No. 11: Facilities 1\1. should be permitted in 2. these zones if not utilized as 3. a residential use. C. CalWA Comment No. 12: Open space should be a permitted zone for this critical utility infrastructure. On properties zoned for single -unit or two -unit residential development, including equivalent PC District designation. On properties zoned for multi -unit residential development and mixed -use development consisting of four (4) dwelling units or less. 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. 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, and notwithstanding any provisions contained in Title 13 to the contrary, shall be subject to the following: 1. All Support Equipment shall be placed below grade in the public right -of -way where the existing utility services (e.g., telephone, power, cable TV) are located underground. Exception: Any pedestal meter required for the purpose of providing electrical service power for the proposed Telecom Facility may be allowed to be installed above ground in a public right -of -way. 2. Whenever Feasible, new Antennas proposed to be installed in public right -of -way shall be placed on existing or replacement utility structures, light standards, or other existing vertical structures. 3. Any proposed installation in the public right -of -way shall comply with all requirements of the Americans with Disability Act (ADA), and all other laws, rules, and regulations. Page 16 CalWA Comment No. 13: The "General Criteria" primarily focuses on "aesthetics" and weights that criteria above all other concerns. No other utility infrastructure must adhere to such unbalanced criteria and wireless infrastructure. CalWA requests that the City begin to look in a more balanced and tolerant manner towards this utility as is afforded all other utility infrastructure. D. Collocation Installations. 1. When Required. To limit the adverse visual effects of and proliferation of individual Telecom Facilities in the City, 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. Exception: If the reviewing authority determines, based on compelling evidence submitted by the applicant, that Collocation of one or more new Telecom Facilities within one thousand (1000) feet of an existing Telecom Facility is not Feasible, and all findings required to grant approval of a MUP, CUP or LTP for a Telecom Facility can be met, 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. 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 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 possible. 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 camouflage, and shall be compatible with existing architectural elements, building materials, other building characteristics, and the surrounding area. Where an existing structure is replaced to allow for the addition of a Telecom Facility, the replacement structure shall retain as its primary use and purpose that of the prior- existing structure. For an example, where a streetlight standard is replaced with a different streetlight standard to allow for the additional installation of Antennas, the primary use shall remain as a streetlight. 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 or LTP 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, screened or camouflaged 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. 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). Page 17 C. Height. 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 (AELUP) for John Wayne Airport and Airport Land Use Commission (ALUC) Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. 1. Maximum Height. Antennas shall be installed at the minimum height possible to provide 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. For ground- mounted Wireless Towers installed on public property or private property, unless the review authority determines a smaller setback would be appropriate based on the surrounding development or uses, the setback average service to the Telecom Operator's proposed service area. In any case, no Antenna or other telecom equipment or screening structure shall extend higher than the CalWA Comment No. following maximum height limits: 14: These types of facilities should be a. Telecom Facilities installed on existing streetlight standards, traffic control standards, permitted in Utility Poles, Utility Towers or other similar structures within the public right -of -way residential districts shall not exceed 35 feet in height above the finished grade. that are developed b. Telecom Facilities may be installed on existing Utility Poles or Utility Towers that non - residential land exceed 35 feet above the finished grade where the purposes of the existing Utility uses. 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 CalWA Comment maximum height of 35 feet in nonresidential districts only, and shall not exceed 24 No. 15: Additional inches in width at the base of the flagpole and also shall not exceed 20 inches in heights should be permitted up to 10 width at the top of the flagpole. As a condition of approval, flagpole sites shall above the comply with 4 U.S.C. § 1 et seq. ( the "U.S. Flag Code"). base height as d. Telecom Facilities may be installed on buildings or other structures to extend up to 5 additional height feet above the base height limit established in Part 2 (Zoning Districts, Allowable could result in Uses, and Zoning District Standards) for the zoning district in which the Telecom lesser overall Facility is located. facilities and will e. Applications for the installation of Telecom Facilities proposed to be greater than 5 allow for additional collocations further feet above the base height limit may be installed up to the maximum height limit for reducing the the zoning district in which the Telecom Facility is located in accordance with Section number of overall 20.30.060.0.2 (Height Limit Areas), subject to review and action by the Planning facilities needed in Commission. The Planning Commission may approve or conditionally approve a the future. CUP for a Telecom Facility to exceed the base height limit by more than 5 feet after making all of the required findings in Section 20.49.070.H (Permit Review Procedures). 2. Over - Height Buildings or Structures. Stealth Telecom Facilities may be installed within or on structures that are permitted to exceed the height limit for the zoning district in which the structure is located, either by right under Title 20 or which have received a discretionary approval, so long as the height of the structure is not being increased. The standard of review shall be based on the type of installation and Antenna Classes being used. 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. For ground- mounted Wireless Towers installed on public property or private property, unless the review authority determines a smaller setback would be appropriate based on the surrounding development or uses, the setback CaIWA Comment No. 17: This land use is by definition a "utility ". As critical "utility infrastructure" some tolerance of "aesthetics" associated with utility infrastructure needs to considered and afforded this land use as It is afforded other "utilities ". Over emphasis of "aesthetics ". E. CaIWA Comment No. 16: This is unecessary and could exclude many good opportunities for appropriate locations. This requirement should be removed. shall be the greater of: a) the required setback established by the development standards for the zoning district in which the Telecom Facility is proposed to be located; or b) 110% of the maximum height of the Wireless Tower including any Antenna or Antenna enclosures attached thereto. Design Techniques. Design techniques shall result in the installation of a Telecom Facility that is in scale with the surrounding area, hides 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 camouflage, disguise, or otherwise hide the Telecom Facility from view from surrounding uses. 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, camouflage, or hide the Telecom Facility. 4. Utilizing simulated natural features (trees, rocks, etc.) to screen, camouflage, 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 create greater visual impacts than the Telecom Facility itself. F. Screening Standards. Following is a non - exclusive list of potential design and screening techniques that should be considered based on the following Antenna Classes: CaIWA Comment No. 17: How is this section anticipated to be applied? Wholesale change out of the WTF would not be acceptable. Please clarify. 2. For Class 1 (Camouflaged /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. For Class 2 (Collocation) Antenna Installations: a. A Collocation installation shall use screening methods materially similar to those used on the existing Telecom Facility and shall not diminish the screening of the existing Telecom Facility. b. If determined necessary by the review authority, use of other improved and appropriate screening methods may be required to screen the Antennas, Base Station, and Support Equipment from public view. 3. For Class 3 (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 ..e. CalWA Comment No. 18A: The requirement for locating associated radio transmission / amplificaton equipment inside the streetlight pole or traffic control standard "without increasing the pole width or shall be mounted in a flush -to -grad enclosure adjacent to the base of the pole" is onerous and cost prohibitive. It is also unequitable treatment when compared to other utility infrastructure within the ROW. We request an option for above ground equipment be available. Antennas are mounted. No cables and mounting brackets or any other associated equipment or wires shall be visible from above, below or the side of the Antennas. 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. c. Antenna installations in the public right -of -way and /or on an existing or replacement streetlight pole or traffic control standard shall be limited to Antennas, Supporting Equipment, and cable components that are compatible in scale and proportion to CaIWA streetlights and traffic control standards and the poles on which they are mounted. All Comment No. transmission or amplification equipment such as remote radio units, tower mounted 18: If this amplifiers and surge suppressors shall be mounted inside the streetlight pole or traffic additional control standard without increasing the pole width or shall be mounted in a flush -to- screening is done this type grade enclosure adjacent to the base of the pole. of facility d. Antenna installations on existing or replacement streetlight poles, traffic control should be standards, or Utility Poles shall be screened by means of canisters, radomes, shrouds Class 1. other screening measures whenever Feasible, and treated with exterior coatings of a color and texture to match the existing pole. If Antennas are proposed to be installed CalWA Comment No. without screening, they shall be flush- mounted to the pole and shall be treated with 19: This should be a exterior coatings of a color and texture to match the existing pole. Class 1 type facility.. Antennas shall be mounted on existing poles wherever Feasible. If a new pole is proposed to replace the existing pole, the replacement pole shall be consistent with the \For size, shape, style and design of the existing pole, including any attached light arms. 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, CaIWA Comment No. or false shrubbery) shall be designed for and located in a setting that is compatible with 20: In industrial/ manufacturing zones the proposed screening method. Such installations shall be situated so as to utilize this design option is existing natural or manmade features including topography, vegetation, buildings, or appropriate and other structures to provide the greatest amount of visual screening. For false trees or helps reduce costs of shrubbery installations, all Antennas and Antenna supports shall be contained within the facilities for all. Also canopy of the tree design, and other vegetation comparable to that replicated in the in proximity to proposed screen structure shall be prevalent in the immediate vicinity of the antenna transmission lattice site, and the addition of new comparable living vegetation may be necessary to enhance towers similar lattice tower designs are the false tree or shrubbery screen structure. most appropriate. c. The installation of a new Monopole or Lattice Tower is prohibited unless the applicant by use of compelling evidence can show to the satisfaction of the review authority that higher priority locations or Stealth Facilities are either not available or are not Feasible. 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. Page I10 CalWA Comment No. 21: Need clarification on this Class? 6. Support Equipment. All Support Equipment associated with the operation of any Telecom Facility including but not limited to the Base Station shall be placed or mounted in the least visually obtrusive location possible, and shall be screened from view. The following is a non - exclusive list of potential screening techniques that may be utilized based on the type of installation: CaiwA Comment a. Building Mounted Facilities. For building or structure - mounted Antenna installations, No. 22: This is g not a feasible upport Equipment for the Telecom Facility may be located inside the building, in an option. Should be nderground vault, or on the roof of the building that the Telecom Facility is located on, removed. provided that both the equipment and screening materials are painted the color of the \and ing, roof, an surroundings. All screening materials for roof - mounted Telecom ities shall be of a quality and design compatible with the architecture, color, texture materials of the building to which it is mounted. If determined necessary by the w authority, screening to avoid adverse impacts to views from land or buildings at er elevations sha ll be required. b. Freest ding Facilities. For freestanding Telecom Facilities installations, not mounted on a buildin r structure, Support Equipment for the Telecom Facility: • Shall bl* visually screened by locating the Support Equipment in a fully enclosed c. Installations in a Public Right -of -Way. 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. 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 required 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 111 building or in an underground vault, or • Shall be screened in a security enclosure consisting of walls and /or landscaping CaIWA Comment No. 23: to effectively screen the Support Equipment at the time of installation. All wall It is not feasible to and landscaping materials shall be selected so that the resulting screening will provide above ground be visually integrated with the architecture and landscape architecture of the support equipment surroundings. within the pole without some reasonable • Screening enclosures may utilize graffiti- resistant and climb- resistant vinyl -clad increase in width being chain link with a "closed- mesh" design (i.e. one -inch gaps) or may consist of an permitted. This section alternate enclosure design approved by the review authority. In general, the should be redrafted. screening enclosure shall be made of non - reflective material and painted or camouflaged to blend with surrounding materials and colors. c. Installations in a Public Right -of -Way. 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. 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 required 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 111 I. Nonconformities. A proposed Telecom Facility shall not create any new or increased nonconformities 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. 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: CalWA Comment 1. Any missing, discolored, or damaged camouflage or screening shall be restored to its No. 25: For those original permitted condition. facilities that are 2. All graffiti on any components of the Telecom Facility shall be removed promptly in not visible and not accordance the Newport Beach Municipal Code. within a residential 3. All landscaping required for the Telecom Facility shall be maintained in a healthy zone nor within condition at all times, and shall be promptly replaced if dead or dying. r of a residential zone a 4. All Telecom Facilities shall be kept clean and free of litter. ministerial permit 5. All equipment cabinets shall display a legible contact number for reporting maintenance option to problems to the Facility Operator. incentivize and 6. If a flagpole is used for a Telecom Facility, flags shall be flown and shall be properly reduce processing maintained at all times. The use of the United States flag shall comply with the costs and time provisions of the U.S. Flag Code. should be an CaIWA Comment No. 24: More incentivized zoning option. t- principles should be incorporated into the "Permit 20.49.070 — Permit Review Procedures. Review Procedures ". The procedures and requirements for preparation, filing, and processing of a permit application for a Telecom Facility shall be as specified in Chapter 20.50 (Permit Application Filing and Processing) unless otherwise noted below. A. Permit Required. All applicants for Telecom Facilities shall apply for a MUP, CUP or LTP, from the Community Development Department, depending on the Antenna Class, height, and duration, as specified in the table below: CalWA Cc Nonreside ministerie the nonre Table 4 -1 Permit Reouirements for Telecom Facilities Page 112 ment No. ication ire a CUP. Location of Proposed Telecom Facili Located in a Located inside or Located inside or mment No. 25: For Nonresidential within 150 feet of any within 150 feet of ntial there should be a lesser District more than Open Space District any Residential I process to further insentivize sidential locations. 150 feet from a or Public Park or District or Residential (or Public Facility zoned Equivalent PC Equivalent PC) PR or PF District District or Open CalWA Co Space District or 26: No Coll Public Park or should req Public Facility zoned PR or PF Class 1 Antenna (a) MUP MUP MUP (Camouflaged/Screened) Class 2 Antenna (a) (b) MUP MUP CUP (Collocation) Class 3 Antenna (a) MUP MUP CUP Visible Page 112 ment No. ication ire a CUP. CalWA Comment No. 27: Should be CalWA Comment No. 28: For WTF located in allowed via MUP if within height limits of Residential Zones with non - residential land underlying zone and "stealthed ". uses, a MUP or ministerial permit should be \fforded if completely screened. W CalWA Comment No. 29: Is this for emergency facilities? Not clear. Antenna Class tion of Proposed Telecom Faitillily Class 4 Antenna (a) (c) MUP CUP CUP (Freestanding Structure Class 5 Antenna (a) (c) (d) LTP LTP LTP (Temporary) CaIWA Comment No. (a) 30: Has the City conducted Environmental Reviews on wireless facilities as a matter of routine or are (b) most facilities determined to be "Exempt" from the provisions of CEQA (Categorically). (c) CalWA �(cl) Comment No. 31: What is the purpose of this limitation? This B. Application Submission Requirements for Telecom Facilities on City -owned or City - excludes 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. 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 by greater than five (5) feet shall require review and action of a CUP by the Planning Commission. Pursuant to this provision, an application that would otherwise be subject to review by the Zoning Administrator would become subject to review by the Planning Commission. The Planning Commission may approve or conditionally approve a CUP, subject to the required findings in Subparagraph H, below. The review procedure for Collocated Telecom Facilities shall be consistent with the applicable review procedure as identified elsewhere in this table depending on the type of installation and Antenna Class being proposed for the Collocation, unless the Collocated Telecom Facility meets the requirements of California Government Code § 65850.6, or involves the Collocation of new transmission equipment and is consistent with the provisions in Section 20.49.100 (Modification of Existing Telecom Facilities). Antennas mounted on or within flagpoles, and temporary Telecom Facilities shall not be permitted on properties either used or zoned residentially. Temporary Telecom Facilities shall be subject to the standard of review for an LTP, pursuant to Section 20.52.040 (Limited Term Permits). numerous appropriate land use locations that are zoned C. residential but may have other land uses, le. churches whichD provide excellent locations in proximity to residential usesE. where these facilities are I extremely necessary. 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. 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. 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 a permitted use not requiring a discretionary permit provided the underlying Telecom Facility was granted a discretionary permit and was subject to either an environmental impact report, mitigated negative declaration or negative declaration. If such a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6, it shall be reviewed pursuant the review procedures contained in Section 20.49.070 (Permit Review Procedures). F. 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. CalWA Comment No. 32: Has it been the practice to conduct a Pa 13 Environmental Reviews pursuant to CEQA for facilities in Newport g Beach? If so then would this State Code section be invoked? CalWA Comment No. 33: This requirement is inconsistent with State and Federal Collocation laws. Some recognition of the Class 1 type facility and collocations should be included herein. Also further incentivization of process would be the ministerial permit for Class 1 and collocations that are consistent with State Code section, 65850.6. 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. . G. Public Notice and Public Hearing Requirements. An application for a Telecom Facility shall require a public notice, and a public hearing shall be conducted, in compliance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all Telecom Facilities: 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 by more than 5 feet only after making each of the following findings in addition to the required findings above, as well CalWA Comment the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use No. 35: Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Additional Permits): height should be permitted as a. The increased height will not result in undesirable or abrupt scale changes or required. An addiitonal 5' relationships being created between the proposed Telecom Facility and existing only is too adjacent developments or public spaces. onerous and will b. Establishment of the Telecom Facility at the requested height is necessary to provide result in many service. more facilties being required20.49.080 — 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). Page 114 1. General. The review authority indicated in Table 4 -1 may approve or conditionally approve an application for a Telecom Facility only after first finding each of the required CalWA Comment findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and No. 34: These Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits), and criteria are each of the following: extremely subjective and . The proposed Telecom Facility is visually compatible with the surrounding not consider th neighborhood. technical requirements o. \re. The proposed Telecom Facility complies with the technology, height, location and design the land use. standards, as provided for in this Chapter. These criteria a An alternative site(s) located further from a Residential District, Public Park or Public unbalanced with Facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the overemphasis on proposed site. "aesthetics ". 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 by more than 5 feet only after making each of the following findings in addition to the required findings above, as well CalWA Comment the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use No. 35: Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Additional Permits): height should be permitted as a. The increased height will not result in undesirable or abrupt scale changes or required. An addiitonal 5' relationships being created between the proposed Telecom Facility and existing only is too adjacent developments or public spaces. onerous and will b. Establishment of the Telecom Facility at the requested height is necessary to provide result in many service. more facilties being required20.49.080 — 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). Page 114 CalWA Comment No. 36: CalWA requests that this process be concurrent rather than linear. 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 or LTP. Upon the issuance of a MUP, CUP or LTP, as required, and upon entering into an agreement, the applicant shall obtain any and all other necessary permits, including, encroachment permits for work to be completed in the public right -of -way, 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. Notwithstanding any provision in this Chapter of the Zoning Code, a request for a modification of an existing Wireless Tower or Base Station that involves: CalWA Comment No. 37: What is an example of a "Telecom Facility that does not qualify as a b. The removal of existing transmission equipment; or Wireless Tower or Base Station ". Needs c. The replacement of existing transmission equipment clarification. shall be subject to a ministerial review and approval without the processing of a discretionary permit provided that such modification does not substantially change any of the physical dimensions of such Wireless Tower or Base Station from the dimensions approved as part of the original discretionary permit for the Wireless Tower or Base Station. However, any modification to a Wireless Tower or Base Station which substantially changes the physical dimensions of either the Wireless Tower or Base Station, and any other modification to a Telecom Facility that does not qualify as a Wireless Tower or Base Station, shall be subject to the permits and authorizations required by this Chapter. a. The Collocation of new transmission equipment; "Substantially Change the Physical Dimensions" means any of the following, and refers to a single change, or a series of changes over time (whether made by the same or different entities) viewed against the City approval(s) for the Wireless Tower or Base Station as existing on February 22, 2012, that individually or cumulatively have any of the effects described below: a. Changing any physical dimension of the Wireless Tower or Base Station in a manner that creates a violation of any safety code adopted by the City, or by the state or federal government. b. Changing the physical dimension of a Stealth Facility on a Wireless Tower, where the changes would be inconsistent with the design of the Stealth Facility, or make the Wireless Tower more visible. c. Changing the physical dimension would require work that would intrude upon the public right -of -way, or any environmentally sensitive area. d. Increasing or decreasing by five percent (5 %) or more any of the following: CalWA Comment No. 38: Nearly any additional facilities incorporated onto an Ca WA Comment No. 39: This threshold existing facility could be interpreted to "make the Wireless Tower more visible ". is vague and unclear. Delete or clarify. This needs to be clarified and relaxed to accomodate collocations without being Page 15 determined to crossing this "threshold CalWA Comment No. 40: This should be increased to 10 %. CaIWA Comment No. 41: These additional constraints are confusing and unclear. Delete or clarify. A simple 10% increase in volume is simple enough. • The height, width, or depth in any direction of any portion of the Wireless Tower or Base Station; or • The area required for structures required to support the Wireless Tower, including but not limited to guy wires as approved and constructed through the discretionary permit process Provided that in no event shall the height is increased to exceed the maximum height permitted in the applicable zoning district under the City's regulations. e. Increasing by more than five percent (5 %) any of the height, width, depth or area encompassed within any structure or object enclosing the Wireless Tower, such as a fence or line of shrubs or bushes. f. Increasing any of an existing Antenna Array's depth, circumference, or horizontal radius from the Wireless Tower in any direction by more than five percent (5 %). g. Adding more than two Antenna Arrays to an existing Wireless Tower, or adding Antenna Arrays that, if the Antenna Array were an existing Antenna Array, would be of such depth, circumference or radius as to fall outside of item f (above), unless such Antenna Arrays were approved pursuant to Government Code Section 65850.6. h. The mounting of the new or replacement transmission equipment would involve installing new equipment cabinet(s) not permitted under the initial approval and that will not fit within the existing enclosure for the Wireless Tower or Base Station, or would require installation of a new cabinet or enclosure, excluding new equipment and cabinets that will be installed underground. (Note: the proposed installation of a power back -up system [i.e., gas /diesel generator, fuel cell, battery system, etc.] is not Collocation of new transmission equipment.) i. Any increase in any physical dimension of a Wireless Tower or Base Station or any equipment related thereto or any enclosure thereof at a Legal Nonconforming Facility. Each application submitted under this section for a modification to an existing Wireless Tower or Base Station 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 Wireless Tower as originally constructed, if available; a current photograph of the existing Wireless Tower and /or Base Station; and, a graphic depiction of the Wireless Tower and /or Base Station 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 to be performed will not trigger discretionary review under this section. Any permit issued will be conditioned, and may be revoked, and the Telecom Facility 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 triggered a discretionary review. 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 Page 116 CaIWA Comment No. 42: CaMA has worked with jurisdictions across the State. It is our experience that when additional testing is required it is so far below allowable limits as set by the FCC that Is to be unwarranted. Please delete this requirement as it adds additional burdens and expenses that do not yeild meaningful information. 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 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 Page 117 finding of abandonment, the City shall provide notice to the Telecom Operator last known 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. Removal by City. 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 the 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 Section D. Page 118 CR OWN VIA US MAIL AND E-MAIL Janet Johnson Brown. Associate Planner City of Newport Beach 1� 3300 Newport Blvd. Newport Beach. CA 9266' ) Crown Castle Tel 909-593-9700 2125 Wright Avenue, Suite C-9 Fax 909-593-9774 La Verne, CA 91750 www,crowncastle,com August 28.2012 Re: City of NeAport Beach Wlrc1e_-,, Telecommunications Facilities Ordinance (City of Newport Beach Municipal Code. � 20.49.010. et sea.) Dear Ms. Bro-,vn: Crown Castle hereby submits its comments on the proposed amendments to the City of Newport Beach ("City") Wireless Telecommunications Facilities Ordinance (Newport Beach Municipal Code ("NBMC­), § 20.49.010, et seq.) ("Wireless Ordinance"). Crown Castle requests that the City reject the proposed Wireless Ordinance in its current form. and work with industry representatives to craft a revised ordinance consistent with state and federal law. 1. Introduction. The California Public Utility Commission has issued to Crown Castle a "certificate of public convenience and necessity which identifies the company as a telephone corporation under California law and more specifically as a'-competitive local exchange carrier" ("CLEC") and a .,public utility." Telephone corporations have a special status under state law (see, e.g., Pub. Util. Code § 216.) and are authorized to ­erect poles, posts, piers, or abutments* In the public right of way ("ROW-) subject only to local municipal control over the "time, place and manner" of access to the ROW. (Id. at §§ 1001, 7901; 7901.1; see fi'illianls Communication v. City o � f Riverside (2003) 114 Cal.App. 4th 6=12.648 [upon obtaining a CPCN, a telephone corporation has -the right to use the public highways to install [its] facilities,"].) Crown Castle develops wireless telecommunications infrastructure in the ROW. Its systems. known as "distributed antenna systems,'* or "DAS." consist of several small-scale antenna -nodes" connected by optic fiber to a central hub. Each node receives optic signal from the hub and converts that signal into radio frequency (RF) signals for use by users in the area. Among other things. DAS is employed for wireless broadband. Wireless broadband is proving transformative on a global scale. As smartphones and tablets proliferate.. data demand is leadin- to a critical deficit in wireless spectrum. requiring more wireless antennas and infrastructure. According to a2011 report, wireless data traffic was 110 percent higher in201 I City of Nek,,Tort Beach August 2 8. 27 0 12 Page 2 than in the last half of 2010. Similarly. AT&T reports that its wireless data volumes ha ve increased 30-fold since the introduction of the iPhone. 1 Adding to the mix, 25 percent of all American homes are now wireless only.` and -wireless data traffic is expected to grow by a factor of'20 between 2010 and -2015.3 DAS can provide the critical network capacity to address such demand into the 21 st Century. Crown Castle's representatives were in attendance at the July 19, 2012, Planning Commission hearing-j, and more recently at the July 25, 1012 Stakeholder Meeting., where the Wireless Ordinance was discussed. This letter summarizes Crown Castle's comments concerning the Wireless Ordinance. 2. Applicable Legal Principles. A. State Law. State law. including Public Utilities Code section 7901 (-Section 7910"). governs the permitting of wireless telecommunications facilities in the ROW. Under Section 7901 Crown Castle qualifies as a "telephone corporation" with a "vested right" to occupy the ROW throughout the state. That vested rig =ht supersedes local franchise requirements and is guaranteed 0 se requiremen by both the state and federal constitutions. (J-Yilliams Communications v. 0tv ofRii�erside, supra. 114 Cal.App.4th at p. 648. see also. Petaluma v. Pacific Tel. & Tel. Co. (1955) 44 Cal.2d 284- 288-289 [statewide franchise of Section 7901 is a -vested right"; no local franchise is necessary to enter municipal streets]; Counly of L. A. v. Soulhern C'al. Tel. Co. (1948) 32 Cal.2d 378, 384 [same principle cited]; Postal Tel. Cable Co. v. Railroad Coin, (1927) 200 Cal. 46 ). 472 ["[t]he rights acquired by ... the provisions of the section. are vested rights which the constitutions. both state and federal, protect."].) The rights afforded by Section 7901 are a matter of -statew-ide concern" that supersede _- and therefore obviate the need for -- a municipal -rant of entry to the ROW. (City Of Petal uma v, Pac. TeL and Tel. Co., supra, 44 Cal.2d at pp. 287-289; see also I-Villiams Communication v. Citij qfRiverside. sul7ra. 114 Cal.AppAth at p. 653 ["the construction and maintenance of telephone lines in the streets and other public places within the City is today a matter of state concern and not a municipal affair.-].) The Legislature enacted S13622 1. now codified as Public Utilities Code section 790 1. 1. in 1994 to regulate construction activities in the ROW.4 Section 7901.1 (Section 7901.1). provides, in relevant part, -that municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, hig ,hxv,ays, and waterxv,ays are accessed.- (Pub. tail. Code, § 790 1. 1.) Section 7901.1 goes on to state that "[t]he control, to be reasonable., shall, at a minimum. be applied to all entities in an equivalent manner.'" (Ibid) Government Code section 50030 also applies to telephone corporations seeking to install their facilities in the ROW. That section provides that a city may not require payment for entry FNecutive Office of the President Council of Economic Advisors (White House, Feb. 2012) at-1-6. U.S. Department of Health and Human Ser---rices (April 2011). M. CAL. PUR. LITIL Cotx: § 79011.1 (West supp. 1997): see Analysis of SB 621, Cal. Sen. Rules Comm., Office of Senate Floor Analyses (S. 1994-95 Reg. Sess.) City of Newport Beach August 28, 2012 Pape 3 into its ROW. Specifically. a city cannot impose an exaction that exceeds the "reasonable costs of providing the service for which the fee is charged." (f-Villiams Communications i, Citv Qf Riverside, supra, 114 Cal.App.4tb at p. 648.) The above statutes and case law give rise to four principles that should inform the City's -, of Crown Castle's DA S facilities: deliberations about the siting (1) Crown Castle has vested right to utilize the City's ROW, (2) The City's permitting requirements for Crown Castle must be imposed in a non- discriminatory manner and applied equally to "all entities" using the Public ways of the City (not just applied equally among all telephone corporations; (3) Crown Castle need not obtain a local "franchise" to enter the City's ROW,- and (4) The City is prohibited from imposing any fee to use the ROW. beyond what is required to address the "reasonable costs of providing the service for which the fee is charged" (i.e., the City cannot assess a general revenue fee for use the ROW). B. Federal Law. The City also is governed by the federal Telecommunications Act of 1996, Pub. L. No 104-104. 110 Stat. 56 (codified as amend in scattered sections of U.S.C.. Tabs 15. 18, 47) ("Telecom Act"). When enacting the Telecom Act., Congress expressed its intent "to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies." (I 10 Stat. at 56.) As one court noted: Congress enacted the TCA to promote competition and higher quality in telecommunications services and to encourage the rapid deployment of new telecommunications technologies. Congress intended to promote a national cellular net -Nrork and to secure lower prices and better service for consumers by opening all telecommunications markets to competition. ya — I (T--illobile Central, LLCv. Unified Government ndolfe- 528 F.Supp. 2d 11-8. 1146-47 (D. Kan. 2007). One way in which the Telecom Act accomplishes these goals is by reducing impediments imposed by local governments upon the installation of -wireless communications T facilities. such as antenna facilities. (47 U . S. C. § 332(c)(7)(A).) Section 3 )32(c)(7)(B) provides the limitations on the general authority reserved to state I and local governments. Those limitations are set forth as follows: (1) State and local governments may not unreasonably discriminate among providers of functionally equivalent services (§ 332(c)(7)(Ba)(I)). (2) State and local governments may not regulate the placement- construction or modification of wireless service facilities in a manner that prohibits. or has the effect of prohibiting. the provision of personal wireless services (better known as the ­effective prohibition clause") (§ 3 ) 32(c)(7)(13)(1)(11)). City of Newport Beach August 28. 20 12 Page 4 (3 ) State and local governments must act on requests for authorization to construct or modify wireless service facilities within a reasonable period of time (§ 332(c)(7)(13)(ii)). ' (4) Any decision by state or local government to deny a request for construction or modification of personal wireless service facilities 'must be in writing and supported by substantial evidence contained in a written record (§ 332(c)(7)(B)(iil)). (5) Finally, no state or local government or instrumentality thereof may regulate the placement, construction or modification of personal wireless service facilities on the basis of the perceived environmental efTects of radio frequency emissions to the extent that such facilities comply with federal communications commission's regulations concerning such emissions (§ 3 )3 ).21(c)(7)(B)(iv)). 3. specific Comments. In light of the above principles. Crown Castle submits the following comments concerning specific provisions of the Ordinance: C (a) Sections 20.49.020, 20.49.070 - Discretionary Approval: The Ordinance sujects ROW facilities to the same discretionary entitlement process (a CUP, MUP. or LTP) that governs wireless telecommunications facilities on private property under the City's zoning ("Telecom Facilities"). The process purports to grant a right of entry to the ROW in exchange for the satisfaction of conditions of approval. By failing to provide for an exception for CLECs seeking to utilize the City ROW, the Ordinance conflicts with time-honored state law confirming the existence of a vested right to enter and use the ROW without having to obtain a local franchise. (IVilliams Communications v. CRy QfRiversicle. supra, 114 Cal.AppAth at p. 648, see also If-'eslern 1-Inion Telegraph Co. v. Hopkins (1911) 160 Cal. 106 [observing "that the state in its sovereign capacity has the original right to control all public streets and highway =s" and that the section 536 franchise "included the right to such exclusive occupation by the company of portions of the streets as is maintained for the purpose of its system, leaving nothing in that behalf to be granted by the municipality. "].) Since the Ordinance provides no exemption for CLECs seeking to invoke Section 7901 franchise rights, these sections conflict with state law. (b) Section 20.49.030 — Definitions: The definitions section defines "public rights- of-way" to mean only the `'surface`" of any street or public vvay. By restricting the definition of ROW only to the surface of the street. the Wireless Ordinance precludes extension of the ROW to spaces occupied by poles and other above - ground facilities, thereby conflicting with Section 7901. which extends ROW franchise rights to the ability to construct .'poles, posts, piers, or 5 This provision has been interpreted by the Federal Communications Commission ("FCC-) to require local MOvernmental agencies to act on wireless telecommunications siting applications within 150 days, or 90 days for collocation facilities. See Declaratory Ruling to Clarify= Provisions of Section 332(c)(7)(13) to Ensure Timely Siting Reviev, and to Preempt Under Section 253 State and Local Ordinances that ClassiA All Wireless Siting Proposals as Requiring a Variance (Federal Communications Commission. Nov. 18. 2009) WTbocket No. 08-1657 City of Nevport Beach August 22 8. 2012) Page 5 abutments for supporting the insulators. wires. and other necessary fixtures." (Pub. Util. Code, § 7901.} (c) Section 20.49.040- Available Technology: The Wireless Ordinance provides that Telecom Facilities "shall utilize the most efficient, diminutive and least obtrusive available technology _ ." The mandatory language of the provision could be read to hold all wireless carriers and infrastructure developers to impossible technological standards that are outside the purview of local government to impose. Many design considerations must be taken into account in constructing a wireless network-, including the need for coverage, capacity, and the ability to incorporate technological changes and upgrades. Such decisions are the prerogative of telephone corporations governed by the regulations of the California Public Utilities Commission. not the City under the proposed Ordinance. (d) Section 20.49.050: Location Preferences: DAS facilities generally utilize exiting vertical elements in the ROW, such as utility poles and streetlights, The "location preferences" relegate such facilities to '-Class type facilities, thereby rendering them more difficult to approve or subjecting them to greater scrutiny. By imposing more stringent controls over such facilities, the Wireless Ordinance Purports to vest greater discretion in the decision- maker to deny access to the ROW. thereby asserting greater control over areas outside the ordinary zoning authority of the local agency. This section is in direct conflict with the statewide franchise rights granted to Crown Castle under § 7901, as discussed above. (e) Section 20.49.050(B): Prohibited Zones: The Wireless Ordinance imposes an outright ban on all Telecom Facilities located in zoning districts for single-unit or two unit residences, all multi-unit and mixed-use developments consisting of fewer than five units and all open-space zoning districts. The prohibited zones provision contains no exception for the ROW and no exception for technical constraints imposed by RF coverage needs. Such zoning restrictions therefore conflict with Section 7901 and 'could give rise to a prohibition of service under section 332(c)(7)(13)(i)(11) of the Telecom Act. (f) Section 20.49.050(C): Installations in the Public Right-of-Way: This section incorporates, in toto. Chapter 13.20 of the NBMC, which prohibits new poles in underground districts (see NBMC. § 1 31.20.03 )O(A)) and thereby forces CLECs, such as Crown Castle, to use existing vertical elements, such as city-owned poles (subjecting them to a 51,500 per-month fee). Phis section purports to prohibit installation of new poles in the ROW, in direct conflict with Section 7901. hisofar as the provision requires collocation on existing city streetlights, thereby subjecting the applicant to the City's license fee provisions. the section violates Government Code section 50030. (g) Section 20.49.060: General Development and Design Standards: The Wireless Ordinance places a heavy emphasis on aesthetic criteria. Other public utilities utilizing the ROW are not subject to such stringent approval criteria. This section therefore conflicts with Section 7901.1, which requires that all ­entities­ in the ROW be treated in an equal manner. City of Newport Beach August 'IS. 2012 Page 6 (h) Section 20.49.060(C): Height: This section would impose a 35-foot height limitations on facilities located on existino vertical elements in the ROW, The provision features no technical feasibility exception, nor is there any determination or policy statement concerning how such a limitation is legitimately based on the ``time. place and manner" controls allowed to local governmental agencies by Section 7901. Accordingly. the provision conflicts with Section 7901. In addition. this section also fails under application of the "all entities" standard of § 7901.1. (i) Section 20.49,060(D): Setba&s: The Ordinance also incorporates the standard setback restrictions imposed by the applicable zoning district. Such exclusions may constitute an outright prohibition, in violation violation of Section 1 7901. of section 3322(c)(7)(B)(i)(11). as well as a ban on ROB O entry. in 6) Section 20.49.060(F)(3)(c): Screening Standards: This section requires all ancillary Dry equipment to be located within the pole "without increasing the pole width" or located underground. Such a requirement is onerous and cost-prohibitive, if not impossible, to meet. At a minimum. a technical feasibility exception should be incorporated into this section. (k,) Section 20.49.090: City-Owned Pro erty: As noted above, proposed P 3 amendments incorporate Chapter 13.26 of the NBMC, which prohibits new -poles in underg,rounding districts (see NBMC, § 13.20.030(A)) and thereby forces CLECs, such as Crown Castle, to use existing vertical elements. such Z, as city-owned poles (subjecting them to a $1.500 a month fee). This section, in combination with Section 20.49.050(C). could result in situations where the applicant is forced onto City-owned vertical elements. requiring the Cite - owned to the pay the City's license fees, in violation of Government Code section 50030. Crown Castle reserves its rights Linder federal and state law. including Government Code Section 65009. to challenge the Ordinance on the above grounds or additional grout-ids not specifically raised. 4. Conclusion, The proposed amendments to the Wireless Ordinance, as currently drafted, do not take account of telephone corporations' rights under Section 7901. Instead of providing for a more limited form of local review over ROW facilities that would be consistent with the City's limited authority to impose "time, place, and inanner" rules governing in an equivalent manner "all entities— access to the public ,vay. the proposed amendments endments do the opposite: they impose a second tier of requirements. above those already in place for private property sitinuL_ s. (See, e.g.. NBMC, § 20.49.05003).) At a minimum. Crown Castle would like to see an exception from the discretionary use permit requirement for ­Telecom Facilities" located in the ROW, with appropriate time, place, and manner controls embodied in a ministerial design review process. Because of the reasons stated in this letter, Crown Castle asks that the City reject this proposed ordinance. City of Ne�vport Beach August'.) 8, 2012 Page 7 We appreciate the City's consideration of the matters contained in this letter. We will be present at the September 6. 2012- Planning Commission meeting and, in the meantime. are on hand to answer any questions N ou may have or to work with the City Planning Commission and Staff to address the concerns herein. Very truly yours, ,I Dan Schweizer Government Relations Counsel Crown Castle NG'Wlest Inc. MWS:mws 323037 I ADDITIONAL MATERIALS RECEIVED Wireless Telecommunications Facilities Ordinance Code Amendment No. 2012-004 N 0. r J O• � �� L1 4� Planning Commission Study Session September 6, 2012 STAFF PRESENTATION ■ I, lire Existing Ordinance Adopted in 2002 Comprehensive update Update to reflect changes in law lo Intended to balance needs of community by: Providing for increasing demand for wireless networks Mitigating the impacts of future telecom facilities Planning Commission Hearing on 7/19/2012 Written comments received from 4 parties oglo6l2oi2 Community Development Department - Planning Division lire Commission requested: Study session Additional outreach with telecom industry and interested parties Stakeholder meeting conducted on 7 /25 /2012 oglo6l2oi2 Community Development Department - Planning Division • da VE M • • M i. Discretionary Permit Process Comment • Provide for administrative approval • Limit discretionary process ■ Response /Recommendation Administrative approval of screened facilities without public notice or stealth Zoning Administrator review for most facilities Planning Commission review for highly visible facilities located near residences og /o6 /201a Community Development Department - Planning Division • Ab & � 2k' XTITOrs 2. Legal Nonconforming Facilities Comment z Will nonconforming facilities be required to change or be eliminated Response /Recommendation • Existing, lawfully established facilities may continue • New or modified facilities must comply • Revise draft ordinance to enhance clarity og/o6 /201a Community Development Department - Planning Division • Ab 3. Definitions Comment Confusing & kr • • s M rim on Response /Recommendation r Clarify definitions Base station, public right -of -way, support equipment, wireless tower, and listed antenna support structures og /o6 /2012 Community Development Department - Planning Division Dmments & Responses 9 4. Technology requirements Comment "...the most efficient, diminutive and least obtrusive technology..." Response /Recommendation Revise draft ordinance to remove "least efficient" or "diminutive" and stress "least obtrusive" og /o612012 Community Development Department - Planning Division • L, Ab & kr • • s 5. Location Preferences - Comment Proposed classification system is confusing Pr Response /Recommendation m Clarify classification system g Eliminate "Collocation" class Provide "Public Right -of -Way" class og /o6 /2012 Community Development Department - Planning Division 8 L ;\ • da G��' •• s 6. Prohibited Locations Comment Industry wants access to all zones, including residential Response /Recommendation Access to multi - family zones improved Access to single- and two - family zone areas provided within the public right -of -way (PROW) No change to draft ordinance recommended oglo6l2012 Community Development Department - Planning Division 0 da \E w \ I O 1 A 7. Installations in the Public Right -of -Way Comment Draft ordinance too limiting on use of PROW Underground vaults for support equipment infeasible f Response /Recommendation City controls time, place and manner of use of the PROW — proposed process is reasonable Underground vaults feasible, Title 3.3 does provide for flexibility Revise draft ordinance to eliminate conflicting or duplication og /o6 /2012 Community Development Department - Planning Division • da VE M • • M 8. General Development and Design Standards �. Comment Screening is burdensome and is unfair treatment considering no screening of Edison facilities R, Response /Recommendation Screening of telecom facilities is supported by applicable law and case law No change to draft ordinance recommended oglo6h012 Community Development Department - Planning Division • 9. Height da Comment 6�S' •O Taller facilities requested & Variance process difficult m Response /Recommendation Draft ordinance treats telecom facilities similar to other structures Clarify provisions but no change to proposed height standards og /o6 /2012 Community Development Department - Planning Division • Ab kV & • • M io. Setback Standards Comment Proposed "fall zone" setback equal to 3.3.o% height is excessive and unnecessary Response /Recommendation Staff agrees, eliminate proposed additional setback og /o6 /2012 Community Development Department - Planning Division L • Ab VE M • • M ii. Screening Standards - Comment Restrictive, duplicative and flexibility needed Pr Response /Recommendation Revise draft ordinance to reflect changes in antenna classes (Collocation & PROW) Revise to allow exceptions when requirements are infeasible og /o6 /201a Community Development Department - Planning Division i • da VE M • • M iz. Permit Review Procedures Comment Review procedures burdensome Elimination of application submittal requirements E Response /Recommendation Provide administrative approval for Class i (screened /stealth) Submittal requirements specified by CD Director within application consistent with Zoning Code og /o6 /2012 Community Development Department - Planning Division Ab :E:r- •l 0 i.`t: 13. License Agreements for City -Owned Property Comment Streamline entitlement process Fee could violate State law Response /Recommendation Concurrent processing should be allowed Established fee is within City's right to regulate time, place and manner of use of PROW og /o6 /201a Community Development Department - Planning Division ,r, 14. Modification of existing facilities Comment Draft complicated F Zo% should be threshold for administrative approval Response /Recommendation Simplify draft 5% threshold based upon community sensitivity to height & desire to protect views og /o6 /201a Community Development Department - Planning Division • Ab kr & : XTITOM i5. Radio Frequency (RF) Emissions Reporting Comment ■ FCC oversight sufficient, ordinance requirement is burdensome Response /Recommendation Verification cannot be burdensome No change to requirement og /o6 /zoia Community Development Department - Planning Division I Provide administrative approval for Class i facilities (screened /stealth) Eliminate "co- location" antenna class E Create "public right -of -way" antenna class Reduce /eliminate complicating definitions o9/o6/201, Community Development Department - Planning Division -- Limit Planning Commission review to most visually obtrusive proposals r Eliminate "Fall Zone" setback proposal Revise draft to simplify and clarify oglo6lzoia Community Development Department - Planning Division il Staff to revise ordinance Provide revised draft in advance of meetings or hearings Additional stakeholder meeting Return to Planning Commission —date TBD 07/13/2012 Community Development Department - Planning Division ext Steps Staff to revise ordinance Provide revised draft in advance of meetings or hearings Additional stakeholder meeting Return to Planning Commission —date TBD 07/13/2012 Community Development Department - Planning Division For more information contact: James Campbell, Principal Planner 949 -644 -3210 jcampbelI@newportbeachca.gov www.newportbeachca.gov Item 0.1 a: Additional Materials Received Study Session - Planning Commission 9 -6 -12 PA2012 -057 Comments for September 6, 2012 Planning Commission Study Session regarding Wireless Ordinance The following comments are on the staff regarding the Wireless Telecommunications Facilities Ordinance (PA2012 -057) / Code Amendment No. 2012 -004 as presented to the Newport Beach Planning Commission as Agenda Item 1 at its September 6, 2012 meeting. The comments were prepared by Jim Mosher ( iimmosher(cDvahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548 -6229) , and are a mix of what may seem major and minor points. Additional Background Information In addition to my previous comments reproduced on pages 38 -48 of the staff report, I would like the Planning Commission to be aware of the following e-mail message sent, at her request, to Janet Johnson Brown (and copied to Jim Campbell) on August 3, following the July 25, 2012 "stakeholders" meeting described near the bottom of page 1 of the staff report: Janet (& Jim), Sorry to be so slow in getting this to you, but to follow up on our brief conversation after the July 25 wireless "stakeholders" meeting, with reference to the new Wireless Communication Facilities regulations in the City of Oceanside Local Coastal Program considered by the California Coastal Commission as Item 8a at their July 11, 2012 meeting (see complete text in the CCC staff report: W8a- 7- 2012.pdf, pages 23 -42): http: / /documents.coastal.ca.ciov /reports /2012/7/wBa- 7- 2012.pdf the features I saw that seemed particularly innovative and useful to CNB included: 1. Approval of telecom permit requires findings of a verifiable deficiency in existing coverage and that the means proposed to correct the deficiency are the least intrusive possible (Section 3907.A). This by now time - honored standard is, I think, no longer as clearly articulated in our own proposed code. Note also that although the regulation of applications to use the Oceanside public rights -of -way of way are rather vague (Section 3910.A), each encroachment permit ultimately requires the same findings to be made by the City Council (Section 39103). 2. To accommodate changing technology, Oceanside approvals are limited to 10 years with a possibility of three 2 -year administrative extensions (maximum of 16 years total) after which re- application is required (Section 3915.13). 3. As with the CNB proposal, upon adoption of the new code, existing facilities that would not comply with the new standards become legally non - conforming, but in Oceanside they are NOT allowed to continue indefinitely simply by staying in compliance with the original code. Anything other than routine maintenance of existing operational equipment triggers a re- evaluation of the facility under the new code (Section 3916). A fairly complete re- evaluation can also be triggered, at the September 6, 2012 Wireless Ordinance comments by Jim Mosher Page 2 of 3 planner's discretion, even when sites built under the new code are modified (Section 3917). 4. The Application Submittal Requirements in Section 3906 also seem pretty thorough. As best I can tell the similar detailed submittal requirements in our current CNB telecom code were inadvertently omitted from the proposal submitted to the Planning Commission. 5. Finally, Oceanside did not seem to feel any need to single out DAS facilities for special treatment (Section 3919). I will try to submit more detailed comments on the current CNB proposal next week. Yours, Jim Mosher Although other commitments prevented me from submitting the promised more detailed follow - up, I continue to feel these comments remain relevant and that the Oceanside ideas could be usefully incorporated into our proposed ordinance. Subsequent to this, Costa Mesa introduced at its August 21, 2012 meeting (agenda item PH -2) an ordinance regarding Wireless Facilities in the Public Right -of -Way, which was adopted just two days ago, and also contains interesting provisions. Comments on the Staff Report As a Newport Beach citizen I am pleased to see that City staff has not caved in to most of the demands presented by the industry representatives. I feel, however, that the proposed ordinance still needs considerable more work. Because of the extreme lateness of this submission I will just comment briefly on a few of the specific recommendations listed on pages 2 -6 of the staff report: Item 1 (Discretionary Permit Process): Without an extremely precise definition of what falls in "Class 1," 1 think the suggestion to allow them to be "administratively approved without providing notice to the public" is a very poor one. Even if the decision is "administrative" the absence of public notice means the public has no practical ability to appeal if they have reason to believe the administrative decision was incorrect. In my experience the Zoning Administrator is not overburdened, and considers considerably more minor matters. Nor is it an onerous burden on the applicant. In fact, a Zoning Administrator hearing took place simultaneously with the Telecom Stakeholders meeting on July 25th and two matters were disposed of in a total of 5 minutes. September 6, 2012 Wireless Ordinance comments by Jim Mosher Page 3 of 3 Item 2. (Legal Nonconforming facilities): I find the recommendation hard to follow, but I think changing technology means that all wireless permits should be subject to sunsetting provisions (as in the Oceanside and Costa Mesa codes referenced above), when legally non - conforming facilities are upgraded they should be required to come into conformance with the current codes, not the local regulations in effect at the time of their initial approval (as I believe the proposed code reads). Item 6. (Location Preferences, Prohibited Locations): I may be missing something, but I don't see the "Planning Commission review at public hearings for exceptions to location standards' that the report suggests is in the proposed code. Item 12. (Permit Review Procedures): Again, I do not think any telecom applications should be exempted from public notice. Item 13. (License Agreements for City -Owned Property): I feel it is very important that the public have a voice in the use of public property. Although somewhat outside the scope of the Study Session, City Charter Section 421 currently ensures that by restricting the authority to bind the City to contracts to the City Council — which in turn can act only at a publicly noticed meeting. A proposed "update" to the Charter on this November's ballot would overturn that longstanding protection by giving the Council the power to allow City staff to decide what public property it is appropriate to lease out for private commercial use, presumably without any public notice or input. I view that as a very bad change. Additional Comment I am very disappointed that staff has not seen fit to retain the restrictions and discretion found in our existing Wireless Code regarding the siting of telecom facilities that impact private views, or otherwise detrimentally impact private property (please see page 3 of my earlier comments as reproduced on page 40 of the 79 page Study Session staff report). I hope the Commission will ask for those provisions to be kept. NEWPORT BEACH PLANNING COMMISSION STUDY SESSION MINUTES 09/06/2012 NEWPORT BEACH PLANNING COMMISSION MINUTES Council Chambers — 3300 Newport Boulevard Thursday, September 6, 2012 STUDY SESSION MEETING 5:00 p.m. CALL TO ORDER - The meeting was called to order at 5:00 p.m. A. ROLL CALL PRESENT: Amen, Hillgren, Kramer, Myers, Tucker ABSENT (Excused): Brown (arrived at 5:15 p.m.), Toerge Staff Present: Kimberly Brandt, Community Development Director; Brenda Wisneski, Deputy Community Development Director; Leonie Mulvihill, Assistant City Attorney; James Campbell, Principal Planner B. CURRENT BUSINESS ITEM NO. 1 Update to the City's Wireless Telecommunications Facilities Ordinance (PA2012 -057) Code Amendment No. CA2012 -004 is an amendment to the Newport Beach Municipal Code (NBMC) to update regulations regarding wireless telecommunication facilities (telecom facilities) on public or private properties. Current regulations contained in Chapter 15.70 (Wireless Telecommunications Facilities) are proposed to be updated and incorporated within Title 20 (Planning and Zoning) of the NBMC, and Chapter 15.70 would be rescinded in its entirety. Principal Planner Campbell provided a PowerPoint presentation addressing adoption of the existing ordinance, changes in law, previous consideration by the Planning Commission and request for a study session, a previous stakeholder meeting and details of the report. Mr. Campbell noted comments received and stated the intent was to provide an administrative approval class for screened facilities and a streamlined permitting process. He discussed a comment regarding legal, non- conforming facilities. He stated that existing, legally operating facilities would be allowed to continue unchanged and new facilities must comply with the new ordinance and the revised ordinance would include increased clarity. Mr. Campbell discussed staffs recommendation to modify the proposed new antenna classes and definitions to ensure there would be no conflicts between definitions and other ordinance provisions with a proposed new draft. Mr. Campbell noted technology requirements, stressing the importance of using the "least obtrusive" technology and that the intent of the ordinance is to provide a review process so that facilities are not visually obtrusive and that they provide coverage that the providers need for the community. He addressed location preferences, classifications and eliminating collocation as a class of facilities as well as creating a public right -of -way class. In addition, he discussed prohibited locations, multi - family zones, installations in the public right -of -way, undergrounding vaults, control of public rights -of -way, providing flexibility, general development and design standards, facility heights and related variances, setback standards including the elimination of the proposed "fall zone" setback, public review procedures, application submittal requirements, City license agreements and modifications of existing facilities. Page 1 of 5 NEWPORT BEACH PLANNING COMMISSION STUDY SESSION MINUTES 09/0612012 Mr. Campbell stated that staff believes that a revised draft ordinance as outlined in the report would be consistent with State, federal, and case law. He discussed radio frequency emissions and FCC oversight and summarized staffs recommendations. He discussed next steps including returning to the Planning Commission with a final draft at an upcoming meeting after interested parties have an opportunity to review the revised draft. Commissioner Brown arrived at this juncture (5:15 p.m.). The Commission discussed the number and description of the proposed antenna classes, Planning Commission jurisdiction and a desire to have the Commission only act on telecom facilities as an appeal authority. Assistant City Attorney Leonie Mulvihill reported that one of the major changes being considered is to move regulations into the Zoning Code as land -use issues rather than going straight before Council. In doing so, the Commission would need to accept the appeal process that is in place. Commissioner Tucker commented positively on assigning jurisdiction to someone other than the Planning Commission and that the Commission handles issues when they are being appealed. Discussion followed regarding this being a land -use issue. Community Development Director Kimberly Brandt noted that what staff is trying to accomplish is to establish a tiered -level of review and that when there is staff -level approval, no public notice is involved. She added that going through the Zoning Administrator is a noticed, public hearing process. The Zoning Administrator has the option of referring matters to the Planning Commission if it should be found appropriate to do so. In some instances it could save time in processing and if appealed, it will lengthen the process and increase costs. The Zoning Administrator review and subsequent decision could be appealed to the Planning Commission. She added that if staff were to establish part of the Zoning Code under a Planning Commission level of review that might be a preference in adoption of the ordinance because it would save money in time in processing an application. Commissioner Tucker felt that the body of expertise would be under the Zoning Administrator level. He suggested working on the issue to avoid lengthening the process. He indicated agreement with the appeal process. Commissioner Ameri commented on the projected percentage of applications that would be processed administratively, by the Zoning Administrator and the Planning Commission. He felt that highly controversial /visible matters should go before the Planning Commission. Commissioner Brown commented on the ordinance applying to infrastructure changes with regards to wireless communications facilities. He wondered how often providers apply for infrastructure changes in equipment. Mr. Campbell reported that the City does not contract for the service to be provided, but that they are private companies that come forward to propose facilities within public or private properties or a public right -of -way. Ms. Mulvihill affirmed that the service providers are private companies and that as technology advances and demands change, the companies react to the market and determine when to deploy or revamp technology. The City serves the need and regulates use of property and use of rights -of -way. Page 2 of 5 NEWPORT BEACH PLANNING COMMISSION STUDY SESSION MINUTES 09/0612012 Commissioner Myers indicated that the Planning Commission should be the "court of last resort" and that the ordinance should create an environment where citizens are better served. Mr. Campbell stated that staff believes that with a properly structured ordinance, it can provide a streamlined process and provide better access for telecom providers. Assistant City Attorney Mulvihill indicated that the point of the ordinance is that it does not inhibit or preclude provisions of wireless communications services. The City will look to industry representatives to best provide the services desired by the community and that there is a balance between their being able to provide service and being able to provide service as they wish. Staff has attempted to provide a tiered review to facilitate the process. In response to an inquiry from the Commission regarding the creation of more or less regulation through the proposed ordinance, Mr. Campbell indicated that the amount of regulation really isn't changing but the revised draft as recommended is intended to be simpler and create an administrative class for easier and faster processing. Interested parties were invited to address the Commission on this matter. Julian Quattlebaum, Chairman of the Regulatory Committee of the California Wireless Association, felt that three minutes would not provide ample time for comments. Vice Chair Hillgren allowed him ten minutes for his presentation. He commended staffs efforts, provided a brief background and commented on the legal background of the regulation. Mr. Quattlebaum reported that there is a separate scheme for regulation of wireless sites for regular carriers by direction of the FCC to local jurisdictions. He stated there is no need to "strike a balance" between the interests of the community and the interests of the industry because the industry serves the community and serves as a proxy for residents. He noted that new installations are needed because people are demanding those services and he addressed a public safety need and noted there is no conflict between the community and industry interests. He reported that the role of the City is not purely a zoning role because it does not take into account the cost of compliance. He urged that the ordinance include some reference to the financial burden on the members of the industry and ultimately on their customers. Mr. Quattlebaum commented on the approach taken by staff to promote the least intrusive approach to wireless sighting and felt that it is not balanced. The industry will strive for a "reasonably unobtrusive" site and understands the needs of the community. He addressed new Federal law regarding approval of co- locations and base stations. He felt the ordinance does not address the latter and stated that he has submitted written comments to staff. He asked why facilities in residential areas would be prohibited if they were completely invisible noting that this is where the demand exists. In response to Commissioner Tucker's inquiry, Mr. Quattlebaum indicated that he felt a provider should be able to go anywhere he /she needs to install a wireless facility and where they feel there is a need. Discussion followed regarding licensing fees for facilities proposed on City property and it needing to be cost- based. Ms. Mulvihill explained the licensing fee is only for use of public property and indicated disagreement with Mr. Quattlebaum's comments regarding the fees. Page 3 of 5 NEWPORT BEACH PLANNING COMMISSION STUDY SESSION MINUTES 09/0612012 Jim Mosher indicated that this topic is not before the Commission because Council is overburdened with these types of applications. He indicated his belief that the intent is to increase public awareness through public noticing. He disagreed with creating a class that would not require any public notice or input. He felt that comparisons with how other cities regulate wireless facilities would be beneficial and advocates for establishing a "sunset" clause where existing facilities are removed or are brought into conformance in the future. He opined that having a right to do something does not mean that the right cannot be regulated. Carol Tagayun, AT &T Representative, commended staff for their efforts in addressing the matter, indicated the organization's eagerness to work with the City and expressed the importance of wireless services to the community. She reported that detailed comments will be submitted to the City next week and encouraged the Commission to keep those comments in mind as it proceeds with final decisions. Susie O'Boyle , NexT G Networks, now Crown Castle, expressed appreciation to the Commission for considering the item and agreed with having public rights -of -way considered as a separate classification, in and of itself. She addressed previous comments and noted that future comments will be presented. There being no others wishing to address the Commission, Vice Chair Hillgren closed public comments for this item. Vice Chair Hillgren provided a summary of the issues presented and indicated he would like to have a sense of the quantity of applications being processed at each level and what the various classifications might look like. He also suggested the following: 1. Commission recognizes these utilities provide necessary/desired services in our community and with appropriate guidelines can /should be processed in an effiicientleffective manner for all parties (city and applicants) with a minimum of bureaucracy and a reduction in regulations whenever possible. 2. Commission believes with an appropriate zoning code the staff should be able to efficiently deal with the majority of all applications 3. After the planning commission has held appropriate hearings on the new code, the commission should be involved only " as a last resort" in the event of appeals or highly unusual circumstances 4. in order to facilitate the commission's future consideration of the issue, it requests that staff provide the following: a. A summary of the number of applications for each proposed class over the past few years b. Photographic examples to help clarify what each class looks like so commission can better understand /consider public visibility issues c. A summary of the current, proposed and potential costs resulting from the new code — both in terms of city fees and cost of compliance for screening etc. 5. Commission looks to staff to provide a schedule for proceeding with any necessary future study sessions and final public hearings so this can be moved forward. Commissioner Ameri felt it was important to discuss locations within public rights -of -way and stated concern regarding objections to undergrounding certain facilities by the various agencies. Vice Chair Hillgren commented on the need for antennas to be above - ground and to be functional. Page 4 of 5 NEWPORT BEACH PLANNING COMMISSION STUDY SESSION MINUTES 09/06/2012 Commissioner Tucker suggested that those who want to have input into the text of the ordinance provide exact language to staff for consideration. He agreed with the Planning Commission having jurisdiction on specific, critical issues that are on appeal. Commissioner Brown indicated the importance of meeting the needs of the community. Commissioner Myers suggested that an additional study session may be in order relative to public and private property installations, given the growth of wireless devices as communication. Commissioner Kramer stated agreement with previous comments and added clarification of the term "unobtrusive" needs to be expanded. Ms. Brandt recommended allowing staff to consider comments provided at this time, prepare a draft to respond to comments and incorporate the suggested changes while allowing time to the Commission and the public to review it prior to returning to a public setting. X17 L�Z�i9uti't;VW111 None D. ADJOURNMENT There being no further business to come before the Planning Commission, the meeting was adjourned at 6:10 p.m. The agenda for the Regular Meeting was posted on August 31, 2012, at 2:45 p.m. on the City Hall Bulletin Board located outside of the City of Newport Beach Administration Building. Page 5 of 5 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT September 19, 2013 — Study Session Agenda Item No. 3 SUBJECT: Wireless Telecommunications Facilities Ordinance (PA2012 -057) • Code Amendment No. CA2012 -004 PLANNER: James Campbell, Principal Planner (949) 644 -3210, icampbell(cDnewportbeachca.gov PROJECT SUMMARY An amendment to the Newport Beach Municipal Code ( "NBMC ") to update regulations regarding wireless telecommunication facilities ( "Telecom Facilities "). Regulations currently contained in Chapter 15.70 would be updated and relocated to Title 20 (Planning and Zoning) and Chapter 15.70 would be rescinded in its entirety. RECOMMENDED ACTION Review and comment on the proposed draft ordinance. DISCUSSION The Telecommunications (Telecom) Ordinance was adopted by City Council in October 2002, codifying the regulations and design standards for telecom facilities within the City. At the time the telecom ordinance was adopted, state and federal case law suggested cities were somewhat limited in how telecom facilities could be regulated. However, more recent case law favors more appropriate local control to ensure the compatibility of these facilities with surrounding uses, similar to the manner in which other land uses are reviewed. Additionally, staff identified several issues based upon its experiences implementing the current ordinance that could be addressed by the update. The City Council initiated the amendment process in March 2012. Staff then prepared a comprehensive update of the existing Wireless Telecommunications Facilities Ordinance ('Telecom Ordinance "). In summary, the existing Telecom Ordinance (Chapter 15 -70 would be updated in its entirety and relocated to the Zoning Code (Title 20). The item was introduced to the Planning Commission in July 2012, and was continued to allow for an expanded dialog with the telecommunications industry. After meeting with industry representatives in July 2012, staff returned to the Planning Commission in September 2012, where the Commission held a study session. A copy of the agenda packet and approved minutes for the September 6, 2012, study session can be found at the City's website at the following web address: http: / /ecros. newportbeachca .gov /WebIBrowse.aspx ?startid= 321452 &cnb= PlanningCommis sionMeetings &dbid =0 Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 19, 2013 — Study Session Page 2 The current draft ordinance (Attachment PC 1) was distributed to interested stakeholders, including several industry representatives, in June 2013. The draft ordinance remains a work in progress. Since the last draft, staff has modified the overall structure of the ordinance, making an underline /strikeout version extremely confusing to read. Additional refinements will be proposed based upon further input from the Commission, public, and City staff. The following discussion summarizes various issues raised, direction, and in some cases additional suggested changes. Staff also received several comments letters on the draft ordinance that are attached (Attachment PC 2). 1. Discretionary Permit Process [Sections 20.49.020 and 20.49.070] Telecom industry representatives requested an administrative process and limited use of discretionary applications. At the prior study session, the Planning Commission agreed and also suggested that when discretionary review would be required, the Zoning Administrator would be the appropriate review authority for simpler requests and that the Planning Commission would only review the most visible proposals. One purpose of the proposed ordinance is to provide a review process and public notice of proposed facilities through the existing land use entitlement process. Staff believes that the discretionary process is appropriate for visible facilities whether on public or private property or within the public right -of -way. Additionally, staff believes the discretionary process is a reasonable exercise of the City's right to control the time, place, and manner Telecom Facilities are established within the public right -of -way. To address the concern that the discretionary process is applied too broadly, staff modified the draft ordinance such that stealth /screened facilities located in allowed zones on private property and on public property be administratively approved without providing notice to the public. All other facilities would require a Minor Use Permit (MUP), Conditional Use Permit (CUP), or Limited Term Permit (LTP). 2. Legal Nonconforming Facilities [Section 20.49.020 (F)] Industry representatives were concerned that existing facilities would be required to either be changed or phased out in the future. The draft ordinance provides for the maintenance and continuation of existing facilities that were lawfully constructed but would be considered nonconforming because they would not comply with the provisions of the proposed ordinance. These legal nonconforming facilities would not be required to be modified or amortized. Future facilities proposed or the future modification of existing facilities would be required to comply with the adopted Telecom Ordinance. 3. Definitions [Section 20.49.030] There were comments regarding the need to improve the clarity of definitions. The establishment of appropriate antenna classifications was one area in need of clarification. The prior draft had descriptions of Antenna Classes in a subsection that established priority 2 Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 19, 2013 — Study Session Page 3 locations. Staff has relocated the descriptions of the proposed Antenna Classes to the subsection providing definitions. Please also note that the antenna classifications have changed from the prior draft, which is discussed below. 4. Technology Requirements [Formerly Section 20.49.040] Comments were received indicating that the use of, "...the most efficient, diminutive and least obtrusive technology..." is inappropriate and could theoretically be used to discriminate among carriers based upon their technology. The current ordinance in effect provides this policy language; however, the key factor is that a new facility be unobtrusive. Staff has modified the draft to stress that new facilities be designed to be as unobtrusive as possible. The modified section is now located in section 20.49.010, subsection C. The draft ordinance also includes language in indicating that the Telecom Ordinance cannot be applied in a manner that as to unreasonably discriminate among providers of functionally equivalent services. 5. Location Preferences /Antenna Classifications [Section 20.49.050] The proposed classification system with the prior draft ordinance was confusing and the revised draft ordinance would establish five telecom facility classifications: 1. Class 1 (Stealth /Screened) 2. Class 2 (Visible) 3. Class 3 (Public Right -of -Way Installations) 4. Class 4 (Freestanding Structure) 5. Class 5 (Temporary) The revised draft ordinance indicates a hierarchy that was originally based upon the current ordinance and previous draft. With the revised classification system above, staff believes the hierarchy should be modified as Class 3 and Class 5 do not seem to be more desirable than any other installation when all facilities must be designed or located to be the least visually unobtrusive. Additionally, there may be a circumstance where a Class 3 facility may be a better option than a Class 2. If a hierarchy is retained, it recommends that it be Class 1, Class 2, and then Class 4. 6. Location Preferences, Prohibited Locations [Section 20.49.050 (13)] Industry representatives have indicated a need to access all zones including all residential areas. The current ordinance does not allow Telecom Facilities to be installed on residential lots (including residential portions of Planned Communities or Specific Plans) or in passive open space zones except under very limited circumstances. Common area or non- residential lots within residential zones, multi - family buildings, and collocated installations on existing utility towers in utility easements within passive open space zones are the only exceptions and they currently require City Council approval. The proposed ordinance: 1) maintains the same prohibited locations; 2) it provides for Planning Commission review at F Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 19, 2013 — Study Session Page 4 public hearings for exceptions to height standards; and 3) it provides access to low- density residential areas within the public right -of -way provided they meet applicable design standards. The revised draft does contain a typographical error in that it lists streetlights as prohibited locations. Staff intended to prohibit telecom facilities on traffic control standards not streetlights. This error will necessitate other changes for internal consistency. 7. Location Preferences, Installations in the Public Right -of -Way [Section 20.49.050 (C)] Industry representatives contend that this section includes unreasonable limitations on their use of the public right -of -way. The draft ordinance requires compliance with Title 13 (Streets and Highways) and proposed facilities must also comply with Chapter 15.32 (Undergrounding Utilities) of the Municipal Code. The City controls the time, place, and manner in which the public right -of -way is accessed. Antennas can be installed on existing vertical poles; however, new poles within underground districts may not permissible pursuant to provisions of Title 13 and Chapter 15.32 of the Municipal Code. Support equipment, with the exception of pedestal meters, may be required to be located underground in areas where existing utilities are underground and Title 13 also requires new support equipment to be placed in underground vaults. Staff believes that the existing provisions of Title 13 and Chapter 15.32 are consistent with State law. 8. General Development and Design Standards [Section 20.49.060] The emphasis on making Telecom Facilities as inconspicuous as possible has been the basic goal of the Telecom Ordinance currently in effect. This section provides screening methods for each Antenna Class and it addresses public view protection, support equipment, and maintenance among other issues. Staff believes the standards are appropriate; however, staff does recommend the removal of the term, 'To the greatest extent feasible" from the general criteria provisions as it would weaken the requirement to design Telecom Facilities to minimize visual impacts. 9. Height [Section 20.49.060 (C)] The telecom industry almost universally wants taller facilities to provide better coverage. Additionally, the industry does not want to be subject to a Variance process if there is a need for a facility taller than allowed. The ordinance currently in effect allows Telecom Facilities on private property to be no taller than the upper height limit (e.g., 35 feet in the 26/35 -foot height limitation zone). Telecom Facilities proposed within the public right -of -way on streetlights or other structures are limited to 35 feet and antennas proposed on existing power transmission lines that are taller than 35 feet cannot be taller than the existing pole. The City Council can authorize an additional 15 feet without a public hearing and if there is a need for a facility taller, the current code does not provide a process for deviation. The proposed draft ordinance would change the height requirements stated above by allowing Telecom Facilities to be 5 feet above the base height limit (e.g., 26 feet in the 26/35 4 Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 19, 2013 — Study Session Page 5 foot height limitation zone + 5 feet = 31 feet). This standard treats Telecom Facilities similar to how sloped roofs, elevator shafts, and screened rooftop mechanical equipment are allowed to exceed the based height limit. Discretionary review would be required for a proposal above this standard up to the upper height limit (e.g., 35 feet in the 26/35 foot height limitation zone). A Variance would be required for facilities proposed to exceed the upper height limit. 10. Setback Standards [Section 20.49.060 (D)] The prior draft included an additional setback distance of 110 percent of the facility's height as a "fall zone" setback. Staff recommended its elimination at the prior study session and with the Planning Commission's concurrence, it was removed from the current draft. 11. Screening Standards [Section 20.49.060 (F)] This subsection provides standards for screening antennas and support equipment for the five proposed antenna classes. This section was modified from the prior draft ordinance to reflect the changes in proposed antenna classifications. 12. Permit Review Procedures [Section 20.49.070] Past comments suggested that the review process was burdensome and the Commission suggested that the process expand the use of administrative approvals and make many Telecom applications subject to review by the Zoning Administrator rather than the Planning Commission. The current draft ordinance contains Table 4 -1 that identifies which approval or permit application is required for each Antenna Class while introducing a 150 foot proximity standard. The entries for Class 2 and Class 4 facilities are complicated given an attempt to reflect currently prohibited zones. 1. Class 1 facilities would be allowed administratively provided the facilities meet applicable location and design standards. 2. Class 2 facilities should have a more simplified approach where a CUP would only be required when a facility is proposed within a specified distance of residential uses or all Class 2 facilities might only require a MUP. 3. Class 3 facilities would require a MUP and fall under the jurisdiction of the Zoning Administrator. Additionally, since Class 3 facilities are in the public right -of -way, the Public Works Department would review the proposals for consistency with Title 13 and to ensure appropriate control of the time, place, and manner of use of the right - of -way. Staff would process required license agreements and encroachment permits or encroachment agreements for approved facilities. 4. Class 4 facilities would require a CUP to be reviewed by the Planning Commission unless it was proposed within 150 feet of a residential district where a MUP would be required, which would be reviewed by the Zoning Administrator. Staff recommends this provision be reversed or that all new freestanding structures require CUPs. 5 Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 19, 2013 — Study Session Page 6 5. Class 5 facilities are temporary and would require an LTP and also fall under the jurisdiction of the Zoning Administrator. Lastly, the revised draft ordinance has been updated to remove several internal inconsistencies. 13. License Agreements for City -Owned Property [Section 20.49.090] A license agreement for the use of City owned structures or property is required by the current Telecom Ordinance. The requirement would remain with the proposed update and the license agreement could be reviewed concurrently with the review of the Telecom Facility. 14. Modification of existing facilities [Section 20.49.100] This section is entirely new and it was drafted in response to 2012 federal regulations. Federal law prohibits a state or local government from denying a request to modify an existing facility under particular conditions when the modification does not "substantially change the physical dimensions of a tower or base station." Federal law does not define what is considered a "substantial' change and staff recommends a five percent standard to ensure that public views are protected and visual impacts are avoided. 15. Radio Frequency (RF) Emissions Reporting [Section 20.49.110] The current telecom ordinance required RF compliance reporting and this section is intended to continue the policy of requiring them. Staff has received comments indicating that RF emission reports are unnecessary given Federal Communications Commission (FCC) oversight. It is acknowledged that telecom facility cannot be operated with RF emissions that exceed applicable FCC standards. The compliance report is a simple means to document compliance. The telecom industry is also concerned about the use of RF emissions as a consideration in the review of applications for proposed facilities. The City acknowledges that RF emissions are under the jurisdiction of the FCC and that the consideration of RF emissions for FCC compliant facilities is precluded by federal law. Next Steps Based upon Commission direction and public feedback, staff will prepare a final revised draft ordinance that will be published in advance of a future public hearing to allow for review and comment. Prepared by: Submitted by: W k JaWes Campbell, Principal Pla ner , Deputy Director 0 ATTACHMENTS PC 1 Draft Ordinance PC 2 Comment Letters Wireless Telecommunications Facilities Ordinance (PA2012 -057) September 19, 2013 — Study Session Page 7 7 Intentionally Blank ATTACHMENT PC 1 Draft Ordinance Intentionally Blank 10 Chapter 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 20.49.080 — 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 wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with state and federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating the impacts of such facilities. More specifically, the regulations contained herein are intended to; 1) encourage the location of Antennas in non - residential areas, 2) encourage Collocation at new and existing Antenna sites, and 3) encourage Telecom Facilities to be located in areas where adverse visual impacts on the community and public views are minimized. 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. Page 11 11 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 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 Facility, consistent with Section 20.49.090 (Agreement for Use of City -owned 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. 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: Page 12 12 1. Rules, regulations, policies, or conditions in any permit, license, or agreement issued by a local, state orfederal agency which has jurisdiction overthe 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 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. Page 13 13 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. S. 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 is not limited to City Hall, Police and Fire facilities, recreational facilities, parks, 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 "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. Feasible means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal and technological factors. Page 14 14 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. Telecommunications) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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. Page 15 15 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: 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. 4. On streetlights. 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 Page 16 16 an existing or replacement streetlight 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 compelling evidence submitted by the applicant, 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. 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 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 possible. 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 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. Page 17 17 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). 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. 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 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 (AELUP) for John Wayne Airport and Airport Land Use Commission (ALUC) 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 service to the Telecom Operator's 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 M M 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, hides 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. 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 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 Page 19 19 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 side of the Antennas. 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, 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 Page 110 20 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. 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 possible, 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. Page 111 21 (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. (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. Page 112 22 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. 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. 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 Facility 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. Page 113 23 B. Permit Required. All Telecom Facilities shall obtain a MUP, CUP, LTP, or ZC if not prohibited by subsection 20.49.050.13, depending on the Antenna Class and location, as specified in the Table 4 -1: 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 review and action of a CUP by the Planning Commission. (b) DAS 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. 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. Page 114 24 Antenna Class and Permit Requirement Class 1 Class 2 Class 3 Class 4 Class 5 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 but 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 review and action of a CUP by the Planning Commission. (b) DAS 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. 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. Page 114 24 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. Page 115 25 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. 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. Page 116 26 20.49.100 — Modification of Existing Telecom Facilities. 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 the processing of 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 (5 %) 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, 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 triggered a discretionary review. 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 Page 117 27 submitted in order to demonstrate that the Telecom Facility is operating at the approved 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 Page 118 28 finding of abandonment, the City shall provide notice to the Telecom Operator last known 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. Removal by City. 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. Page 119 29 Intentionally Blank 30 ATTACHMENT PC 2 Comment Letters 31 Intentionally Blank 32 PCIA July 19, 2012 VIA ELECTRONIC MAIL Newport Beach Planning Commission c/o Janet Johnson Brown, Associate Planner City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 jbrown @newportbeachca.gov Re: Proposed Amendments to Wireless Telecommunications Facilities Ordinance Dear Ms. Brown, -J calwa PCIA —The Wireless Infrastructure Association ( "PCIA" )l and the California Wireless Association ( "CaIWA ")Z writes to provide comment on the City of Newport Beach's proposed amendment to the Newport Beach Municipal Code to update regulations regarding wireless telecommunications facilities in light of the scheduled public hearing on the matter before the Planning Commission on Thursday, July 19, 2012. Attached please find the proposed amendments marked with comments. PCIA and CaIWA respectfully request that Planning Commission defer action on this item until the industry has had an opportunity to sit down with staff and discuss the concerns reflected within this letter and in the attached mark -up. PCIA and CaIWA applaud the City of Newport Beach for recognizing that there have been numerous changes in Federal and State law regarding local regulation of wireless facilities, as well as a tremendous increase in the demand for wireless services that required the industry to change how it responds and keeps up with demand from its subscribers, especially in sophisticated communities like Newport Beach. We encourage the City to craft an ordinance that enables logical and intelligent deployment with an objective set of standards that comply with state and federal law and allows the timely provision of quality wireless service. To this end, in order to ensure that Newport Beach's efforts to modernize its wireless ordinance are as comprehensive as possible, PCIA and CaIWA offer the attached mark -up of the draft amendments. 'PCIA is the national trade association representing the wireless infrastructure industry. PCIA's members develop, own, manage, and operate towers, rooftop wireless sites, and other facilities for the provision of all types of wireless, broadcasting and telecommunications services. With a mandate to facilitate the deployment of wireless infrastructure, PCIA and its members partner with communities across the nation to effect solutions for wireless infrastructure deployment that are responsive to the unique sensitivities and concerns of these communities. ZCa1WA is a non - profit organization made up of volunteers who work in the wireless /telecommunications industry throughout California. Its goal is to raise awareness about the benefits of and to promote the wireless industry, to educate the public and political leaders on issues of importance to the wireless industry, and to cultivate working relationships within and between the industry, the public and political leaders. 33 PCIA calwa Despite the importance of wireless services and its potential for job creation, local review of the placement of wireless facilities remains a persistent barrier to the deployment of wireless infrastructure. For example, the proposed amendments to Newport Beach's Municipal Code could better facilitate the deployment of wireless infrastructure in order to bring wireless service to Newport Beach's residents. PCIA and CalWA hope to work together with the Planning Commission to find a solution for wireless infrastructure deployment that is responsive to the City of Newport Beach's needs and concerns. For this reason, PCIA and CalWA urge that Planning Commission defer action on this item to allow time to consider and discuss the industry's concerns. The Need for Wireless Infrastructure Wireless services, from basic voice communication to mobile broadband, enable communication, productivity, mobility, and public safety. Wireless infrastructure is the backbone of wireless networks; without it, wireless services cannot be delivered to users. Wireless infrastructure enables use of spectrum by providing the vital link between the end -user and the network. The strategic deployment of wireless infrastructure improves the efficient use of limited spectrum resources, which in turn improves the performance of wireless services. Wireless providers are currently undertaking a multi- faceted effort to deliver next- generation wireless services, such as 4G LTE, in addition to ensuring that current and next - generation networks have the capacity to handle the surge in traffic that comes with the increased adoption rates of smartphones, tablets and other data devices. Wireless networks trust adapt to growing capacity demands due to an 1,800 percent increase in traffic on U.S. wireless networks in the last four years and a projected growth of eighteen times current levels of mobile data traffic in the next five years.° Mobile Internet users are projected to outnumber wireline Internet users by 2015, when a majority of Americans will utilize a wireless device as their primary internet access tool.5 This will result in two billion networked mobile devices by 2015.6 The need for rapid deployment extends beyond mere consumer convenience. More than 70 percent of all emergency calls are placed using a wireless device .7 The ability to access fire, rescue and police services may be significantly hindered without wireless infrastructure, especially for those relying on wireless as their sole form of voice communications. As noted by the Federal Communications Commission ( "FCC "), [T]he deployment of facilities without unreasonable delay is vital to promote public safety, including the availability of wireless 911, throughout the nation. The importance of wireless communications for public safety is critical, especially as consumers 3 Mobile Future, 2011 Mobile Year In Review (Dec. 2011), available at http:// mobilefuture .org /page /- /images/2011- MYIR.pdf. Quentin Hardy, The Explosion of Mobile Video, N.Y. Times, Feb. 14, 2012, available at http : //bits.blogs.nytimes.com/2012 /02/14 /the - explosion -of- mobile- video /. e Hayley Tsukayama, IDC: Mobile Internet Users to Outnumber Wireline Users by 2015, Washington Post, Sept. 12, 2011, available at 13ttp : / /www.washingtonpost.com/blogs /post- tech/posVide- mobile- intemet- users -to- outnumber- wireline- users -by- 2015 / 2011/ 09/1 2 /gIQAkZP7MK_blog.html ?wprss=post -tech. e Mobile Future, 2011 Mobile Year In Review. FCC.gov, Guide: Wireless 911 Services, available at http: / /www.fcc.gov /guides /wireless -9I I- services. 34 PCIA calwa increasingly rely upon their personal wireless service devices as their primary method of communications As NENA observes: Calls must be able to be made from as many locations as possible and dropped calls must be prevented. This is especially true for wireless 9 -1 -1 calls which must get through to the right Public Safety Answering Point ( "PSAP ") and must be as accurate as technically possible to ensure an effective response. Increased availability and reliability of commercial and public safety wireless service, along with improved 9 -1 -I location accuracy, all depend on the presence of sufficient wireless towers.) For this reason, decisions on siting requests made by the personal wireless service industry were not intended by Congress to be subjected "to any but the generally applicable time frames for zoning decision [s]. "10 Thus, the adoption of special procedural schemes unique to wireless siting requests should be avoided. The FCC Shotclock Declaratory Ruling and the California Permit Streamlining Act In addition to the provisions of Section 337(c)(7) of the Communications Act of 1934 referred to in the staff report, subsection (13)(ii) of that section contains another requirement that the City should keep in mind when crafting its new ordinance. That provision requires that a "local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request." The FCC recently adopted a Declaratory Ruling on November 18, 2009 under this subsection holding that "a `reasonable period of time' is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, also presumptively, 150 days to process all other applications.s1I Given the rate at which demand for advanced wireless services has been growing, and in particular the growth in the demand for bandwidth as a result of adoption of smart phones and wireless - enabled laptops and tablets, the need for speedy local approvals of proposed wireless deployments has become truly critical to providing the wireless services consumers demand. Indeed, the FCC's presumptive timeframe for action may be superfluous given that California law has, for decades, contained absolute deadlines by which action must be taken. As you are no doubt aware, the California Permit Streamlining Act imposes a 60 -day time limit for approving or denying a requested permit after a project has been determined to be categorically s Petition for Declaratory Ruling To Clarify Provisions oJ'Section 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 153 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 FCC Red 13994, 14021171 (2009) ( "Shot Clock Ruling "), recon. denied, 25 FCC Red 11157 (2010), q# d, City of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEXIS 1252 (5th Cit. 2012). Shot Clock Ruling, at 36. o H.R. Conf. Rep. No. 104458, 104th Congress, 2nd Sess. 208 (1996). Shotclock Ru ling. 35 L, calwa PCIA exempt from CEQA12 or a negative declaration or mitigated negative declaration has been adopted." The Wireless Provisions in Middle Class Tax Relief and Job Creation Act of 2012 Staff failed to mention the Middle Class Tax Relief and Job Creation Act of 2012, enacted with bipartisan support and signed into law by President Obama on February 22, 2012. One of the measures included in the Act was the creation of a nationwide interoperable broadband network for first responders. In addition to authorizing the FCC to allocate necessary spectrum for this new interoperable network, the Act also contained provisions designed to establish voluntary incentive auctions of wireless spectrum, which are expected to raise $15 billion over the next eleven years. Seven billion dollars of the auction proceeds have been allocated for public safety broadband network build out. The Act reflects an implicit acknowledgement that realizing the financial viability of the spectrum auctioned depends on the ease with which purchasers can deploy the infrastructure needed to utilize it. At the same time, it allays local concerns over the potential impact of the construction of new sites. In a carefully crafted attempt to address both industry and local concerns, Section 6409 of the Act streamlines, and thereby incentivizes the use of, modification of existing sites in lieu of new builds. Although the staff proposals reflect a similar recognition of the need for streamlined review of modifications, PCIA and CaIWA provide herewith a detailed explanation of this recent law due to concerns that the definitions provided in the report fail to reflect those adopted and utilized by the FCC. Section 6409 of the Act requires state and local governments to approve an eligible facilities request for the modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. Section 6409 applies to "eligible facilities requests" for modification of existing wireless towers and base stations. The Act defines "eligible facilities request" as any request for modification of an existing wireless tower or base station that involves: Collocation of new transmission equipment; Removal of transmission equipment; or Replacement of transmission equipment. Many of the terms employed in the section are concepts that were hammered out in negotiations between local government and industry representatives in an agreement that was adopted by reference in regulations promulgated by the FCC. Thus, for example, "collocation" has been defined as "the mounting or installation of an antenna on an existing tower, building or structure for the pur�tose of transmitting and /or receiving radio frequency signals for communications purposes." 4 "Gov. Code § 65950(a)(4). "Gov. Code § 65950(a)(3). 14 Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (2001), available at 47 C.F.R. Part I, Appendix B ( "Collocation Agreement "). See also Petition for Declaratory Ruling To Clarifj, Provisions of Section 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and Local Ordinances That Classy All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 4 36 PCIA calwa The same agreement also addressed the issue of what constitutes a substantial change in the size of a tower: The mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10 %, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or The mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or The mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site. 15 In this agreement, a "tower" is defined as "any structure built for the sole or primary purpose of supporting FCC - licensed antennas and their associated facilities. 16 While the concept of a "base station" is not referenced in the agreement, the term has a long - established meaning consistently used throughout both FCC regulations and case law, namely a fixed location from which wireless signals are transmitted. For example, FCC regulations define a "base station" as "[a] station at a specified site authorized to communicate with mobile stations;" or "A land station in the land mobile service." 17 We urge the Planning Commission to use these well recognized definitions within its Ordinance. FCC Rcd 13994, 14021 1171 (2009) ('Shot Clock Ruling'), recon. denied, 25 FCC Red 11157 (2010), affd, City of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEX1S 1252 (5th Cit. 2012). "Collocation Agreement, note, above. 161d. 17 See, e.g., 47 C.F.R. § §24.5, 90.7. 37 PCIA Conclusion calwa Reliable wireless communications are no longer a luxury. Wireless facilities provide a platform for broadband accessibility, creating a link from the City of Newport Beach to the world through high -speed Internet access. The City of Newport Beach has an opportunity to facilitate expanded wireless coverage to its citizens, businesses, and first responders by moving forward with amending its code in consideration of the wireless infrastructure industries' suggestions provided herewith. PCIA and CalWA hope to participate in the ordinance revision process as it develops, if Planning Commission defers action on this item to consider the industry's concerns. We appreciate your support to further our mutual goal of implementing and deploying responsible and timely wireless infrastructure to serve the City of Newport Beach, CA. Sincerely, /s/ Julian Quattlebaum Co- Chair, Regulatory Committee California Wireless Association (CalWA) 800 S. Pacific Coast Hwy # 448 Redondo Beach, CA 90277 310- 356 -6950 jq@channellawgroup.com Sean Scully Co- Chair, Regulatory Committee California Wireless Association (CalWA) 800 S. Pacific Coast Hwy # 448 Redondo Beach, CA 90277 818 -426 -6028 permittech @verizon.net /s/ Kara Leibin Azocar Government Affairs Counsel PCIA —The Wireless Infrastructure Association 901 N. Washington St., Suite 600 Alexandria, VA 22314 703 -535 -7451 Kara. Azocar @pcia.com 38 From: Cynthia Jolly [cynthia @mobilitie.com] Sent: Wednesday, July 24, 2013 3:23 PM To: Campbell, James Cc: Chris Glass Subject: RE: Newport Beach Telecom Ordinance update Attachments: Newport Beach Draft Telecom ordinance 2013 - Mobilitie LLC Comments.docx Jim, Attached are Mobilitie's comments to the Newport Beach Draft Telecom ordinance. We welcome the opportunity to discuss if you have questions prior to the planned Planning Commission study session on August 8th. Thank you, Cyndi Jolly I Director, Network Strategy nthi m bdiie.c m Elm 1111 a weeawWAMIMIWO 10A'a4eeeu" 660 Newport Center Drive Suite 200 1 Newport Beach, CA 92660 949. 717.6018 tel 1 949.6895029 mobile www.mobilitie.eom CONFIDENTIALITY NOTICE I The email message is for the exclusive use of the addressee(s) and contains confidential, privileged and non- disclosable Information. If the recipient of this message is not the addressee, or a person responsible for delivering the message to the addressee, such recipient is prohibited from reading or using this message in any way. If you have received this message by mistake, please call us immediately and destroy the email message. Mobilitie is a trademark or registered trademark of Mobilitie, LLC in the U.S. and other countries. 39 Chapter 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 20.49.080 — 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 wireless telecommunication facilities ( =eleGem P„'l''°^r "` [ "TELECOM FACILITY" IS DEFINED IN THE DEFINITIONS SECTION BELOW1 on public and private property consistent with state and federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating the impacts of such facilities. More specifically, the regulations contained herein are intended to; 1) encourage the location of Antennas in non - residential areas, 2) encourage Collocation at new and existing Antenna sites, and 3) encourage Telecom Facilities to be located in areas where adverse visual impacts on the community and public views are minimized. 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 Fne4 ..cs,,.,em ,.,a least i44_KiVP AVANIAblecommercially reasonable technology in order to minimize the number of Telecom Facilities in the City and reduce their visual impact on the community and public views. [WHAT DOES LEAST OBTRUSIVE TECHNOLOGY MEAN AND HOW CAN THIS STANDARD MINIMIZE THE NUMBER OF TELECOM FACILITIES? "MOST EFFICIENT" AND "LEAST OBTRUSIVE" REQUIREMENTS CAN CONTRADICT EACH OTHER (YOU CAN'T ALWAYS ACCOMPLISH BOTH AND WILL ELIMINATE FUTURE COLLOCATION OPPORTUNITIES). Page 11 40 DESIGNING A SITE FOR FUTURE COLLOCATION WILL MINIMIZE THE NUMBER OF TELECOM FACILITIES.I 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 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), [ARE THERE CIRCUMSTANCES WHERE AN AUTHORIZATION /APPROVAL OTHER THAN THE FOREGOING IS REQUIRED? IF SO, THEN INCLUDE HERE "or other authorization or approval required under the Municipal Code, "J depending on the proposed location, and Antenna Class, WHAT DOES "METHOD OF INSTALLATION" MEAN? THE PERMIT TYPE WOULD BE BASED ON HOW THE TELECOM FACILITY IS ENGINEERED /DESIGNED, NOT ON HOW THE TELECOM FACILITY IS INSTALLED BY THE CONTRACTOR.I, 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 -owned 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. 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. Page 12 41 5. 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, pelides; 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 or any other provision of the Municipal Code: 1. All applicable City design guidelines and standards. [HOW DO WE KNOW WHICH GUIDELINES AND STANDARDS ARE APPLICABLE? TOO BROAD.I 2. Requirements established by any other provision of the Municipal Code and by any other ordinance and regulation of the City. F. Legal Nonconforming Telecom Facility. Any Telecom Facility that is lawfully constructed, erected, or approved pursuant to an application that was complete prior to the effective date of this Chapter that does not conform to the requirements of this Chapter but is otherwisgeperat+ng in compliance with all applicable laws, and whdEh Paeil `y deer Rat ,.....f,..... to the .......:.-....., Rts ..f this .-ti......._ shall be accepted and allowed as a legal nonconforming Telecom Facility if Athpr ^ ;° ed and Genqtructpd. 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 f,.a,..,i and state laws as they may he a .,ded „ aeted and shall at all times comply with any conditions of approval authorized under the Municipal Code. 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, AAteA,;as, arrays, or other similar antennas or 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 Page 13 42 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 Telecom 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 44y%screened so that they are not visible to the general public. 2. Class 2 (Visible): a Telecom Facility that does not fall into Class 1 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 Telecom Facility that does not fall into Class 1 or 2 with Antennas installed on an existing or proposed structure located in the public right -of -way. 4. Class 4 (Freestanding Structure): a Telecom Facility that does not fall into Class 1, 2 or 3 with Antennas mounted on a new freestanding structure constructed for the sole or primary purpose of supporting the Telecom Facility. S. Class 5 (Temporary): a Telecom Facility that may fall into Class 1. 2, 3 or 44^with 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 is not limited to City Hall, Police and Fire facilities, recreational facilities, parks, libraries, monuments, signs, streetlights and traffic control standards. F. Collocation. Collocation means an arrangement whereby ff"444e- Telecom Facilities are installed for more than one wireless service provider or onerator 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 Page 14 43 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 "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. Feasible means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, engineering, structural, 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 AF fae4ies— within the City. [DIFFERENTIATE BETWEEN OPERATOR OF THE TELECOM FACILITY AND THE TELECOM OPERATOR (TELECOM FACILITY OWNER VS. TELECOM FACILITY TENANT /CARRIER). TELECOM FACILITY OWNER OPERATES AND MAINTAINS THE TELECOM FACILITY, BUT THE TELECOM FACILITY TENANT /CARRIER (WHO LEASE FROM TELECOM FACILITY OWNERS) MAY HOLD A SEPARATE PERMIT FOR THEIR EQUIPMENT AND ARE RESPONSIBLE FOR COMPLIANCE WITH THE FCC AND WOULD SUPPLY THE RF EMISSION SAFETY REPORTS (REFERENCE SECTION 20.49.1101. NOTE: TELECOM FACILITY OWNERS GENERALLY REQUIRE IN THEIR CARRIER AGREEMENTS THAT THESE ARE COMPLIED WITH.[ PA PubliG RigM of Way, PHIalie Right of Way 9F ("PROW") i:AeaRs the FiqpFek,ed 9F uRkzHpFe,.,Pd la.—, aiieys, _dewalks, medl@ .', PaFIEWcyS and landsEapcT Svcs. [PROW IS DEFINED IN TITLE 13. 4-.M. Stealth or Stealth Telecom Facility. Stealth or Stealth Telecom 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 Page 15 44 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 Telecom Facility. A,N_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 Telecom 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:O_ Telecom munication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility,-- eF N TITLE 131. Telecommunications) Facility, Telecom Facility, Telecom Facilities, or Wireless Telecommunications Facility, ^ T^'•• Faeolit • ^• g...,':.:^s means an installation that sends 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-,­aad the 'R^•' OF 54•1641•^ AR v0hieh they aFe all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios /telephones and their associated transmitting antennas. 4P_Utility Pole. Utility Pole means a single freestanding pole used to support services provided by a public or private utility provider. R,C Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or steel pole used to support electric transmission facilities. 5- R_ 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 PUFSHaRt `^ ...-.._.:f:.....^ Of P-Ila':.. C ..........:...._^ and ni..eessity ((;PC -N) issued by the rut,.. ;. P, b"r C ^„ ^n 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. [REFERENCE 20.49.050 (13)(4) BELOW.( 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 ..- 45 for the location and installation of Telecom Facilities, from highest priority location and technique to lowest. 1. Collocation ,s a ReW W'an't•, at @R i5tiRg faGi ;.•, 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 to the extent such prohibitions are not inconsistent with federal and state law: 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. [CAN AN EXISTING TELECOM FACILITY IN THE OS ZONING DISTRICT BE MODIFIED FOR COLLOCATION IF THE CURRENT DESIGN IS INADEQUATE (I.E. INCREASE STRUCTURE HEIGHT AND /OR GROUND SPACE) ?1 [THE DEFINITION OF WIRELESS TOWER INCLUDES STREET LIGHTS AND IS REFERENCED IN CLASS 3 OF PREFERRED LOCATIONS, BUT ARE LISTED HERE AS A PROHIBITED LOCATION.1 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 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 FeYieWiRg allt GFit-.•CitV determines, based on eA+Rg— sufficient evidence submitted by the applicant, that Collocation of one or more new Telecom Page 17 46 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 Fpvip w at4E#eriByC y may impose a condition of approval providing for future Collocation of Telecom Facilities by other carriers at the same site. [HOW WOULD THIS CONDITION BE WORDED?] 20.49.060 — General Development and Design Standards. A. General Criteria. All Telergm Pari"taes shall .. ..I... design t..ehni. ues to ... al , .,...J .ti..... ..F the T..I....em Paeil:ty as visually pessibl.. [REDUNDANT - SEE COMMENT IN 20.49.010(A) ABOVEI To the greatest extent Feasible, and depending on where its located, Telecom Facilities shall be designed to minimize the visual impact of the Telecom Facility by means of location, placement, height, screening, landscaping, and 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 to the extent Feasible: 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. B. Public View Protection. Telecom Facilities involving a site adjacent to an identified public view point AF rAFF dAF, 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). [A BETTER DEFINITION AND DEPICTION FOR CORRIDOR IS NEEDED (I.E. "SCENIC CORRIDOR SHALL BE ESTABLISHED ON A MAP ")l. C. Height. 47 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. 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 height limit after making all of the required findings in Section 20.49.070.11+ (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 (AELUP) for John Wayne Airport and Airport Land Use Commission (ALUC) Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. the Teleee ' QpeFat8-'5 ff9pesed s . In aRy case, FiTo the extent permitted by federal and state law, no Antenna or other telecom equipment or screening structure shall extend higher than the following maximum height limits: [AVERAGE SERVICE TO PROPOSED AREA IS UNACCEPTABLE.1 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, hides 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: Page 19 48 1. Screening elements to disguise, or otherwise hide the Telecom Facility from view from surrounding uses. 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. MEN 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 Page 110 49 mounted and shall be compatible with the architectural texture and materials of the building to which the Antennas are mounted. Ne "bles RRa TRURtiRg ` Fi3eke•s er 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, 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. f REFERENCE 20.49.050 (13)(4) ABOVE.) 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 reasonably match in scale and color other rock outcroppings in the general vicinity of the proposed site, provided such rock outcroppings exist. A faISP FRrc at be eeRsideFed appFqpFlate 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 Page 111 50 comparable living vegetation may be necessary to enhance the false tree or shrubbery screen structure. 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. [THIS DOESN'T WORK BECAUSE 24 INCHES IN WIDTH AT THE TOP OF THE FLAGPOLE IS REQUIRED TO INCORPORATE THE ANTENNAS AND NECESSARY MOUNTING BRACKETS /SUPPORT.1 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 pessibleFeasible, 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 Page 112 51 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. (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. Page 113 52 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 is smallest PeFFAm«'lg'e gm ;paccordance with the foregoing. 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. 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 Facility 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 etseq.). 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 20.49.050.13, depending on the Antenna Class and location, as specified in the Table 4 -1: Page 114 53 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 review and action of a CUP by the Planning Commission. (b) DAS 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 Telecom Facility complies with the screening requirements. 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. 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 Telecom Facilities. Notwithstanding any provision of this Chapter to the contrary, pursuant to California Government Code section 65850.6 (as amended or Page 115 54 Antenna Class and Permit Requirement Class 1 Class 2 Class 3 Class 4 Class 5 Location of Proposed Telecom Facility (a) (a) (b) (a) (b) (a) (b) (a) Telecom Facility located in any Zoning ZC MUP MUP MUP LTP District, 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. Telecom Facility not located in the area ZC MUP MUP CUP LTP identified in Subsection 1 but 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. Telecom Facility not located in the other ZC CUP MUP CUP LTP areas 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 review and action of a CUP by the Planning Commission. (b) DAS 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 Telecom Facility complies with the screening requirements. 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. 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 Telecom Facilities. Notwithstanding any provision of this Chapter to the contrary, pursuant to California Government Code section 65850.6 (as amended or Page 115 54 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 Telecom F #acility 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. 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 Page 116 55 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. 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. Notwithstanding any provision in this Chapter of the Zoning Code, a request to modify an existing Telecom 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 the processing of any discretionary permit provided that such modification does not substantially change the existing Telecom Facility from the original permit for the Telecom Facility. A substantial change means a single change, or series of changes over time that exceeds five percent (5%) of the physical dimension of the Telecom Facility approved as part of the original discretionary permit. Page 117 56 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 Telecom Facility. Any permit issued will be conditioned, 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 triggered a discretionary review. 20.49.110 — Operational and Radio Frequency Compliance and Emissions Report. At all times, the wireless 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 wireless 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 wireless 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 frequency and complies with FCC standards for radio frequency emissions safety as defined in 47 C.F.R. § 1.1307 etseq. 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 T� wireless operator, Page 118 57 the T,plt —rnw wireless 8operator shall be required to provide an updated, certified radio frequency (RF) compliance and RF emissions safety report. (DIFFERENTIATE BETWEEN OPERATOR OF THE TELECOM FACILITY AND THE TELECOM OPERATOR (TELECOM FACILITY OWNER VS. TELECOM FACILITY TENANT /CARRIER).l 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 beyond a reasonable cure period 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, provided that no Telecom Operator is then using the Telecom Facility: [DIFFERENTIATE BETWEEN OPERATOR OF THE TELECOM FACILITY AND THE TELECOM OPERATOR (TELECOM FACILITY OWNER VS. TELECOM FACILITY TENANT /CARRIER).l 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 to use such Telecom 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. Page 119 58 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. Removal by City. 1. The City may remove an abandoned Telecom Facility on publicly owned property, 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 on publicly owned property. 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 publicly owned 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. Page 120 59 August 1, 2013 Mr. James Campbell Principal Planner Community Development Department 100 Civic Center Drive Newport Beach, CA 92660 In Reference To: Revised Wireless Telecommunications Facilities Ordinance Dear Mr. Campbell: CalWA, the California Wireless Association appreciates receiving the City of Newport Beach revised Wireless Telecommunications Facilities Ordinance dated June 2013. We also received the e-mail notice that there will be another work session on your wireless ordinance before your Planning Commission on August 8th. CalWA and PCIA, the Wireless Industry Association, submitted a letter and detailed comments in July 2012 on the draft of the City's Wireless Telecommunications Facilities (WTF) Ordinance. We are pleased that many of our comments and suggestions have been incorporated into the revised ordinance, and that the new draft now recognizes Section 6409 of the Middle Class Tax Relief and Jobs Creation Act of 2012 for the collocation, removal and replacement of equipment at existing wireless facilities. However, even with the recent modifications to the proposed WTF ordinance, further changes could better facilitate the responsible deployment of wireless infrastructure improvements needed to adequately serve the citizens of Newport Beach. The PCIA/CaIWA letter dated July 19. 2012 (attached) clearly sets forth the continuing need for improved wireless infrastructure. Wireless networks must adapt to dramatic capacity demands due to an 1,800 percent increase in traffic over the last four years and a projected growth of 18 times current levels of mobile data traffic over the next five years. Mobile internet users are projected to outnumber wireline users in two years. Without ongoing improvements to the City's wireless backbone infrastructure, dependable wireless services cannot be delivered to the citizens of Newport Beach. The following provides CalWA's comments on the current June 2013 draft of Chapter 20.49 of City Staff's proposed Wireless Telecommunications Facilities Ordinance. 60 ;W, calwa ;V fsfs�.. fit, Section 20.49.010 - Purpose (Page 1) � This initial statement should acknowledge the important role wireless infrastructure, mobile communication and internet access now plays in Newport Beach related to the City's economy, job creation, productivity and public safety. It should also acknowledge that wireless infrastructure is a "utility" as defined by California's Constitution, and should be permitted under a similar rubric as other utility infrastructure improvements. Section 20.49.30 - Definitions, C. Antenna Classes (Pages 3 and 4) The antenna classes in the latest draft have been revised to remove "Collocations ", formerly a Class 2 Facility. This has been made in compliance with federal law, and will help facilitate anticipated 4th Generation /LTE upgrades at existing sites within the City. However, additional sites will be needed, especially in high traffic areas to avoid capacity issues associated with rapidly growing mobile internet data transmissions. DAS systems and "Small Cells" located within public rights of way are needed to provide coverage and capacity in residential neighborhoods and in certain commercial areas. Small Cells are also needed in "hot spot" - high traffic areas, primarily for capacity reasons. CaIWA suggests that smaller sites within public rights -of -way be allowed through an administrative Encroachment Permit and /or Zoning Clearance process if the project demonstrates compliance with the ordinances' design and screening standards. Section 20.49.050 - Location Preferences, B. Prohibited Locations (Page 6) The City should consider allowing wireless infrastructure in all zones in the City. The majority of Newport Beach residents now use their wireless smart phones, tablets and lap tops as their primary communication and internet access devices. They want these devices to work in their homes as well as where they work, and while they are traveling. We all want them to work everywhere, especially in an emergency situation. However, CalWA understands that residents don't want wireless facilities that result in adverse aesthetic impacts that affect views. CalWA suggests that wireless infrastructure, like wireline telephone, electricity and natural gas utility infrastructure be allowed in residential zones through a Minor Use Permit or Conditional Use Permit process if the project demonstrates compliance with the ordinances' design and screening standards. Subsection 4 under Prohibited Locations indicates that telecom facilities are prohibited on streetlights. However, other sections of this draft WTF ordinance encourages the use of streetlights as a preferred location within the public rights -of -way. CalWA suggests that Subsection 4 be removed from Section 20.49 -050. 61 calwa Section 20.49.060 - General Development and Design Standards A. General Criteria (Page 7) CaIWA supports the City in its efforts to minimize visual impacts of providing wireless infrastructure, and the use of reasonable aesthetic criteria to be used in evaluating wireless applications. However, CaIWA would like City Staff, the Planning Commission and City Council to keep in mind the important "utility" role that wireless infrastructure plays in Newport Beach. No other utility infrastructure must adhere to the standards and criteria set forth in this ordinance. We respectfully request the City begin to look at wireless improvements in the same manner as other utility providers. D. Setbacks (Page 8), and Section 20.49.070 - Permit Review Procedures, Subsection B. Permit Required, Table 4 -1 - Permit Requirements for Telecom Facilities (Page 14) Setbacks required in Section 20.49.070 - Permit Review Procedures, Subsection B. Permit Requred, Table 4 -1 - Permit Requirements for Telecom Facilities sets forth a setback of 150 feet from Residential, Open Space, Public Facilities and Parks and Recreation Districts as a criteria under which different classes of ministerial and discretionary permits are required. The suggested 150 foot criterion is arbitrary, and a lower setback of 50 or 100 feet should be considered. CaIWA also suggest that there be no setback requirements for Class 3 sites located in public rights -of -way adjacent to residential, open space, public facilities and open space zoned properties. Under state law, the City's management of access to the public streets is required to be exercised in an equivalent manner as to all entities. Subjecting wireless facilities to setbacks that do not apply to other utility infrastructure utilizing vertical elements is unreasonable and raises questions as to whether such regulations are in fact based over perceived health concerns over radio frequency exposure in violation of federal law. CaIWA also suggests that Class 3 public right -of -way sites not located within the setback area of any of these land use zones should be allowed under a Zoning Clearance, and not a Minor Use Permit. Section 20.49.060 - General Development and Design Standards F. Screening Standards, 6. Support Equipment (Pages 11 and 12) Undergrounding support equipment on private property and within public rights -of -way is a significant issue for wireless providers, especially in Newport Beach because of very high groundwater levels along the coast and in other more elevated areas of the City. Major rainstorms and isolated thunderstorms in the past have resulted in significant damage to support equipment, especially where flush -to -grade vents are required. This 62 's has resulted in wireless carrier losses of millions of dollars over the years and the loss of coverage and capacity in local networks during major rainstorms, which adversely affects public safety during emergency situations. The City's wireless ordinance needs to provide reasonable flexibility for above grade support equipment, similar to what is required for other utility providers, and for the City's traffic signal equipment, which are critical for safety during major rainstorms. Section 20.49.060 - General Development and Design Standards G. Emergency Communications Review (Page 15) The last decade has shown that wireless infrastructure does not interfere with emergency communication facilities. This includes the City of Newport Beach Police and Fire Departments, and the Orange County Fire Authority. Decade old interference issues created by Nextel's previous 800 megahertz operations have been resolved, so this type of review is no longer necessary. City Staff has the ability to forward any wireless permit application to your Police and Fire Department staff for review and comment. It should not be a requirement of a wireless facility applicant to submit a "pre- application test" of new or modified wireless infrastructure to determine if there might be potential interference. CalWA suggests that Section G is no longer necessary and should be removed. Such a pre - application test also violates federal law, as the FCC exercises exclusive jurisdiction over interference issues. Section 20.49.060 - General Development and Design Standards I. Required Findings for Telecom Facilities (Page 15) These criteria are subjective and do not consider the technical requirements of the wireless providers to meet the growing demand for coverage and capacity needs of Newport Beach's citizens. More emphasis should be placed on the important roll wireless broadband access plays in the City. Section 20.49.110 - Operational and Radio Frequency Compliance and Emissions Report (Pages 17 and 18) CalWA has worked with jurisdictions and wireless providers throughout the state, and has never come across a situation where Radio Frequency (RF) emissions exceed federally adopted FCC standards. It is our experience that when testing has been required, actual emissions are a small fraction of FCC standard allowable limits. Over the last decade, RF emission power levels have actually dropped because of network infrastructure expansion. In addition, for many sites, the antennas meet what are referred to in the FCC's regulations as "categorically excluded." See Section 1.1307(b)(1) of the FCC's rules. CalWA suggests that the Radio Frequency Compliance 4 63 fill and Emission Report required by Section 20.49.110 is no longer warranted, at the very least with respect to categorically excluded facilities, and should be removed. Conclusion Reliable wireless communication is no longer a luxury. Wireless facilities provide the basic infrastructure for telecommunication /broadband accessibility that allows the citizens of Newport Beach high -speed Internet access. The City currently has a unique opportunity to facilitate expanded and improved wireless services to its residents, businesses and visitors by amending its WTF Ordinance in consideration of CalWA's suggested revisions. CaIWA will participate in the upcoming ordinance revision process, and will have a representative at the August 8th Planning Commission workshop to answer any questions City Staff or the Planning Commission may have. We appreciate your consideration and support to further our mutual goal of implementing and deploying responsible and timely wireless infrastructure to serve the City of Newport Beach. Respectfully submitted, Ica--- 6L_X�� W. Dean Brown, Regulatory Committee California Wireless Association (CaIWA) c/o The Planning Consortium 23181 Verdugo Drive, Suite 100B Laguna Hills, CA. 92653 (714) 328 -6313 CC: Sean Scully Co- Chair, Regulatory Committee, CaIWA Julian Quattlebaum, Co- Chair, Regulatory Committee, CaIWA Alex Reynolds, PCIA 64 Sprint Mr. James Campbell Principal Planner Community.Developmeni Depailment' 100 Civic Center Drive Newport Beach, CA 92660 In Reference To: Revised Wireless Telecommunications Facilities Ordinance Dear Mr. Campbell: Sprintlias reviewed the City of Newport Beach revised. Wireless Telecommunications facilities Ordinance dated June 201 =3. CaI WA, the CaliforniaWireless Association, has fonvarded'us their response to you dated. July 261". While Sprint broadly concurs with CaIWA's review, we would like to add the'follo*%ving comments: In the last "sentence of paragraph N.. Section'20.4930 Definitions of C. Antenna Classes, it is staled that false trees are no longer considerecl a "stealth Facility". We would challenge this dernition: false trees are indeed a stealth design. Tree designs have improved greatly over recent years and with the:addition of "antenna socks ", more branches, and nnilti -frank trees etc., false trees can lie.welFintegrated into an area's gxisl'ing.vegetation and should beclassifi'ed as.a "stealth facility ".. In paragraph -D of Section 20.49.050 Location Preferences. Sprint coUld, not agree with the recommendation that a new telecom facility proposed within 1,000 feet of an.existing telecom facility be required to collocate on Elie same•building or structure as the existing telecoin facility. While it would be our goal 'to look at whether collocation was feasible, in many cases it is not. This can be Chic to space constraints.if the facility is on a rooftop, lack of height available on an existing mopopole or similarsu'ucture, structural incapability of a free standing structure to support another wireless carrier etc. It. is Nerefore too restrictive to require collocation in all cases. 65 ,;'SCEIVED @y COMMUNITY Sprint 330 Commerce AUG 1 4.2013 Irvine, CA 92602 n� DEVELOPMENT G,Z' August 5, 2013 OF tvEwpoRl 0 Mr. James Campbell Principal Planner Community.Developmeni Depailment' 100 Civic Center Drive Newport Beach, CA 92660 In Reference To: Revised Wireless Telecommunications Facilities Ordinance Dear Mr. Campbell: Sprintlias reviewed the City of Newport Beach revised. Wireless Telecommunications facilities Ordinance dated June 201 =3. CaI WA, the CaliforniaWireless Association, has fonvarded'us their response to you dated. July 261". While Sprint broadly concurs with CaIWA's review, we would like to add the'follo*%ving comments: In the last "sentence of paragraph N.. Section'20.4930 Definitions of C. Antenna Classes, it is staled that false trees are no longer considerecl a "stealth Facility". We would challenge this dernition: false trees are indeed a stealth design. Tree designs have improved greatly over recent years and with the:addition of "antenna socks ", more branches, and nnilti -frank trees etc., false trees can lie.welFintegrated into an area's gxisl'ing.vegetation and should beclassifi'ed as.a "stealth facility ".. In paragraph -D of Section 20.49.050 Location Preferences. Sprint coUld, not agree with the recommendation that a new telecom facility proposed within 1,000 feet of an.existing telecom facility be required to collocate on Elie same•building or structure as the existing telecoin facility. While it would be our goal 'to look at whether collocation was feasible, in many cases it is not. This can be Chic to space constraints.if the facility is on a rooftop, lack of height available on an existing mopopole or similarsu'ucture, structural incapability of a free standing structure to support another wireless carrier etc. It. is Nerefore too restrictive to require collocation in all cases. 65 Sprint In the paragraph dealing with height in 20.49.060 — General Development and Design Standards, it states that antennas shall be installed at a minimum height possible to provide "average service ". Sprint would challenge the definition of "average service ", our goal is to provide substantially better than average service to our customers and we would not want to limit coverage from any of our telecom facilities to such a low level. In the screening standard paragraphs for support equipment in the same section, specifically paragraph 6a does not appear to support the use of ground mounted support equipment for telecom facilities mounted to rooftops or within buildings. Sprint would like to see the inclusion of ground mounted facilities for sites at these locations. We would be grateful if the City would take into account Sprint's comments at its review meeting on August 8'4 . Yours sincerely, Kathryn Crompton Manager — Network Vision — ALU Markets National Site Development (714) 617 -9423 office (714) 920 -4336 cell e -mail: kotltt, +n� crontpion ast)rinr.coat 66 City of Newport Beach, Community Development Department Mr. Jim Campbell, Principal Planner 100 Civic Center Drive Newport Beach, CA 92660 August 21, 2013 RE: Newport Beach Telecom Ordinance Update Mr. Campbell, On behalf of Verizon Wireless, I would like to thank you for yet another opportunity to provide comments to City Staff, concerning the proposed update to the City's Wireless Communications Facilities Ordinance. The last Stakeholders meeting, held on July 25, 2012, proved to be useful and constructive. We are pleased to see that Staff took the time to seriously consider and integrate some of the concerns communicated by the various industry representatives and other concerned /interested parties, into the current version of the draft ordinance. In anticipation of the upcoming September 5th Planning Commission Study Session (rescheduled from August 81h), the following discussion areas and comments are respectfully submitted foryour consideration: 20.49.030. Definitions C. Antenna Classes 4. (Pg. 4) Please provide more clarity on what defines a Class 4 Freestanding Structure. Providing examples of facilities would be helpful. Do Class 4 structures include stealth and non - stealth facilities? Also, the definition states that it is a structure constructed for the "sole or primary purpose of supporting the Telecom Facility." For example, consider a flagpole or similar facility on a property. If the flagpole was to be removed and replaced with a stealth version, a dual purpose is now served. The existing structure was replaced with a facility of similar aesthetics and function. Since it was previously a flagpole that was slightly altered to structurally support telecom equipment, would it now be considered a wireless facility as its primary purpose, rather than a dual function? Would staff interpret this as a Class 4 or 1? What characteristics provide the distinction? Verizon believes that in such a scenario, the facility should not be defined as one whose primary purpose is a wireless communications facility. D. Base Station (Pg. 4): The definition for Base Station does not seem to match that provided by the FCC. If a Base Station does not include the antennas, the antenna supporting structure, or the support 67 equipment, then what specifically does it include by the definition in the draft ordinance? Does it only refer to the equipment cabinets? Are equipment cabinets not supporting equipment? This definition should be revised. On January 25, 2013, the Federal Communications Commission Wireless Telecommunications Bureau, offered guidance on the interpretation of Section 6409 (A) the Middle Class Tax Relief and Job Creation Act (TRA). The FCC defined base station as: (D) Base Station A "base station" consists of "radio transceivers, antennas, coaxial cable, a regular and backup power supply, and other associated electronics." Section 6409(a) applies to the collocation, removal, or replacement of equipment on a wireless tower or base station. In this context, the FCC believes It Is reasonable to Interpret a "base station" to Include a structure that currently supports or houses an antenna, transceiver, or other associated equipment that constitutes part of a base station. There should also be some language or additional detail in the ordinance update in regards to the various types of "Eligible Facilities Requests" under the 2012 TRA legislation. This may be considered to be included in section 20.49.100. The TRA provides for an administrative process for (a) collocation of new transmission equipment, removal of transmission equipment, and replacement of transmission equipment (under specified criteria). Verizon has used a checklist /worksheet to help determine whether a facility /project fits the required criteria to be an "eligible facility ", and would be happy to provide it to City Staff as a reference tool if they so please. Section 20.49.050- Location Preferences D. Collocation Installations (Pg. 7) The requirement that a new telecom facility proposed within 1,000 feet of an existing Telecom Facility shall be required to collocate on the same building or structure as the Existing Telecom Facility can be problematic. While Subsection 1 discusses that compelling evidence can allow for exceptions to this rule, what types of evidence would this include? One scenario would be lack of room to locate equipment and another would be lack of space for antennas. Often even though there is an existing facility within 1,000 feet, that facility it is not within the required coverage area for the radio frequency objectives. Lastly, what if the existing facility is legal nonconforming and any proposal would be more than a five percent (5%) change, as listed in Section 20.49.100? 2. How can the City impose a condition of approval on a property owner, to provide for future co- location of telecom facilities? While the condition can be general in saying that the property owner will make the best efforts to cooperate with the City to provide for future collocation, many property owners may be hesitant to authorize a condition on a future project. Page 6 CAI 01 VI I Illf.1I M,'I ¢I IIgLrFti Section 20.49.060 General Development and Design Standards C. Height (Pg. 8). 1. There is some concern with limiting the height of building /roof mounted structures to the base height limit for the zoning district due to the fact that most buildings.are already constructed to this maximum height limit. If the proposed building to locate on is at the maximum base height limit, there is no additional height for the carrier to locate their antennas on top of the building, which is the preferred location in Section 20.49.050, While the code proposes to allow.additional height through a heightened review process; it is recommended that the proposed code be revised to state that :any building /roof mounted stealth antennas are allowed 15 feet above the maximum base height limit. This will then alleviate the Planning Commission from having to review multiple proposals, due to there .being no additional height available on the existing, building. 48. Additionally; there is some concern with limiting the height on existing streetlight standards, utility poles, utility towers or similar structures. These facility types can all have varying height, which can potentially make them infeasible if the addition of the antennas exceeds the 35' height limit. Instead, we recommend not limiting the actual height, but limiting how high above these structures the antennas can go. 4c. Lastly, with regard to height, limiting ground - mounted flagpoles to a maximum height of 35' may actually limit the ability to provide the necessary coverage for the antennas. Shorter flagpoles often do not allow for a full tapered and natural flagpole look. We have found that taller flagpoles allow for more of a tapered appearance and provide a more aesthetically.pleasing design. C. Setbacks (Pg. .8) While complying with the required setbacks for the specified zoning district is feasible for most installations, there are instances when certain wireless facility designs, such as flagpoles, a monument sign or a clock tower would logically, aesthetically, and functionally make more sense to be located within a front or side yard setback. Has the City considered if in certain instances this could potentially be allowed? Granted, other concerns and protective measures, such as facility placement and equipment placement, will be considered and integrated into the design of these facilities, in order to account for line of sight /corner cut -off requirements, so that a vehicle operator's visibility of traffic is not obscured. Is there any mechanism for relief in these types of situations? F. Screening Standards (Pg. 11) We commend the City for giving applicants some flexibility with the design and placement of supporting equipment, :as carriers often run into several constraints (i.e. construction, zoning,) when designing sites. Often if there are too many limitations and specifications on the design of the wireless facilities in the Code, many of the "would be" optimal candidates (for the City and carriers) are then reridered infeasible. Page d9 III VI I1 11 -1 it It RDIVICL" 4c. This may actually be the case with the proposed code in regards to flagpole installations; given that the proposed ordinance limits the diameter of the pole to 24" at the base and 20" at the top. This combined with the minimum 35' heightlimit in Section 20,49.060.4.c will limit a carrier's ability to utilize this design as the current technology will likely not fit within these parameters. 6. This section regarding support, equipment and the requirement /recommendation of underground vaulting, especially flush mounted vents, is ,problematic and concerning for many carriers. Telecommunications equipment housed in any self- contained,.underground vault generates heat, which can damage or destroy the equipment, Additionally, moisture, either from evaporation or flooding from rain, can severely damage or destroy the equipment. Flush mounted vents further enhance the chances of equipment damage. While damage is a concern; the primary concern is that when the equipment is damaged it can cause a site to go off air, which will have a drastic impact on the overall coverage in the City of Newport Beach. 6.a,1. This 'section mentions several options regarding equipment locations for building - mounted facilities;. such. as within; the building;, in a vault or on the roof, but it does not 'mention allowing equipment to be located at grade within a screened equipment enclosure. We recommend adding this as an additional option. Consider.encouraging /providing fleuib"ility'in standards for emergency backup generators The O.rdinarice is currently:silenton its "stance and interpretation on emergency backup generators. The City should even consider placing emergency_ backup generators in their own category, as opposed to the umbrella of "`supporting equipment ", given the increasing importance of having permanent generators: at all wireless facility sites. The City should consider adding a section /verbiage regarding emergency back -up diesel generators, and encourage the flexibility to use all types (diesel, propane; alternative fuel). Standby generators and batteries .serve a vital role to wireless carriers' networks, especially in power outages, emergencies and natural disasters. In :the event power outages, a wireless carrier's equipment will first transition over to the back -up batteries. The batteries can run the site for a few hours depending upon the demand placed on the equipment. Should the power outage extend beyond the capacity of the batteries, the backup generator will automatically start and continue to run the site. While many public: safety agencies employ their own two =way radio systems for intra - agency communications, the various wireless carriers' networks are often the link 'to other agencies, organizations, and the outside world. Backup batteries and generators allow wireless communications facility sites to continue providing valuable communications services in the event of a power outage, natural disaster, or other emergency. Additionally, in light of limited space on a number of properties in beach communities, as a note; the City should consider variances or some relief in parking; setbacks, etc. for the location of generators. Pagel Table 4 -1 (Pg.14) It would be user friendly to define LUP, MUP, LTP, CUP, and ZC as footnotes in the table, for ease of reference. Additionally it would also be convenient to add a footnote or column that specifies the final determining body for each antenna class /proposed location, for ease of reference, reinforcement, and clarity. Again, Verizon Wireless would like to thank the City for keeping the wireless carriers, and other interested parties, apprised of the developments and progression of this proposed ordinance amendment, while allowing us the opportunity to provide our comments. We look forward to working with the City towards the successful completion of developing a sound ordinance; one that strikes an equitable balance between the wireless industry's need to meet the increasing coverage and capacity demands of their customers and networks, while protecting the residents, businesses and land uses of the City of Newport Beach. Best Regards, SonalThaku Authorized Representative of Verizon Wireless Page Comments 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. Lar!% wrmatma: rant. Nat Sold Chapter 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 20.49.080— 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 ?elecom 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) +— Telecom Facilities to be located in areas where adverse visual impacts on the community and public views are minimized. Page 11 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 -owned 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. Page 12 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 Page 13 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 Ill, 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 Page 14 "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 lust 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 Page 15 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. S. Class 4. 6. Class 5. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: Page 16 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. 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 - -5. 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.] 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. pale 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 evidence submitted 1, 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 practicable.- [Comment: Much is possible, but not always practicable]. 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. S. 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). lComment: 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.] 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 Page 18 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 for John Wayne Airport and Airport Land Use Commissioner L 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 Operator's 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- -- fComment: 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. Page 19 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 possible?] 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 fare these Prohibited ?l 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. S. 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 practicable: 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 N) 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 fe.e. 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« �-", , 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 etseq.). 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: Page 114 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 — of a CUP by the Planning Commission. jb)DAS 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. Ic) [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. Page 115 Antenna Class and Permit Requirement Class 1 Class 2 Class 3 Class 4 Class 5 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? but 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 — of a CUP by the Planning Commission. jb)DAS 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. Ic) [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. Page 115 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. Page 116 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 Page 117 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 processing a 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 (5 %) 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 required.. a discretionary review had the plan for the Telecom Facility depicted the modification <. 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. Removal by City. 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 anytime 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. Page 120 Code Amendment No. 2012 -004 Evolution of the Mobile Phone e Motorola Nokia Nokia Nokia Encsson AlcaW Samsung Apple Blacklierry Samsung 890OX -2 2146 3210 6210 T39 07511 E250 Phone Curve 8900 Galaxy S2 Planning Commission Study Session September 19, 2013 Samsung Galaxy S4 Sony Xpena Z Ultra 4��W�RJ ��Fp0.N� C 0 fen :`. •111914 Existing Ordinance Adopted in 2002 Change Happens More devices, more data, changes in law & case law Comprehensive update Update to reflect changes in law /case law Intended to balance needs of community by: og /ig /zoi3 Providing for increasing demand for wireless networks Mitigating the impacts of future telecom facilities Community Development Department - Planning Division Wackground Amendment initiated by City Council in March 2012 Planning Commission Study Session 9/o6 /2012 n, Commission requested: Increase use of administrative process • Simplify • Conduct outreach r Ordinance re- drafted in June 2013, comments received (attached to staff report) og /ig /zoi3 Community Development Department - Planning Division Defined 5 Antenna Classes Screened /Stealth Visible 3. Public Right -of -way 4. Freestanding Structure 5. Temporary Administrative process for Class i Zoning Administrator for most Class z locations, Class 3, and Class 5 Planning Commission for Class z is located near residential (or not) and Class4 o9 /1g /zoi3 Community Development Department - Planning Division Ordinance remains a work -in- progress r Staff plans additional revisions Additional stakeholder meeting (if desired) Public Hearing with Planning Commission October 17, 2013 (tentative) 09/19/2013 Community Development Department- Planning Division discussion ■ Discussion of Draft ■ Public Comments ■ Questions? 09/19/2013 Community Development Department - Planning Division For more information contact: James Campbell, Principal Planner 949-644-3210 jcampbelI@newportbeachca.gov www.newportbeachca.gov IV V 01 M NEWPORT BEACH PLANNING COMMISSION MINUTES CITY OF NEWPORT BEACH PLANNING COMMISSION MINUTES Council Chambers —100 Civic Center Drive Thursday, September 19, 2013 REGULAR MEETING 6:30 p.m. CALL TO ORDER - The meeting was called to order at 6:30 p.m. PLEDGE OF ALLEGIANCE — Vice Chair Tucker ROLL CALL PRESENT: Brown, Kramer, Lawler, and Tucker ABSENT: Hillgren (Excused), Ameri (arrived at 6:32 p.m.), and Myers (arrived at 6:31 p.m.) 9/19/2013 Staff Present: Brenda Wisneski, Deputy Community Development Director; Leonie Mulvihill, Assistant City Attorney; Marlene Burns, Administrative Assistant; Gregg Ramirez, Senior Planner; Jim Campbell, Principal Planner; and Melinda Whelan, Assistant Planner PUBLIC COMMENTS Vice Chair Tucker invited those interested in addressing the Planning Commission on non - agenda items to do so at this time. There being no response, Vice Chair Tucker closed the Public Comments portion of the meeting. REQUEST FOR CONTINUANCES - None ITEM NO. 1 MINUTES OF SEPTEMBER 5, 2013 Recommended Action: Approve and file Vice Chair Tucker noted written changes to the minutes as submitted by him and a member of the public, Mr. Jim Mosher. Commissioners Myers and Ameri arrived at this juncture. Secretary Kramer proposed additional changes to pages 10 and 11 of the minutes and read the changes into the record. Motion made by Vice Chair Tucker and seconded by Commissioner Lawler and carried (6 — 0), to approve the Minutes of the Planning Commission meeting of September 5, 2013, as corrected, and file. AYES: Amen, Brown, Kramer, Lawler, Myers and Tucker NOES: None ABSENT: Hillgren PUBLIC HEARING ITEMS ITEM NO. 2 216 CRYSTAL VARIANCE (PA2013 -118) Site Location: 216 Crystal Avenue Vice Chair Tucker reported that he owns property within five- hundred feet of the subject property, recused himself from hearing the matter and departed the Chambers. Page 1 of 11 NEWPORT BEACH PLANNING COMMISSION MINUTES Secretary Kramer called for a report from staff. 911912013 Assistant Planner Melinda Whelan provided a PowerPoint presentation addressing location, description of the project, variance request to exceed the floor area and encroachment into the side setback, existing parking and conditions, setbacks, comparison to typical lot in the block, floor /area ratio, access and circulation, findings and recommendations. Commissioner Ameri wondered if the additional square footage requested is typical within the area and Ms. Whelan reported that the project is a typical addition in the area and that variances have allowed for larger additions or complete teardowns for greater FARs. Secretary Kramer opened the public hearing. Art Kent of Kent Architects, offered to respond to questions from the Commission. Jim Mosher pointed out the hardship that the lot suffers because of the unusual configuration of the lot and addressed the rear setback. He added that the front yard is unusually large but that the back yard is smaller than normal. Secretary Kramer closed the public hearing. Secretary Kramer commented on previous approvals of similar variances and agreed with staffs findings. Commissioner Myers addressed typical lot setbacks in the neighborhood noting that they are three feet, not four feet and that the lot suffers deficiencies given its unusual configuration. Ms. Whelan confirmed that typical side setbacks in the neighborhood are three feet. Commissioner Brown stated support for the project and added that it appears the fagade of the building will be greatly improved. Motion made by Secretary Kramer, seconded by Commissioner Myers and carried (5 — 1), to adopt a resolution approving Variance No. VA2013 -005. AYES: Ameri, Brown, Kramer, Lawler, and Myers NOES: None RECUSED: Tucker ABSENT: Hillgren Vice Chair Tucker returned to the Chambers and took his place on the dais. VIII. STUDY SESSION ITEM NO. 3 WIRELESS TELECOMMUNICATIONS FACILITIES ORDINANCE (PA2012 -057) Site Location: City -wide Principal Planner Campbell provided a PowerPoint presentation addressing changes in the industry and laws and the need to change the ordinance accordingly. Additionally, he noted the intent to simplify the process and balance the needs of the community by providing for increasing demands for wireless networks while mitigating their visual impacts. He presented background and previous hearings by the Planning Commission. He pointed out that the draft ordinance in the staff report is the same that was issued in July of 2013, and reported that the document is a work in progress. He provided an overview of the changes including the new definition of five (5) antenna classes, the review authority, the use of an administrative process for Class 1, and review of Class 2 facilities by the Planning Commission, the existing ordinance, next steps, and the need for additional revisions to the ordinance. Page 2 of 11 NEWPORT BEACH PLANNING COMMISSION MINUTES 9/1912013 Vice Chair Tucker commented on the process at this time including receiving comments from telecommunications representatives. He indicated his intent to discuss each section and that he had provided his comments that were distributed this evening. Vice Chair Tucker invited those interested in addressing the Commission to do so at this time. Paul O'Boyle, Crown Castle, commented on key issues including the prohibition in residential zones. Jim Mosher commented on the complex process of drafting laws and expressed concern that a lot of input has been received from the industry, but very little from residents. He reported that the current ordinance was produced by a Media and Communications Committee and felt that the Planning Commission would be well -served in appointing a subcommittee or taskforce to review the ordinance, in depth, with more resident input. He stated that the existing ordinance protects private views, addressed case law in terms of control of telecommunications facilities and noted that the proposed ordinance is silent relative to whether a facility is necessary or not. Additionally, it is silent regarding what the applicant is supposed to submit as well as public notice versus zoning clearance and opportunities to appeal. Discussion followed regarding the typical number of applications received yearly, protecting private views, capacity and infrastructure, the concept of demonstrating that a proposed facility would be "necessary to fill coverage," and replacing old equipment. Assistant City Attorney Leonia Mulvihill commented on the term, "necessary to fill coverage" noting that the City exercises its police power to impose applicable local regulations and that in adopting the Telecommunications Act, the Federal Government states that while it recognizes the power of the City to regulate local zoning and design in development, it would be unlawful for a city to exercise that power where it would preclude the provision for communication. She reported that there is quite a market for going above - and- beyond what is necessary with new requirements in telecommunications such as storage and data. Discussion followed regarding the level of notice for zoning clearance, which is proposed for facilities that are not visible, and Mr. Campbell reported there are no noticing requirements for zoning clearance. He added that facilities requiring a use permit would be subject to public notice and a public hearing. Mr. Campbell stated that he not familiar with a provision in the current ordinance regarding protection of private views. Ms. Mulvihill noted that the City, generally, does not protect private views and that there are parts of the Zoning Code that address scenic and coastal view, but those are not private views. In the current ordinance there is language indicating a desire to have a facility blend in and be architecturally integrated, which is carried onto the proposed ordinance. Dean Brown, representing the California Wireless Association, introduced himself and other industry representatives, present. Regarding the section providing the overall purpose of the ordinance, Mr. Campbell addressed the term "modification" suggested in Vice Chair Tucker's comments but indicated acceptance to the proposed language in this section. Ethan Rogers, representing Mobilitie and Paul O'Boyle, representing Crown Castle were available for comments and suggestions. Mr. Brown felt that the initial statement in the ordinance should acknowledge the important role of the whole wireless infrastructure, mobile communications, internet and the role they play in the City's economy, job creation, productivity and public safety. It should also acknowledge that wireless infrastructure is a utility as defined by the California Constitution and should be permitted under similar circumstances as other utility infrastructure improvements. Vice Chair Tucker felt that the information is not needed in the ordinance and indicated wanting to focus on the regulatory aspect of the ordinance. Page 3 of 11 NEWPORT BEACH PLANNING COMMISSION MINUTES 9/1912013 Regarding Subsection C within the purpose, Mr. Rogers reported that sometimes, most efficient and least obtrusive technology can be two different pieces of technology and stated that it is difficult to apply that standard. Mr. Campbell noted the intent to screen the facilities and make them as least obtrusive as possible to minimize visual impact. Vice Chair Tucker suggested adding, "shall utilize to the maximum extent practical, the most efficient and least obtrusive technology." Mr. Campbell noted that the purpose and Subsection C is very similar to the ordinance currently in effect. Secretary Kramer objected to a line -by -line review of the ordinance at this time and suggested creating a working committee, including industry representatives to develop a final draft that could be presented to the Commission, subsequently. Vice Chair Tucker stated that he would like to proceed in order to get through the matter rather than have it return to the Commission. He felt that it would be beneficial to define the issues and give guidance at this time. Commissioner Ameri stated agreement with Secretary Kramer in that by the Commission reviewing the matter line -by -line, it is doing the work of staff. He suggested allowing input from industry representatives, allowing staff to review their comments and make appropriate changes to the document and return to the Commission with specifics. He indicated that the Commission's job is not to rewrite the regulations, but to review them and make a judgment regarding the overall ordinance. He felt that the subject matter should be limited to those things important to the Commission and the public. Vice Chair Tucker stated that is exactly what has already happened. Regarding Section 20.49.020, Mr. Campbell referenced Subsection B where Vice Chair Tucker suggests inserting "or modification" the first line and noted there are facilities that may have a minor change in the facility and require a simple permit. He suggested deleting that portion of the ordinance and commented about the ability for authorizing minor changes as long as they are in substantial conformance. If the changes do not conform, there are processes to modify the permit and bring it before the Commission. Regarding Section 20.49.020, Paragraph C, relative to exempt facilities, Mr. O'Boyle stated it refers to satellite dishes and ham radios and felt that exemptions should also be made for DAS technology. Mr. Campbell reported that the draft is not intended to exempt but rather to regulate DAS facilities. Vice Chair Tucker stated no changes to "all applicable City design guidelines and standards" noting the need to comply. Regarding Section 20.49.020, Paragraph F, Vice Chair Tucker stated it has to do with language clarity in terms of when the ordinance is applicable. Mr. Campbell stated he will include the effective date of the ordinance. Vice Chair Tucker addressed definitions and directed staff to clean them up as best as possible and to attempt to incorporate industry comments. He commented on Paragraph L and that defines an operator of a telecom facility noting that it needs to be clarified and that there are owners and tenant carriers. Mr. Dean Brown noted there can be multiple users on the same facility. In regards to the definition for "base station," Mr. Brown stated that it differs from the FCC's definition which includes the definition in Paragraph O, Support Equipment. He added that the FCC's definition includes support equipment in a base station. Ms. Mulvihill stated that the issue was raised previously and that it is not in conflict with the FCC and that staff has chosen to keep it as two definitions. Page 4 of 11 NEWPORT BEACH PLANNING COMMISSION MINUTES 9/1912013 Mr. Brown commended staff on the new classification system and reported that it meets the new, recently passed Federal law. Mr. O'Boyle referenced the definition of antenna array (B), which includes the vertical mass of the whole tower and that usually, when referencing the antenna array, it includes the antenna and the supporting equipment. Mr. Campbell observed that the ordinance has never distinguished between the antenna support equipment versus the antenna support. He added that care must be taken to not include a building in that definition but rather the "antenna support structure." He stated that staff will review the definition and clean it up as well as the definition related to the telecommunications operator. Regarding Section 20.49.050, Location Preferences, Mr. Brown stated the desire to serve all portions of the community, including residential areas. Vice Chair Tucker referenced prohibited locations. Mr. Campbell noted an error in the document where the intent is to prohibit facilities on traffic control standards, not street lights. They would be allowed on street lights. Additionally, Vice Chair Tucker wondered about prohibiting facilities in single -unit or multi -unit developments or open space. Mr. Campbell observed that this is a re- drafting of the existing policy of prohibited locations. Vice Chair Tucker wondered regarding applicability in all situations. Commissioner Brown wondered if telecommunications infrastructure might need to be on residential properties in order to meet the demands of residents. Mr. Dean Brown reported that it can be on the public right -of -way in residential areas. But, there are certain cases and uses that may be appropriate to locate them on private residential property. He added that there are a lot of sites on multi -level apartment buildings and that roof - located facility on those types of residential uses are allowed. Mr. Campbell reported that telecom facilities are allowed on multi - family units except when the density is below four. Mr. Brown noted there are larger single - family homes that may be topographically challenged and there may be opportunities in those areas to install stealth sites. Mr. O'Boyle stated that in order to cover residents, sites must be among them. He added that the City must specify criteria for different installations rather than "one size fits all." He referenced the ordinance in the City of Costa Mesa that specifies a tiered level of facilities. Commissioner Myers addressed the progression of equipment, the need for high -speed devices and felt that a prohibition in residential neighborhoods is self- defeating, particularly when topography is challenging. He agreed with Mr. O'Boyle that a predetermined size should be permitted to provide adequate cell coverage. Commissioner Lawler agreed with Commissioner Myers's comments. He wondered regarding safety concerns in residential areas. Mr. O'Boyle stated that the Distributed Antenna Systems (DAS) are installed on utility poles or on street lights. He added that the technology fits with sensitive architectural environments (i.e., Notre Dame). They are aesthetically pleasing and are designed to cover specific intersections and address both coverage and capacity. Page 5 of 11 NEWPORT BEACH PLANNING COMMISSION MINUTES 911912013 Ms. Mulvihill noted that what has happened in other cities, when there have been installations of telecommunications facilities in residential areas, there has been public resistance based on belief that the facilities emit microwaves that are harmful. However, the Federal Government has established that the safety or health -risk concerns are not an appropriate consideration for cities; that they believe there are no health risks and that is the standard at this time. She added that it would not be appropriate for the Commission to regulate based on perceived health risk. Commissioner Lawler felt that if aesthetics and size requirements are met, facilities should be allowed on single - family homes and densities below four. Mr. Campbell reported that facilities are allowed in residential districts within the public right -of -way. Allowing them in densities below four, would be a new direction for the City and would involve a change in policy. He added that it needs to be done in a way that is sensitive to the community. He felt that creating a standard would be difficult in that there are basically two competing technologies. He cautioned against creating a standard that has a bias for a particular technology. Vice Chair Tucker suggested reviewing the issue and having staff incorporate a broader allowance in residential districts. Regarding co-location installations and 1,000 foot separation, Mr. Brown noted that technology is going towards the use of smaller cell sites that cover approximately one - quarter mile and are within 1,000 feet of other sites. Mr. Campbell stated that the basic standard is in the current ordinance but is a little dated. He agreed that the trend is towards smaller facilities and that co- location may not be the best idea. He reported that it is a difficult thing to administer and that it is more applicable to larger Installations. Regarding Section 20.49.060, Mr. Brown referenced general development standards and reported challenges with high ground water. He stated that the City's undergrounding requirements of cabinets, especially in the public right -of -way, are a real issue and hoped for flexibility related to that. He addressed the requirement for flush - mounted vents and related losses due to major thunder storms. He hoped that the City could provide flexibility related to such conditions. Assistant City Attorney Mulvihill explained that there is a separate ordinance related to undergrounding utilities but staff is currently looking at those ordinances since there seems to be a desire to allow for certain above - ground facilities within certain sizes. If that is the case, that acceptance should be carried out in this ordinance as well. Mr. Campbell noted the requirement for undergrounding allows above -grade vents with a maximum height above grade for vents and he felt that flexibility is provided in the draft ordinance. Vice Chair Tucker encouraged staff and industry representatives to work together to address specific issues before returning to the Commission with a final draft. Mr. O'Boyle commented on 20.49.060 (A) regarding "least intrusive means," noting the importance of clear and specific articulation. He felt that as presented, DAS is called out for special treatment. Regarding (B), Public View Protection, he took issue with the term, "identified" and suggested using the term, "designated." Vice Chair Tucker noted that it is addressed in the General Plan with a specific policy. He added that while private views are not protected, public views are. He stated that public views are defined specifically, in the General Plan. Mr. Campbell added that there is a map in the General Plan that identifies public view sites and roads in different areas. He stated that if a public view is identified, it would be added to the General Plan to provide protection. Vice Chair Tucker indicated the need to not be precluded from adding other sites as they are identified. He would like the ability to add public view sites as applications are processed. Page 6 of 11 NEWPORT BEACH PLANNING COMMISSION MINUTES 9/1912013 Mr. O'Boyle commented on Paragraph C4, regarding a minimum height of antennas and average service adding that the desire is to provide above - average service. Vice Chair Tucker agreed that the City wants effective service versus average service. Mr. O'Boyle noted that maximum height of antennas on utility poles is generally, thirty -five (35) feet. He stated that it precludes specifically- designed cell sites (pole -top mounts). He felt there should be more flexibility to allow for pole -top mounts, as needed. Additionally, there are situations that additional height is needed for safety issues and to meet a minimum of six -foot separations between zones on poles. Vice Chair Tucker noted the desire to fit within the current infrastructure. Mr. Rogers commented on problems with the terms, "effective service" and "average service" and resulting restrictions. He felt that the maximum height limits are sufficient. Vice Chair Tucker understood the goal to be the least visually intrusive. He added that different language should be used relative to the term, "hide." Mr. O'Boyle addressed Paragraph E, Design Criteria, felt that the term, "surrounding area" is general and suggested replacing it with "adjacent properties." He referenced E, Paragraph 5, relative to the "size as determined by the City" and agreed with the statement as presented as well as the issue of screening. Additionally, he addressed replacement poles and questioned the use of the term, "consistent" and commented on FCC standards for the same. Jim Mosher commented on comparisons of wireless ordinances from other cities and wished that it had been presented publicly. He stated that staff is recommending changing the five categories to three and agreed with that recommendation. He commented on public view protections and noted that there is minimal consideration in the City of private views and that telecommunication facilities can be installed in a myriad of places with added flexibility. He referenced the purpose of the ordinance as originally stated that he felt gives consideration of private views and the proposed ordinance does not as amended. He commented on the need for the applicant to submit coverage maps and visual simulations and the need to consider views from public areas and private residences. Additionally, he commented on the need to refer applications for special review because of the potential of those applications for greater than usual visual or other impacts on nearby property owners, residences and businesses, and findings required for Council action. Regarding 20.49.070, Mr. Brown addressed Section G regarding Emergency Communication Review, and stated that it has been determined that wireless infrastructure does not interfere with emergency communications and there is no necessity of going through a pre - application review with the Police and Fire Departments. Mr. O'Boyle commented on the DAS exemption and referenced Table 4.1, Paragraph B, regarding allowing installation of DAS subject to an issuance of a zoning clearance. He wondered how DAS would be treated in terms of the process. Mr. Campbell indicated the need to review the issue closely. He reported that the Planning Commission would review Conditional Use Permits while zoning clearance would be reviewed administratively by staff. Minor Use Permits would be considered by the Zoning Administrator, unless appealed. He noted difficulty in understanding the table 4 -1 in the current draft and suggested the possibility of the Planning Commission reviewing new free standing structures and that it would simplify the process. Commissioner Myers referenced a chart that showed where the Planning Commission was involved. Mr. Campbell reported that the presentation was based on Table 4 -1 and felt that it needs to be reviewed and modified. He requested input regarding what the Planning Commission would like or need to review and suggested that it be Class 4 facilities. He added that it can be tailored, depending on the Planning Commission's desire. Page 7 of 11 NEWPORT BEACH PLANNING COMMISSION MINUTES 9/1912013 Vice Chair Tucker expressed reservation about placing facilities in residential areas while acknowledging the need for coverage. Mr. Campbell suggested sending all Class 2 facility applications to the Zoning Administrator. He would prefer not having a standard based on visibility of a facility since that is a subjective criterion. Vice Chair Tucker added that the Zoning Administrator has the option of referring items to the Planning Commission. Commissioner Brown commented on the pre - application issue and Mr. Brown confirmed it is included in 20.49.070 (G). Mr. Brown added that typically, most jurisdictions required that telecommunications equipment not conflict with emergency communication channels. He stated that the Orange County Fire Authority no longer reviews applications. Mr. Campbell stated that staff will review the matter and consult with the Police and Fire Departments. Ms. Mulvihill noted that it is a historical requirement and agreed with the need to review the matter with the Police and Fire Departments to ensure that there are no scenarios where there could be interference. Regarding 20.49.100, Modifications to Existing Telecommunications Facilities, Mr. O'Boyle noted issuance of a zoning clearance up to five (5 %) percent of the physical increase of dimensions adding that the provision is not consistent with the FCC, which is ten (10 %) percent. Ms. Mulvihill felt that the FCC has not mandated the matter and that staff will review the issue to ensure consistency with the FCC. Regarding 20.49.110, Mr. Brown stated working with jurisdictions and wireless providers throughout the State and has never come across a situation where radio frequency emissions exceed Federally- adopted standards. If they do, the FCC could revoke a provider's license and noted that over the last years, emissions have decreased substantially because of network infrastructure expansions. He addressed FCC categorically excluded rulings and felt that the provision should be excluded from the ordinance. Mr. Campbell indicated that staff will review the issue and that it is not the intent to regulate emissions but is simply asking that applicants demonstrate compliance with FCC requirements. Commissioner Brown offered that it may just be a language issue. Mr. O'Boyle added that DAS facilities emit less than one -half of one percent of the allowable FCC regulations. Regarding 20.49.060, Mr. Rogers referenced a prohibition against false rocks unless there are other rock outcroppings and compared it to mono -poles and faux trees, adding that the prohibition makes little sense. Vice Chair Tucker directed staff to review the matter. Mr. Campbell reported that the intent is not to create a natural feature that is out of place. In response to an inquiry from Commissioner Ameri, Mr. Brown reported that his organization covers many jurisdictions, addressed moratoriums in place and others going through updates because of the new Federal Law requirements. Mr. Brown reiterated concerns about providing coverage in lower- density residential zones and provided information regarding how the issue is addressed in other jurisdictions. Mr. O'Boyle added that one size does not fit all and felt that a tiered system, based upon size, would be helpful. Mr. Brown noted that the industry is trending towards smaller facilities Page 8 of 11 NEWPORT BEACH PLANNING COMMISSION MINUTES 911912013 In response to Commissioner Ameri's inquiry regarding practices by other cities, Ms. Mulvihill reported that it is staffs practice to survey other cities and their practices and commented on the City of Huntington Beach noting that she drafted their ordinance, which was challenged by some of the carriers. While she understands the concerns of the carriers, she stated that the City wants to provide coverage, that there are distinctions regarding rights to be in the right -of -way and court decisions. The ordinance is drafted with respect to local zoning while acknowledging the possibility of litigation. Jim Mosher addressed the permit review procedure and exemptions regarding submitting DAS to the Zoning Administrator. He stated that the public has a fundamental right to know what the government is doing and felt that the issue is unfair to the public. He noted that the public has the right to appeal the decision of the Planning Division if they do not agree with it but the right is useless if they are unaware that a decision has been made. He hoped that the Planning Commission would pay attention to the findings it must make when an application goes before it. He felt that the first two findings are redundant. He addressed visual compatibility, avoiding placing facilities on public facilities, the five (5 %) percent rule and avoiding placing them on traffic standards. Regarding the latter, he felt that facilities would be less obtrusive by placing them on poles found in intersections. Mr. Campbell addressed co- location and explained the need to avoid an issue where telecom facility maintenance might impact traffic signal operation. He added that the Public Works Department is adamant about not having facilities installed on traffic control standards. Vice Chair Tucker closed public comments for this item. He added that the matter will be continued to the Planning Commission meeting of October 17, 2013, and wondered if the Commission should have input from others that understand the technicalities better. Assistant City Attorney Mulvihill reported that the decision to revisit the ordinance came from the Media and Telecommunications Committee and was based on public comments received in early 2010. At that time, it was not addressed as a zoning matter but was through a telecommunications permit process through Council. She added that ultimately, the issues raised by industry representatives are policy decisions to be made by the Planning Commission. Vice Chair Tucker felt that the ordinance can be set up but stated that he would be more comfortable if the matter were reviewed by someone that understands the technicalities. Ms. Mulvihill reported that the City retained telecommunications experts and that from staffs perspective; staff feels comfortable with the matter. Secretary Kramer felt that the residential issue was not resolved. Vice Chair Tucker commented on wanting staff to review the issue, offer appropriate language and define the specific issues. He felt that the revised draft should address most of the issues of concern. Commissioner Brown agreed and felt that staff is very close to providing an acceptable final draft. Commissioner Ameri noted that the Commission should not be involved in the technicalities but review the item based on land -use issues and those that affect the community. He felt there is a danger of the Commission being overwhelmed with technical issues. Members of the Commission agreed to continue this matter to the Planning Commission meeting of October 17, 2013. Page 9 of 11 NEWPORT BEACH PLANNING COMMISSION MINUTES 911912013 Ix. ITEM NO. 4 LAND USE ELEMENT AMENDMENT (PA2013 -098) Site Location: City -wide Deputy Community Development Director Brenda Wisneski provided a PowerPoint presentation highlighting the proposed changes reviewed by the Committee, to date, as well as next steps. She addressed the objective of the Land Use Element Amendment Advisory Committee, the consideration by the Committee of policies, study areas and categories. She addressed specific properties reviewed and determinations regarding development capacities. She reported that the Committee will be reviewing policies which will drive revitalization of the various areas. She addressed requests from the airport area, including an increase in residential developments in the area. Additionally, she reported that the Committee will consider whether additional trips should be generated to facilitate new projects as well as looking at the area more comprehensively. She addressed unresolved issues related to Lower Castaways and The Irvine Company properties and detailed next steps. Vice Chair Tucker commented on the last meeting of the Committee where projects in the airport area were considered. He provided a summary including the Lyon property, the Saunders property, the Hangers and a request by Fletcher Jones. In response to an inquiry from Commissioner Kramer regarding Fletcher Jones's interest in the land, Vice Chair Tucker reported that the development was done on a footprint- basis lot noting that the footprint of each building is a parcel and that all the common areas are a separate parcel. He reported that land -use changes for 40,000 square feet or more must be put to a vote. He referenced an Environmental Impact Report (EIR) that supports the General Plan update. He commented on the Saunders project and avoiding restrictions regarding development and noted that the airport area proposals are works in progress. Commissioner Myers departed the Chambers at this juncture (9:16 p.m.). Discussion followed regarding studying the airport area separately and the need for Council to review the matter because of added trips. It was suggested that the Commission recommend to Council having this particular part of the matter as its own study. Vice Chair Tucker noted that it is Council's decision, that the goal was tip neutrality and that Council needs to decide if there are any circumstances in which trip neutrality would not be a goal. He felt that it should be studied, for CEQA purposes, as not neutral. Vice Chair Tucker addressed the issue of traffic neutrality and noted that each intersection will have to be included in the traffic study. Commissioner Ameri commented on traffic neutrality City-wide, extra capacity and developing a reasonable distribution by relieving traffic. Vice Chair Tucker suggested studying as broadly as possible while still meeting the time horizon to place the matter on the ballot in 2014. Commissioner Amed added allowing the consultant to study the City's overall traffic but also traffic generated or anticipated by adjacent cities. He felt there needs to be an emphasis on the matter and needs to be considered carefully. Vice Chair Tucker reviewed speck projects and properties, items considered by the Committee, related recommendations and specific issues needing additional study. He added that policy revisions will occur within the next several months. He reported endorsing what the Committee has decided to this point with no opinion on the airport area at this time. Ms. Wisneski reported that no formal action is needed. Interested parties were invited to address the Commission on this matter. There was no response and Vice Chair Tucker closed public comments. Page 10 of 11 NEWPORT BEACH PLANNING COMMISSION MINUTES X. STAFF AND COMMISSIONER ITEMS ITEM NO. 5 MOTION FOR RECONSIDERATION - None ITEM NO. 6 COMMUNITY DEVELOPMENT DIRECTOR'S REPORT Committee Updates: Land Use Element Amendment Advisory Committee 2. General Plan /Local Coastal Program Implementation Committee 9/19/2013 Ms. Wisneski reported that the General Plan /Local Coastal Program Implementation Committee meets next Wednesday, September 25, 2013. Additionally she reported that the Planning Commission's decision regarding Woody's Wharf was called up for City Council review and is scheduled for October 8, 2013. In addition, Council introduced the ordinance to modify the findings for lot mergers, as the Planning Commission recommended. ITEM NO. 7 ANNOUNCEMENTS ON MATTERS THAT THE PLANNING COMMISSION MEMBERS WOULD LIKE PLACED ON A FUTURE AGENDA FOR DISCUSSION, ACTION, OR REPORT - None ITEM NO. 8 REQUESTS FOR EXCUSED ABSENCES Vice Chair Tucker reported that he will be absent for the next meeting of the Planning Commission. XI. ADJOURNMENT There being no further business to come before the Planning Commission, the meeting was adjourned at 9:31 p.m. The agenda for the Regular Meeting was posted on September 13, 2013, at 4:00 p.m., in the binder and on the City Hall Electronic Bulletin Board located in the entrance of the Council Chambers at 100 Civic Center Drive. Kory Page 11 of 11 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT October 17, 2013 — Study Session Agenda Item No. 2 SUBJECT: Wireless Telecommunications Facilities Ordinance Update (PA2012 -057) • Code Amendment No. CA2012 -004 PLANNER: James Campbell, Principal Planner (949) 644 -3210, iampbell onnewportbeachca.00v PROJECT SUMMARY An amendment to the Newport Beach Municipal Code ( "NBMC ") to update regulations regarding wireless telecommunication facilities ('Telecom Facilities "). Regulations currently contained in Chapter 15.70 would be updated and relocated to Title 20 (Planning and Zoning) and Chapter 15.70 would be rescinded in its entirety. RECOMMENDED ACTION Provide direction to staff. The Planning Commission conducted a study session on September 19, 2013. During the meeting, the Commission discussed the draft ordinance in detail while receiving input from several wireless telecommunications industry representatives. Based on the dialog, staff has identified the following issues for further discussion and direction. 1. Telecom Facilities in Residential Areas - §20.49.050(B) The wireless telecommunications industry has requested the possibility to locate facilities in residential areas (R -1 and R -2 zones) where they are presently prohibited. At the request of the Commission, staff has examined the issue and recommends no change to the current prohibition. Many cities prohibit wireless telecommunications facilities in residential zones. Some permit them subject to specific development standards (e.g., setbacks, height, etc.) and discretionary review consisting of a conditional use permit or minor conditional use permit. For example, Irvine allows wireless telecommunications facilities in residential zones provided that minimum setbacks are met and facilities are separated from each other. Setbacks from residential uses are measured from the facility to property lines and they range between 50 to 300 feet depending upon the classification of the facility: more visible facilities are setback farther and setbacks do not apply to facilities in the public right -of -way. In Newport Beach, opportunities to locate telecommunication facilities within low density residential areas is presently provided within the public right -of -way, nearby non - residential or Wireless Telecommunications Facilities Ordinance (PA2012 -057) October 17, 2013 — Study Session Page 2 multi - family property, or in association controlled open space parcels (i.e., clubhouses or landscape parcels). Question: Should the City consider allowing broader access to residential areas? Recommendation: Maintain regulation limiting location in R -1 and R -2 zones. 2. Collocation - §20.49.050(D) The City's ordinance in effect since 2002, requires new facilities to attempt to collocate with existing facilities when proposed within 1,000 feet of an existing facility. Additionally, facilities permitted pursuant to the ordinance must also accept a future collocated facility. Wireless industry representatives have requested elimination of the current collocation requirements as they struggle to comply and often it is infeasible to collocate. Barriers include prior facility operator or property owner resistance, regulatory limitations, physical constraints, and clearance requirements. Current collocation requirements were a product of the times when freestanding structures were commonplace coupled with a desire to minimize the number of installations. Compliance with the collocation requirements necessitates significant effort by applicants and staff to investigate collocation possibilities and potentially determine whether or not it is feasible. Antennas are often much smaller today and can be hidden behind architectural screens or can be installed on streetlights. As antennas have become smaller and screened, collocation becomes increasingly difficult to implement or irrelevant. Today, State and federal law encourage collocation by mandating ministerial review and the elimination of the ability to deny a request for collocation. For these reasons, staff recommends eliminating the collocation requirement entirely. Question: Should the City eliminate current collocation requirements? Recommendation: Eliminate collocation requirement. 3. Public View Protection - §20.49.060(B) The proposed draft update requires an evaluation of the potential impact to public views from General Plan identified public vantage points. The Commission expressed a desire to expand the standard to include other public views. This potential change is in keeping with the Natural Resources Goal NR20 to preserve significant visual resources and the overall goal of the telecom ordinance to minimize visual impacts of telecommunications facilities. Staff will modify the language to include other public views. In practice, a potential applicant will need to consult with staff prior to filing an application where staff can provide guidance in identifying important public views for consideration when they are not identified by the General Plan. Question: Confirm additional provisions needed to address public views. Recommendation: Include additional provisions. Wireless Telecommunications Facilities Ordinance (PA2012 -057) October 17, 2013 — Study Session Page 3 4. Height - §20.49.060(C) The current ordinance allows Telecom Facilities at the upper height limit of the zoning district, with an additional 15 feet with City Council approval. There is no ability to go higher. The current draft ordinance would have allowed facilities to be 5 feet above the base height limit with taller facilities requiring a Variance. Staff believes further change is warranted and recommends the upper height limit with requests to exceed this limit falling into two categories; 1) facilities up to 15 feet higher than the upper limit being subject to a Conditional Use Permit ( "CUP "), and 2) facilities higher than 15 feet above the upper height limit would require a Variance. Question: Should the City maintain existing height limits and introduce the Variance process for proposed facilities taller than 15 above the upper height limit? Recommendation: 1) CUP for facilities up to 15 feet above the upper height limit of a zoning district, and 2) Variance for facilities taller than 15 feet above the height limit. The proposed draft update also introduces a new regulation that would require facilities to be installed at the minimum height to achieve an "average" coverage. A higher than average standard is likely desired by the community and based on the subjectivity of determining what a particular standard of coverage might be leads staff to recommend eliminating this concept. Objective height limits are established by the various zoning districts. Screening would be required by the ordinance and /or the review authority through the Zoning Clearance, Minor Use Permit ( "MUP "), or CUP process. Question: Should height be evaluated on the standard of coverage being provided? Recommendation: Eliminate this provision. 5. Emergency Communications Review - §20.49.070(G) Industry representatives indicated that the Orange County Fire Authority does not review new installations for interference and that there is no need to require the review. Many systems do not have a significant potential to interfere with emergency communications due to adequate separation of frequencies; however, some systems operate on frequencies close to emergency communications equipment and their potential location can be a factor. Staff contacted representatives from both Newport Beach Police and Fire Departments and they do not recommend eliminating public safety review of new or altered facilities. Question: Should review by the Newport Beach Police and Fire Departments be required? Recommendation: Review should be required. 6. Modification of Existing Facilities - §20.49.100 Staff proposes a five percent threshold of change of existing facilities where the Zoning Clearance (non- discretionary) process would be used. Requests to modify an existing facility greater than five percent would require the same review process as a new facility (i.e., Zoning Wireless Telecommunications Facilities Ordinance (PA2012 -057) October 17, 2013 — Study Session Page 4 Clearance, MUP or CUP depending on the classification of the facility). Wireless telecommunications industry representatives have requested the City use previously issued Federal Communications Commission ( "FCC ") guidelines that (in part) suggest a ten percent standard for an increase in height. Staff is concerned that a ten percent standard could result in an excessive increase and detrimental to an area or public view. Question: Should the threshold for requiring discretionary review to modify an existing facility be five percent or ten percent? Recommendation: Establish threshold at five percent. 7. Radio Frequency ( "RF ") Compliance Report -§20.49.110 The telecommunication industry recommends the City no longer require submittal of RF Compliance Reports. Many communities do not require an RF Compliance Report and rely upon the FCC to "police" licensed facilities. Staff understands that the FCC does not specifically require an independent compliance report unless there is evidence of non- compliance. Out of caution, staff does not recommend eliminating the RF Compliance Report for new or altered facilities. Question: Should RF Compliance Reports be required? Recommendation: Yes, RF Compliance Reports shall be required. Pending FCC Rulemaking On September 26, 2013, the FCC issued a Notice of Proposed Rulemaking that is expected to clarify how federal law applies to the City's ability to regulate wireless telecommunications facilities. Based upon what is known about the proposed draft rules, staff is concerned that the City's ability to appropriately regulate facilities to avoid visual impacts may be jeopardized. The rulemaking process has just begun and the FCC is requesting feedback before actually publishing proposed rules. Staff will monitor FCC progress report as necessary. Next Steps Based upon Commission direction and public feedback, staff will prepare a final revised draft ordinance that will be published in advance of a future public hearing to allow for review and comment. Prepared by: Submitted by: T_V_J C i J es Campbell, Principal Pla ner , Deputy Director Public Comments Item No. O.Od Planning Commission Meeting October 17, 2013, Planning Commission Aof da3Comments Comments by: Jim Mosher ( iimmosher a)vahoo.com ), 2210 Private Road, Newport Beach 92660 (949- 548- 6229). Item No. 1 Minutes of October 3, 2013 These are good minutes, and I could detect no typos, but I have one comment. Page 1: The draft minutes say "The meeting was called to order at 6:30 p.m." My recollection is the meeting may, due to unusual circumstances, have inadvertently started a minute or two before 6:30. 1 mention this because out of the respect to members of the public who may be rushing to get to the Council Chambers at the appointed hour, it can be extremely frustrating to enter the room at that hour and find the meeting already in progress. Item No. 2 Wireless Telecommunications Facilities Ordinance Update I find this item somewhat difficult to comment on because at the September 19 study session, Vice Chair Tucker, and others, made a number of suggestions, and in the absence of a revised draft ordinance, I am uncertain (aside from the questions listed in the present staff report) which of those changes staff may be considering incorporating, and which not. Although I think the proposed ordinance is generally an improvement over the present one, I continue to have several concerns (repeated with slightly more detail below): Concern 1 (Addressing Private Impacts): It appears that the existing ability to deny an application based on a proposed facility's impacts on nearby private properties is being written out of the existing code. Since I have not heard such a change is compelled by state or federal law, I have to question whether doing this is in the best interest of Newport Beach property owners. I suppose that those who favor unregulated deployment of wireless transmitters could argue that such criteria make approvals more difficult, and therefore should be avoided, but I think it is a change whose wisdom should be carefully weighed. Concern 2 (Universal Noticing): Although by incorporating the wireless provisions into the Zoning Code the noticing to the public of pending approvals is greatly improved over the current system, I am troubled by the proposed use of the Zoning Clearance (ZC) mechanism for certain classes of applications. The problem with the ZC procedure is that although the staff decision can be appealed to the Commission, since no notice is provided, only the wireless applicant is aware a decision has been made. This potentially deprives the public of its opportunity to question not only the substance of the application, but also whether staff's decision to process it under the ZC provisions was appropriate. For those who believe citizens should retain control of the mechanisms of government, this is troubling. Concern 3 (Learning from Others): Since staff is inundated with suggestions from the industry, I think the ordinance drafting process might profit from a more careful and systematic study of how similar issues have been dealt with in California cities with citizen friendly telecom ordinances. One assumes this has been done internally by staff, but the extent of that is unknown, and I think that in considering the possible language to be used in the draft ordinance, the Commission might want to see the comparable text from other city's ordinances. October 17. 2013 Planning Commission agenda comments - Jim Mosher Page 2 of 4 Addressing Private Impacts In my view, telecom applications are fundamentally different from most zoning decisions because the applicant is not proposing to build on a limited and restricted piece of land they already own and wish to develop, but rather is seeking approval of a suitable site for development from a wide range of possible locations. Hence the rights being impinged on by a denial are quite different. Since it came up at the September 19 Planning Commission study session, the specific protections enjoyed by private land owners under the current system that I see being written out of the proposed code range from the subtle: The existing Subsection 15.70.010 (Purpose and Intent) "A. Purpose. The purpose of this chapter is to provide for wireless telecommunication ( "telecom') facilities on public and private property consistent with federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal views, and otherwise mitigating the impacts of such facilities." and "3. Encourage telecom facilities to be located in areas where adverse impacts on the community and on public views are minimized." which can be read as protecting views (of the types cited) and avoiding impacts, whether to public or private properties; has been changed by inserting the word "public" in a new place to imply there is no private protection: Proposed Subsection 20.49.010 (Purpose) "A. The purpose of this Chapter is to provide for wireless telecommunication facilities ( "Telecom Facilities') on public and private property consistent with state and federal law while ensuring public safety, reducing the visual effects of telecom equipment on public streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating the impacts of such facilities." to the more obvious deletions of the following existing provisions: 15.70.070 Permit Review Procedures. B. Submission Requirements. "4. Visual Simulations. Visual simulations showing "before "and "after" views of the proposed facility, unless the reviewing department director determines that such simulations are not necessary for the application in question. Consideration shall be given to views from both public areas and private residences." C. Review Process 3. Director's Action. "c. if the Director determines that conformity to standards are in doubt, he or she shall refer the application to the City Council for special review under the procedures set out in subsection (F) of this section." F. Special Review by Council 1. Applicability "c. Any telecom application which the department director determines requires special review in order to serve the public interest." October 17, 2013 Planning Commission agenda comments - Jim Mosher Page 3 of 4 3. Council Action. "The City Council shall take action on the telecom permit within sixty (60) days after the determination that the application is complete. Applications subject to special review may be approved by the City Council if it makes the following findings: b. The approved facility will not result in conditions which are materially detrimental to nearby property owners, residents, and businesses, nor to public health or safety." As best I can tell the above is all proposed to be reduced to single required finding (in proposed Subsection 20.49.070.1.1 that "a. The proposed Telecom Facility is visually compatible with the surrounding neighborhood." Together with the revised purpose of the code, this could be read as only requiring "visual compatibility" from public spaces. It might be noted there are existing provisions in Newport Beach Municipal Code Title 13 (Streets, Sidewalks and Public Property), that apparently are not being proposed to be deleted at present, but which also appear to be intended to protect private property owners from the impacts of above ground facilities constructed in the public rights of way. In particular, in Subsection 13.20.070.B, the criteria the Public Works Director is supposed to consider in issuing a PROW Permit include "3. The damage or disruption, if any, to the PROW or any public or private facilities, improvements, aesthetics, services, pedestrian or vehicle travel or landscaping if the permit is granted." and "5. The adverse aesthetic or blighting effect of any above ground facilities by virtue of their design, color, dimensions, locations and quantity." The City also protects private property from growth of City -owned trees in City Council Policy G -3 (Preservation of Views). Universal Noticing Although somewhat different from the procedure in the present Zoning Code, I personally think the noticing should begin as early as possible in the application process, and not be deferred to the approval stage. I think the Coastal Commission model is a good and very practical one, in which the applicant is required to place a yellow public notice of the pending permit on the proposed development site at the same time the application is submitted. I believe examples of other cities with earlier and more rigorous public participation can be found, and that the results probably benefit from that participation. Learning from Others As a small sample of what can be learned from the response to wireless concerns in other communities, I found interesting the following findings underlying a wireless ordinance adopted in Burbank two years ago, which I think articulate the fear of many that inadequately regulated wireless deployment (allowing unscreened towers, etc.) can give an "industrial' feel to a community: October 17, 2013 Planning Commission agenda comments - Jim Mosher Page 4 of 4 THE COUNCIL OF THE CITY OF BURBANK FINDS A. The industrial appearance of Wireless Telecommunications Facilities (WTFs') is inconsistent with the general landscape and character of the community. The visual blight created by poorly sited WTFs disrupts the residential character of the neighborhood and detracts from the natural beauty and historical integrity that is valued by the City and its residents. B. Residents have moved to the City for its aesthetics and rely on the City to preserve its unique characteristics. Residents do not want to live in neighborhoods where WTFs have been indiscriminately erected. Residents expect the development of their community to occur in a consistent and predictable manner. C. The harm of WTFs to the aesthetics of the City negatively impacts the views of residents and may devalue property as communities blemished by unregulated WTFs may be perceived as undesirable. D. Poorly sited WTFs may also become a distraction to motorists by obstructing driver's sightlines and thereby create a hazard to motorists. E. Thoughtful regulation of the aesthetic aspects of WTFs can alleviate the adverse effects that such facilities have on the community. Hopefully our new ordinance will adequately address concerns of this sort. CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT November 21, 2013 Agenda Item No. 4 SUBJECT: Wireless Telecommunications Facilities Ordinance Update (PA2012 -057) • Code Amendment No. CA2012 -004 PLANNER: James Campbell, Principal Planner (949) 644 -3210, icampbell(@newportbeachca.Qov PROJECT SUMMARY An amendment to the Newport Beach Municipal Code ( "NBMC ") to update regulations regarding wireless telecommunication facilities ('Telecom Facilities "). Regulations currently contained in Chapter 15.70 would be updated and relocated to Title 20 (Planning and Zoning) and Chapter 15.70 would be rescinded in its entirety. RECOMMENDED ACTION 1. Conduct a public hearing; and 2. Adopt the attached resolution recommending City Council approval of the proposed update of the Wireless Telecommunication Ordinance (CA2012 -004) (Attachment PC -1). The amendment relocates telecom regulations from Title 15 (Building and Construction) to Title 20 (Zoning). The amendment will provide a balanced review process consistent with existing procedures provided within the Zoning Code. Proposed telecom facilities that are not visible will be permitted by the Zoning Clearance process. Proposed telecom facilities that would be visible, including proposed installations within the public right -of -way, will require a Minor Use Permit, A Conditional Use Permit will be required if a new free standing structure is proposed. The proposed amendment also does not increase the potential height of telecom facilities and does not allow them in areas where they are currently prohibited. The amendment includes development and screening standards to ensure that future telecom facilities are visually compatible with the community. Lastly, the proposed amendment includes provisions reflective of state and federal law that require administrative review of minor modifications to, or the collocation of, existing telecom facilities. The Planning Commission conducted two study sessions in 2012, and two recently, one on September 19, 2013, and the other on October 17, 2013. During the meetings, the Commission discussed the proposed update and provided direction to staff. Based on the dialog, staff updated the draft ordinance (Attachment PC -2) while making the following changes that were not previously discussed: 1. Changed the term "Antenna Class" to "Facility Class" (see Section 20.49.030(G) on page 8 of the draft resolution). Wireless Telecommunications Facilities Ordinance (PA2012 -057) November 21, 2013 Page 2 2. Included a provision to strongly discourage new lattice towers and monopoles. Staff included a statement that the preferred design for a monopole is where antennas are not visible (see Section 20.49.050(F)(4)(a) on page 13 of the draft resolution). 3. Included a provision to strongly discourage artificial trees or shrubbery since they cannot presently be made to resemble natural vegetation in a sufficiently believable and realistic fashion and such attempts to replicate nature in the wrong setting increase, rather than reduce, visual blight (see Section 20.49.050(F)(4)(d) on pages 13 and 14 of the draft resolution). 4. Eliminated the paragraph within the Radio Frequency "RF" compliance report section referring to an independent RF engineer to review the reports. Staff presently reviews the reports and does not foresee the need to hire an independent consulting engineer to review RF compliance reports (see Section 20.49.100 on pages 19 and 20 of the draft resolution). ENVIRONMENTAL REVIEW This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. NOTICE Notice of this amendment was published in the Daily Pilot, including an eighth page advertisement, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website and a notice of this item was mailed to the community associations of Balboa Island, Balboa Peninsula, Corona del Mar, Lido Isle, and West Newport. Prepared by: W Jap9es Campbell, Principal Plariner Attachments Submitted by: fro PC -1 Draft Resolution with Updated Regulations PC -2 Update of draft Chapter 20.49 with marked changes ATTACHMENT PC -1 Draft Resolution Page Intentionally Blank RESOLUTION NO. #### A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING CITY COUNCIL ADOPTION OF CODE AMENDMENT NO. CA2012 -004 RELATED TO THE REGULATION OF WIRELESS TELECOM UN[CATIONS FACILITIES (PA2012 -057) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. On March 27, 2012, the City Council initiated an amendment of the Municipal Code to comprehensively update the City's wireless telecommunications facilities ordinance. 2. The Planning Commission conducted study sessions on July 19, 2012, September 6, 2012, September 19, 2013, and October 17, 2013, where potential changes to the ordinance were discussed. 3. A public hearing was held on November 21, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. SECTION 3. FINDINGS. 1. The proposed amendment will provide a balanced review process consistent with existing procedures provided within the Zoning Code (Title 20). Proposed telecom facilities that are not visible will be permitted by the Zoning Clearance process. Proposed telecom facilities that would be visible will be subject to either a Minor Use Permit or a Conditional Use Permit if a new free standing structure were proposed. 2. The proposed amendment does not increase the potential height of telecom facilities and does not allow them in areas where they are currently prohibited. 3. The proposed amendment includes adequate development and screening standards to ensure that future telecom facilities are visually compatible with the community. Planning Commission Resolution No. 20121 4. The proposed amendment includes provisions reflective of State and federal law that require administrative review of minor modifications to, or the collocation of, existing telecom facilities. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby recommends approval of Code Amendment No. CA2012 -004 as set forth in Exhibit "A." PASSED, APPROVED AND ADOPTED THIS DAY OF 2013. AYES: NOES: ABSTAIN ABSENT: 1 Y Bradley Hillgren, Chairman BY: Kory Kramer, Secretary Planning Commission Resolution No. 3OT21 EXHIBIT A Code Amendment No. CA2012 -004 Section 1: Chapter 15.70 of the Newport Beach Municipal Code is hereby repealed. Section 2: Table 2 -1 within Section 20.18.020 (Residential Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -1 remaining unchanged: Section 3: Table 2-4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2-4 remaining unchanged: R -A R -1 R -BI RM Specific Use Specific Use R -2 RMD Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication CUP /MUP/ Chapter Telecommunication MUP /CUP /LTP Chapter 20.49 Facilities LTP LTP LTP LTP Section 3: Table 2-4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2-4 remaining unchanged: Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: OA OG OM OR Specific Use Specific Use Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication CUP /MUP/ Chapter Telecommunication LTP Chapter 20.49 Facilities LTP LTP LTP LTP Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: CC CG CM CN CV Specific Use Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Chapter Telecommunication LTP LTP LTP LTP LTP 20.49 Facilities Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Planning Commission Resolution No. tine WAI Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Mu -V MU -MM (6) MU -DW MU -CV /15th Specific Use MU -W2 Regulations Wireless CUP /MUP/ St. (7) Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ LTP Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities LTP LTP LTP LTP Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: MU -W1 Specific Use Specific Use IG (5)(6) MU -W2 Regulations Wireless CUP /MUP/ CUP /MUP/ Chapter 20.49 Telecommunication LTP CUP /MUP/ Chapter 20.49 Facilities LTP LTP Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use IG Regulations Wireless CUP /MUP/ PF Telecommunication PR Chapter 20.49 Facilities LTP CUP /MUP/ Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use Os PF PI PR Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication Chapter 20.49 Facilities LTP LTP LTP LTP Planning Commission Resolution No. bOT21 Section 7: Chapter 20.49 (Wireless Telecommunication Facilities) of the Newport Beach Municipal Code as is hereby approved as shall read as follows. Chapter 20.49 — Wireless Telecommunications Facilities Sections 20.49.010 — Purpose 20.49.020 — Effect of Chapter 20.49.030 — Definitions 20.49.040 — Telecom Facility Preferences and Prohibited Locations 20.49.050 — General Development and Design Standards 20.49.060 — Permit Review Procedures 20.49.070 — Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 — Agreement for Use of City -owned or City -held Trust Property 20.49.090 — Modification and Collocation of Existing Telecom Facilities 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report 20.49.110 — Right to Review, Revoke or Modify a Permit 20.49.120 — 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 wireless telecommunication facilities ( "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 public views, and otherwise avoiding and mitigating the visual impacts of Telecom Facilities on the community. B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and thereby reduce their visual impact on the community. C. 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. 20.49.020 — Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities providing wireless voice and /or data transmission such as, but not limited to, cell phone, internet, and radio relay stations. Planning Commission Resolution No. Page 6 of 21 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) in accordance with Section 20.49.060 (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 Facility, consistent with Section 20.49.080 (Agreement for Use of City -owned 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. 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. 5. 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 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. Planning Commission Resolution No. Page 7 of 21 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 was lawfully constructed, erected, or approved prior to [INSERT 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. Legal nonconforming Facilities shall comply at all times with the laws, ordinances, regulations, and any conditions of approval in effect at the time the Facility was approved, and any applicable federal and State laws as they may be amended or enacted, in the future. 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 and rotated through a vertical mast or tower interconnecting the beam and Antenna support structure, all of which elements are deemed to be part of the Antenna. C. Base Station. Base Station means the electronic equipment and appurtenant Support Equipment at a Telecom Facility installed and operated by the Telecom Operator that together perform the initial signal transmission and signal control functions. A Base Station does not include the Antennas, Antenna support structure, or any portion of Distributed Antenna System (DAS). D. 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. E. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. F. 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 "hub" or "hotel" where the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. Planning Commission Resolution No. Page 8 of 21 G. Facility Classes. Facility 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 Antennas): 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. 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. The definition does not include a property owner(s) who leases property for a Telecom Facility. 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. Planning Commission Resolution No. Page 9 of 21 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. An artificial 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. Telecommunications) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunications) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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 street light standard which is replaced with a new street light standard to permit the addition of Antennas shall not be considered a Wireless Tower, but rather a replacement street light standard. 20.49.040 — Telecom Facility Preferences and Prohibited Locations 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 of Facilities, from the most preferred (1) to lease preferred (4). Planning Commission Resolution No. Page 10 of 21 1. Collocation of a new Facility at an existing Facility. 2. Class 1. 3. Class 2. 4. Class 4. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: 1. On properties zoned for single -unit or two -unit residential development including equivalent Planned Community District or Specific Plan districts. 2. On properties zoned for multi -unit residential development and mixed -use development including equivalent Planned Community District or Specific Plan districts 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 Facility. 4. On traffic control standards (traffic signal poles). 20.49.050 — 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 Facility as visually inconspicuous as practicable. To the greatest extent Feasible, Facilities shall be designed to minimize the visual impact of the Facility by means of location, placement, height, screening, landscaping, and 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 Facility, including topography, vegetation, buildings, or Planning Commission Resolution No. Page 11 of 21 other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop. 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 Facilities at the proposed location. B. Public View Protection. All new or modified Telecom Facilities, including those facilities considered through an administrative process, shall comply with Section 20.30.100 (Public View Protection). Additionally, potential impacts to public views that are not identified by General Plan Policy NR 20.3 (Public Views) shall be considered and evaluated consistent with Section 20.30.100. C. Height. 1. The Planning Commission or City Council may approve or conditionally approve a CUP for a Telecom Facility that exceeds the maximum height limit for the zoning district in which the Facility is located provided it does not exceed the maximum height limit by 15 feet after making all of the required findings in Section 20.49.060(1) (Permit Review Procedures). 2. All Telecom Facilities shall comply with height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport Environs Land Use Plan for John Wayne Airport and Airport Land Use Commission Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. 3. Telecom Facilities installed on streetlights, 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. 4. 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 proposed Antennas do not extend above the top of the Utility Pole or Utility Tower. 5. Telecom Facilities disguised as flagpoles may be installed provided they meet applicable height limits for flagpoles provided in Section 20.30.060. D. Setbacks. Proposed Telecom Facilities shall comply with the required setback established by the development standards for the zoning district in which the Facility is proposed to be located. Setbacks shall be measured from the any part of the 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 harmony and scale with the surrounding area, screens the installation from view, and prevents the Facility from visually dominating the surrounding area. Design techniques may include the following: Planning Commission Resolution No. Page 12 of 21 1. Screening elements to disguise, or otherwise hide the Telecom Facility from view from surrounding uses. 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 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 Facility would not create greater visual impacts than the Facility itself. 6. To the greatest extent practicable, new Class 4 Facilities shall be designed and sited to allow for the collocation of one additional Telecom Operator. 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 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 must be considered for all Facility installations: 1. For Class 1(Stealth /Screened) Installations: a. All Telecom Facility components, including all Antennas, Antenna panels, cables, wires, conduit, mounting brackets, and Support Equipment, shall be fully screened, and mounted either inside the building or structure, or behind 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. When a Telecom Facility is proposed within an existing or new architectural feature such as a steeple, religious symbol, tower, cupola, clock tower, sign tower, etc., the Facility shall blend architecturally compatible with the existing structure or building. 2. For Class 2 (Visible) 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 Planning Commission Resolution No. Page 13 of 21 Antennas are mounted. No cables, wires, conduit, mounting brackets or any other associated support equipment shall be visible. 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) Installations: a. Whenever Feasible, new Antennas proposed to be installed in the public right -of -way shall be placed on existing utility structures, streetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles, 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. New or replacement vertical structures may be allowed where approved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed provided they match existing or planned poles within the area. c. 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 pole. 4. For Class 4 (Freestanding Structure) Installations: a. The installation of new Lattice Towers or Monopoles with visible antennas or Antenna Arrays is strongly discouraged. Preferred Monopole designs include fully screened Antennas without visible brackets, cables, or conduit. Additionally, any Lattice Tower or Monopole should be sited in the least obtrusive location as possible. b. The construction of new freestanding structures such as signs, monoliths, pyramids, light houses, or other similar vertical structures shall be designed and sited to appropriately complement a site and screen all elements of the Telecom Facility. c. The installation of artificial rocks shall match in scale and color other with rock outcroppings in the general vicinity of the proposed site. An artificial rock screen may not be considered appropriate in areas that do not have natural rock outcroppings. d. The installation of artificial trees or shrubbery is strongly discouraged. When an artificial tree or shrubbery is proposed, it shall be designed for and located in a setting that is compatible with the proposed screening method. Such installations shall be situated so as Planning Commission Resolution No. Page 14 of 21 to utilize existing natural or manmade features including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening. All Antennas and Antenna supports shall be contained within the canopy of the tree design or other vegetation comparable to that being replicated by the proposed screening elements. Finally, the addition of new comparable living vegetation may be necessary to enhance the artificial tree or shrubbery screening elements. e. Flagpoles 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) Installations: 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 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 practicable, 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 Telecom Facilities. For building or structure - mounted Antenna installations, Support Equipment for the Facility may be located inside the building, in an underground vault, or on the roof of the building that the 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 Telecom Facilities. All screening materials for roof - mounted 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 Telecom Facilities. For freestanding Facilities installations, not mounted on a building or structure, Support Equipment for the 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. Planning Commission Resolution No. Page 15 of 21 (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. (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 without increasing the pole diameter or shall be installed in the vault enclosure supporting the Facility. 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 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. Planning Commission Resolution No. Page 16 of 21 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 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, dying, or damaged. 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 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 etseq.). 20.49.060 — Permit Review Procedures A. Application Procedures. Applications for Telecom Facilities shall be subject to Chapters 20.50 (Permit Application Filing and Processing), 20.52 (Permit Review Procedures), and 20.54 (Permit Implementation, Time Limits, and Extensions) unless otherwise modified by this Section. Applications shall be processed consistent with the FCC Declaratory Ruling FCC 09 -99 ( "Shot Clock ") deadlines or as redefined in the future by applicable State or federal law. All costs associated with the permit application review shall be the responsibility of the applicant, including any expense incurred for any outside third -party technical or legal services in connection with the application. B. 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. C. Application Submission Requirements for Telecom Facilities on City -owned or City -held Trust Properties. Prior to the submittal for any application for any 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. Planning Commission Resolution No. lr'OTZ1 D. Permit Required. All Telecom Facilities shall obtain a MUP, CUP, LTP, or ZC if not prohibited by subsection 20.49.040(8) as provided in Table 4 -1. Notwithstanding permits identified in Table 4 -1, any application for a Facility that proposes to exceed the maximum height limit of the applicable zoning district in which the Facility is located shall require the issuance of a CUP by the Planning Commission. Table 4 -1 Permit Requirement for Telecom Facilities Facility Class Permit Class 1 ZC Class 2 MUP Class MUP Class 4 CUP Class 5 LTP E. 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 Facility to an existing Facility resulting in the establishment of a Collocated Telecom Facility shall be allowed without a discretionary review provided it meets section 20.49.090. If such a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6 and Section 20.49.090, the Facility shall be reviewed pursuant the review procedures provided in Table 4 -1. F. 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 Facility will interfere with emergency communications devices, the applicant shall work with the Police Department to avoid interference. G. Public Notice and Public Hearing Requirements. An application for a MUP, CUP or LTP shall require public notice and a public hearing in accordance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all 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: Planning Commission Resolution No. Page 18 of 21 a. The proposed Telecom Facility is visually compatible with the surrounding neighborhood. b. The proposed Telecom Facility complies with 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. d. An alternative plan that would result in a higher priority Facility Class category for the proposed Facility is not available or reasonably Feasible and desirable under the circumstances. 2. Findings to Increase Height. The Planning Commission may approve, or conditionally approve an application for a Telecom Facility which includes a request to exceed the maximum height limit for the zoning district in which the Facility is located up to a maximum of 15 feet 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. b. Establishment of the Telecom Facility at the requested height is necessary to provide service. 20.49.070 — 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). 20.49.080 — 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. Planning Commission Resolution No. Page 19 of 21 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. 20.49.90— Modification and Collocation of Existing Telecom Facilities 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 processing 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 (5 %) of the physical dimensions of the original approved Telecom Facility, or as defined by applicable State or federal law in the future. Each application submitted under this section for a modification or collocation 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 Facility; and, a graphic depiction of the 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 any material statement made with respect to the Facility application is false or the modifications as actually made would have required a discretionary review had the plan for the Facility depicted the modifications. 20.49.100 — 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 Planning Commission Resolution No. Page 20 of 21 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 Facility is operating at the approved 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 Facility operating at its maximum effective radiated power level, rather than on estimations or computer projections. If the report shows that the 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 use of the 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. 20.49.110 — Right to Review, Revoke or Modify a 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. 20.49.120 — 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 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 to use such Facility and, if Planning Commission Resolution No. Page 21 of 21 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 Facility within 30 days of the transfer. 3. Remove the Telecom Facility and restore the site. C. Removal by City. 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 Facility or any part thereof. The owner of the premises upon which the abandoned Facility was located and all prior operators of the 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 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. ATTACHMENT PC -2 Update to draft Chapter 20.49 with marked changes Page Intentionally Blank Chapter 20.49 -Wireless Telecommunications Facilities Sections 20.49.010 - Purpose 20.49.020 - Effect of Chapter 20.49.030 - Definitions 20.49.040 - - Telecom Facility Preferences and Prohibited Locations 20.49.050 - General Development and Design Standards 20.49.060 - Permit Review Procedures 20.49.959070 - Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 - Agreement for Use of City -owned or City -held Trust Property 20.49.399090 - Modification and Collocation of Existing Telecom Facilities 20.49.100 - Operational and Radio Frequency Compliance and Emissions Report 20.49.429110 - Right to Review-49-P, Revoke or Modify a Permit 20.49.120 - 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 wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with State and federal law while ensuring public safety, reducing the visual effects of Telecom e9wipme4l'acilities on public streetscapes, protecting ------ ocean and °';public views, and otherwise avoiding and mitigating the visual impacts of Rew d existing AnteRRa sites, and 3\ . e Telecom Facilities ..,L,.... ,.,.....9..Visual :...parts on the community and putics ,,;,...,s aFe ...:.,:,..,_,.., B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and thereby reduce their visual impact on the community. 8-C 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. Page 11 20.49.020 — Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities providing wireless 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), .,,...,..,a'Rg GR the Class, wid methed Af in accordance with Section 20.49.978060 (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 Facility, consistent with Section 20.49.899080 (Agreement for Use of City -owned 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. 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. 5. 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 SeF -ees r 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: Page 12 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+swas lawfully constructed, erected, or approved prior to the ^FF Ft., t of thF THIS CHAPTERI, 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 ;s 9theF...,,.^ ap eyed ^ ^a ^^^s«_..^. ^a Legal nonconforming T,pler.twn Facilities shall comply at all times with the laws, ordinances, aad- regulations any conditions of approval in effect at the time the applieatieaFacility was deemed reapproved, and any applicable federal and State laws as they may be amended or enacted, in the future. 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 and rotated through a vertical mast or tower interconnecting the beam and Antenna support structure, all of which elements are deemed to be part of the Antenna. C. AnteRRa C'^" ^^W^ ^,Base Station. Base Station means the electronic equipment and appurtenant Support Equipment at a Telecom Facility installed and operated by the Telecom Operator that together perform the initial signal transmission and signal control functions. A Base Station does not include the Antennas, Antenna support structure, or any portion of Distributed Antenna System (DAS). D. 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 Page 13 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. E. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. F. 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 "hub" or "hotel" where the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. Facility Classes. Facility 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 Antennas): 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. nUMMIERNTMINT-9 .. Jam.-....... �...r- ....��..- ........�.�....� r�iiilTlRlT- flTTR3�T1T- .. - - ... • .... -_ . r Page 14 n ARter Ras and GibeF Sptle Redes typi eally m IRtPFJ tR 4FRPtligh♦ peles n „hilih., "hldh" "h..h,.IP ..,h..F., the PAf I.Pt.V8Fl. iq i�h��������h r.� With hhiFel PaFt y ..,iFei,-.e.s seFYi ee RF ,i..l.. S t.. PFeV the SigR@1 4 Sfe 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. The definition does not include a property owner(s) who leases property for a Telecom Facility. 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 fa4seAn artificial tree is not a Stealth Facility. Page 15 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. Telecommunications) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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 street light standard which is replaced with a new street light standard to permit the addition of Antennas shall not be considered a Wireless Tower, but rather a replacement street light standard. 20.49.1350 - I acatiea040 - Telecom Facility Preferences. and Prohibited Locations 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 f Teleeem Facilities, from highest PFOeFity lecatien and teen Riquethe most preferred (1) to:ewest-.lease preferred (41 1. Collocation of a new Facility at an existing Facility. 2. Class 1. '..- 3. Class 2. g —Class 4. Fr.4. Glass S. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: 1. On properties zoned for single -unit or two -unit residential development; including equivalent P-C-Planned Community District desk atieRor Specific Plan districts. 2. On properties zoned for multi -unit residential development and mixed -use development including equivalent Planned Community District or Specific Plan districts 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 Teleeam Facility. NO see 4. On traffic control standards (traffic signal poles). 20.49.669050 — General Development and Design Standards-. Page 17 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 pessibiepracticable. To the greatest extent Feasible, :Peleeem Facilities shall be designed to minimize the visual impact of the Teleeem Facility by means of location, placement, height, screening, landscaping, and 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 Telerem including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop. S. 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 Facilities at the proposed location. B. Public View Protection. All new or modified Telecom Facilities iRyelving a site adjaeen"e including those facilities considered through an administrative process, shall comply with Section 20.30.100 (Public View Protection). Additionally, potential impacts to public views that are not identified public view peint er eaffideF, as ident4ied-44by General Plan Policy NR 20.3 (Public Views�71 shall be Pa to evaluate the p9teRt ;_ aet «. pub lie rte- considered and evaluated consistent with Section 20.30.100 (Pubs.. View PFat ._.:,. „) C Height. OW �J. A....I:..�H.....� F... tt...:.. �:- .II- .H......L T.. L,....... [.,..:1: «:.,� .. .,.! «., 1..... .. -.«... aL..... the base height 10FAit f9F the ;I g rd:StFi Ct : • hieh the T..I..rAFA C...-:I:ty is leeated shall The Planning Commission or City Council may approve or conditionally approve a CUP for a Telecom Facility tethat exceeds the maximum height limit for the zoning district in which the Facility is located provided it does not exceed the basemaximum height limit by 15 feet after making all of the required findings in Section 20.49.979,44060 I (Permit Review Procedures). .2. All Telecom Facilities shall comply with Anteaaa height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport Environs Land Use Plan (- A€kklR)-for John Wayne Airport and Airport Land Use Commission (A661G) Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. theTeieeAM OlBeFOWF'S PFePBsed sew:ee AFea. la aRrease, Re 4 ,teRrrja RF Rt of ... height I:...:t.. 5 3. Telecom Facilities installed on ..tFeetlight standaF streetlights, 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. 64. 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 A,ntea:,adoesproposed Antennas do not extend above the top of the Utility Pole or Utility Tower. -7-5. Telecom Facilities euRd meuRteadisguised as flagpoles may be installed at :,a ,provided they meet applicable height Pf 49 feetlimits for flagpoles provided in Section 20.30.060. D. Setbacks. Proposed Telecom Facilities shall comply with the required setback established by the development standards for the zoning district in which the TTeIeeem Facility is proposed to be located. Setbacks shall be measured from the any part of the T�� 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 harmony and scale with the surrounding area, hidesscreens the installation from view, and prevents the T- P.1prRFR Facility from visually dominating the surrounding area. Design techniques may include the following: EG 1. Screening elements to disguise, or otherwise hide the Telecom Facility from view from surrounding uses. 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 TplprAm rFacility. 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;eler^orr Facility would not create greater visual impacts than the TeleeemFacility itself. 4:6. To the greatest extent practicable, new Class 4 Facilities shall be designed and sited to allow for the collocation of one additional Telecom Operator. 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,eleesm 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 she - Idmust be considered for all Facility installations: 1. For Class 1 (Stealth /Screened) ^,tee Installations: a. All Telecom Facility components, including all Antennas, Antenna panels, cables, wires, conduit, mounting brackets, and Support Equipment, shall be fully screened, and mounted either inside the building or structure, or behind the pfspesed 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. I.. Rdit ARE .,L...... the ^..t..nRaq ...A cU..P914 �..�Ia Fn m aFe ORstalledWhen a Telecom Facility is proposed within can existing or new `Fee5tBRdiRg StFHetWe (aR architectural feature such as a steeple, religious symbol-.ef, tower, cupola, clock tower, sign tower, etc +, the shall blend n the ......,,.w inam . 0,; -_al I9a(_;k F9P 58 it ElppeaFg t8 L.,. R .I..rQFRti..,. ......I ..t4a6ti.... RFrhit@r '.FRI feat-- rearchitecturally compatible with the existing structure or building. Page 110 2. For Class 2 (Visible) Ar mteRna 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-4nd, wires, conduit, mounting brackets or any other associated support equipment A W'FeTshall be visible . 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 9r -^^I,G^ffi^ ^t utility structures, 4gM °t�AIsstreetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles, 4affiE ESM481 StARdRFRIS, 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. New or replacement vertical structures may be allowed where aooroved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed provided thev match existing or lanned poles within the area b-c.lf 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. if is tO the be e. a new pale pFepesed Felalace an existing pole, Felplaeement pele shall rgRg :.tpnt with the s ze, shape style and design of the exist Rg Pale, Relu.I Rg 4. For Class 4 (Freestanding Structure) A,Rte;nalnstallations: a_ F^- a `alSe -^-k, the --GP8- &d The installation of new Lattice Towers or Monopoles with visible antennas or Antenna Arrays is strongly discouraged. Preferred Monopole designs include fully screened Antennas without visible brackets. cables, Page 111 or conduit. Additionally, any Lattice Tower or Monopole should be sited in the least obtrusive location as possible. b. The construction of new freestanding structures such as signs, monoliths, pyramids, light houses, or other similar vertical structures shall be designed and sited to appropriately complement a site and screen Beall elements of the Telecom Facility. a -c.The installation of artificial rocks shall match in scale and color other with rock outcroppings in the general vicinity of the proposed site. A falseAn artificial rock screen may not be considered appropriate in areas that do not have natural rock outcroppings. b-d The installation of a false tfee— (sachas 19.4 Vith^lIt "FA4 ;_ #'^^ raeaepiaeartificial trees or shrubbery is strongly discouraged. When an artificial tree or shrubbery is proposed, it 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. PRF 49e t-..,.9 AF ShFWI3 "e..• i « " "�� , All Antennas and Antenna supports shall be contained within the canopy of the tree design-,-a++4 or other vegetation comparable to that being replicated lr b the proposed enreer #R-141-We shall be pFeyale..t On the IrA.Re.I;;Ite .A.d..ity Gf the ARtPRA , Sim t&,-a,�4oscreening elements. Finally, the addition of new comparable living vegetation may be necessary to enhance the false artificial tree or shrubbery SeFeen ;rescreening elements. Fe Pe. i.,..t,i .,t,,..... of _ flag.ei. the peieFlagpoles 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) AnteRna Installations: 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 T, elere rFacility. 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 pessiblepracticable, 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: Page 112 (1) Building- Mounted Telecom Facilities. For building or structure - mounted Antenna installations, Support Equipment for the T�elpew;, Facility may be located inside the building, in an underground vault, or on the roof of the building that the Te4eeeaa— 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 Telecom Facilities. All screening materials for roof - mounted Teleegm 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 Telecom Facilities. For freestanding Teleeem Facilities installations, not mounted on a building or structure, Support Equipment for the plergm 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. (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 N) 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 Page 113 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 RF 444ie r-t;R #L ;l standard without increasing the pole diameter or shall be installed in a flush tg- �the vault enclosure adjaeent te the base e€ supporting the peleFacility. 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 T, eleeem 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. 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 deadsf, dying, or damaged. 4. All Telecom Facilities shall be kept clean and free of litter. Page 114 S. All equipment cabinets shall display a legible contact number for reporting maintenance problems to the;= aeilityTelecom 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.). 20.49.979 60 — Permit Review Procedures, A. Application Procedures. Applications for Telecom Facilities shall be subject to Chapters 20.50, (Permit Application Filing and Processing), 20.52; (Permit Review Procedures), and 20.54 (Permit Implementation, Time Limits, and Extensions) unless otherwise modified by this Section. Applications shall be processed consistent with the FCC Declaratory Ruling FCC 09 -99 ( "Shot Clock ") deadlines or as redefined in the future by applicable State or federal law. All costs associated with the permit application review shall be the responsibility of the applicant, including any expense incurred for any outside third -party technical or legal services in connection with the application. B. PeMit Reel••'- °a Installations in the Public Right -of -Way. All Telecom Facilities shah- AhtaiR N4 WP, GWP I Tn . ZG if R9t .. , 1INted by subs etieR 20.49.959A, .L........ iRg 9R the i Nonni ........... milli WeRfifipd Page 115 "71"r !!1�17!IYN'L•[IIT.'t•lTIIRI�!!_ _ _ .. • • • • • • • • • - lIT�:LTl�T11:7!S! • -,•• ocated 5«.,.,.t,,....., be alle ed su bjeet to qq,_IARCP of, Z,,..,..,. Glea.-.Rce (ZG) wlh� ,..pUbllc right -of way shall comply with the xequ Fe meat5,provisions of Title 13. _G�Application Submission Requirements for Telecom Facilities on City -owned or City -held Trust Properties. Prior to the submittal for any application for any T,zleF:RFR rFacility 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. P— Permit Reauired. All Telecom Facilities shall obtain a MUP. CUP. LTP. or ZC if not prohibited by subsection 20.49.040(6) as provided in Table 4 -1. Notwithstanding permits identified in Table 4 -1, any application for a Facility that proposes to exceed the maximum heieht limit of the applicable zonine district in which the Facilitv is located shall reauire the issuance of a CUP by the Planning Commission Table 4 -1 Permit Requirement for Telecom Facilities facility Class Permit Class 1 ZC Class 2 MUP Class 3 MUP Class 4 CUP rw LTP D. P— Permit Reauired. All Telecom Facilities shall obtain a MUP. CUP. LTP. or ZC if not prohibited by subsection 20.49.040(6) as provided in Table 4 -1. Notwithstanding permits identified in Table 4 -1, any application for a Facility that proposes to exceed the maximum heieht limit of the applicable zonine district in which the Facilitv is located shall reauire the issuance of a CUP by the Planning Commission Table 4 -1 Permit Requirement for Telecom Facilities facility Class Permit Class 1 ZC Class 2 MUP Class 3 MUP Class 4 CUP Class 5 LTP E. 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 T,z;erAm rFacility to an existing-T Facility resulting in the establishment of a Collocated Telecom Facility shall be allowed without a Page 116 discretionary review provided it meets section 20.49.499090. If such a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6 and Section 20.49399090 the Facility shall be reviewed pursuant the review procedures provided in Table 4 -1. F. 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 Te4eeem Facility will interfere with emergency communications devices, the applicant shall work with the Police Department to avoid interference. G. W Public Notice and Public Hearing Requirements. An application for a MUP, CUP or LTP shall require a--public notice; and a public hearing shall he rRRdaeted, in eempliageeaccordance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all ,zlpet;m Facilities requiring discretionary review: I 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 lagy, 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. d. An alternative AntenRa eenstFuctien plan that would result in a higher priority A,ptenRaFacility Class category for the proposed T, elereFn TFacility is not available or reasonably Feasible and desirable under the circumstances. 2. -- Findings to Increase Height. The Feview & A"e- AyPlannina Commission may approve, or conditionally approve an application for a Telecom Facility which includes a request to exceed the basemaximum height limit for the zoning district in which the TTCiciem Facility is located up to a maximum of 15 feet only after making each of the following Page 117 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. b. Establishment of the Telecom Facility at the requested height is necessary to provide service. 20.49.988070 – 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 80 – 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. 20.49.49990 – Modification and Collocation of Existing Telecom Facilities. 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 t#— processing –e€ 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 (5 %) of the physical dimeasiendimensions of the original approved Telecom Facility -a eved, or as ^P@Ft ef the eFigiRal diSeFetieRaF y peFFRi efined by applicable State or federal law in the future. Page 118 Each application submitted under this section for a modification or collocation 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, eleeAm Facility; and, a graphic depiction of the Tplprnm 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- any material statement made with respect to the Facility application is false or the modifications as actually made would have required a discretionary review had the plan for the Facility depicted the modifications. 20.49.439300 — 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 T`^TClprnm Facility is operating at the approved 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 Telprnnq Facility operating at its maximum effective radiated power level, rather than on estimations or computer projections. If the report shows that the T,elerem 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 t4at -use of the Telecom Facility be suspended until a new report has been submitted confirming such compliance. Page 119 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. RirrnernTrrrrasxrn� _ - - - - - rrsarirr�rrrs�rtrzss��re - 20.49.429110 — Right to Review-of, Revoke or Modify a 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. 20.49.439120 — 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 rz'p^m 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 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 :Pplpcem rFacility within 30 days of the transfer. Page 120 3. Remove the Telecom Facility and restore the site. C. Removal by City. 1. 3The 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 Telt-rt;n; Facility or any part thereof. The owner of the premises upon which the abandoned Teler-AFA rFacility was located and all prior operators of the— TeleEen; 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 T�ciccRFR 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. Page 121 Correspondence Item No. 4a ��951 Wireless Telecommunications Facilities Ordinance Update T PA2 012 - 0 5 7 Kyaa o_ aakeu ATat Som ces. Im. T: 916.341.3504 ' Ger ral Anomey 1215 K 54reet. SUI1e 1800 F: 916.443:6836 Swe enlo, CA 95e14 kyla.powe!IGall.cam November 21, 2013 Delivered via Email James Campbell, Principal Planner Community Development Department City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Subject: Proposed Amendment to Wireless Telecommunications Facilities Ordinance (PA2012 -057), Code Amendment No. 2012 -004, as revised November 21, 2013 Dear Mr. Campbell: We appreciate the Planning Commission and staff continuing to take the time to invite and consider industry's comments and proposed changes to the City's Proposed Wireless Telecommunications Facilities Ordinance. While we are pleased that some of industry's proposed changes have been accepted, we respectfully request additional modifications to the ordinance before it is advanced to the City Council. AT &T has conducted a legal review of the latest draft of the ordinance and remains concerned about the overall restrictiveness of ordinance. While we recognize the importance to the City of protecting community aesthetics, the City will be best served if the ordinance strikes a balance between aesthetics and the wireless needs of its residents, businesses, and visitors. The ordinance, as drafted, would continue to seriously impede the ability of carriers to provide wireless service and violate federal and state law provisions raised in AT &T's prior comments. Below are some examples of areas In the ordinance that remain problematic under applicable law: Federal Telecommunications Act of 1996 and California Public Utilities Code Section 7901 As noted previously, the Federal Telecommunications Act of 1996 (47 U.S-C.A. § 151 et seq.) ( "Act ") grants exclusive authority to the FCC over deployment of wireless telecommunications service and preempts any conflicting state or local government regulations. It also prohibits unreasonable discrimination among providers of functionally equivalent services and any regulations that would have the effect of prohibiting the provision of personal wireless services. 147 U.S.C.A. § 332(c)(3).) Section 7901 of the California Public Utilities Code similarly supports deployment of telecommunications facilities in the public right-of-way. Cities may only exercise reasonable control as to time, place, and manner in which roads are accessed. {Section 7901(a).) Section 7901.1(b) further requires municipal (regulations at a minimum to be applied to all entities in a nondiscriminatory manner. November 21, 2013 Page 2 Here, the proposed City ordinance provisions that appear to conflict with the Act and/or Section 7901 include: • Section 20.49.10— Purpose The purpose statement fails to acknowledge the overall federal and state policies promoting wireless deployment. The ordinance purpose should be revised to acknowledge the importance of bringing modem wireless infrastructure to residents and businesses of Newport Beach. Section 20.49.040 — Telecom Facility Preferences and Prohibited Locations The proposed blanket prohibitions on certain residential areas continue to be a major concern. We appreciate the recent revisions to except public right -of -way and some common areas from prohibited locations, but the remaining prohibitions are still extensive. These could prevent wireless providers from bringing service and upgrades to significant portions of the City, in violation of the Act. If one of the prohibited areas Is the only available location for a telecom facility, this would appear to be a complete bar to the ability to provide service. There are many residents who are no longer signing up for wired services, making the need to bring wireless service to residential communities increasingly important. Blanket prohibitions do not provide the flexibility to (bring needed service when residential areas are the only or best option. Rather than providing a list of prohibited locations, we recommend that all locations be prioritized by order of preference. Categories listed as prohibited locations In the current draft could be placed at the bottom of that list, only to be considered if all properties in higher categories were considered and rejected. • Section 20.49.50 — General Development and Design Standards This section and other areas of the proposed ordinance impose a number of rules and restrictions focused around aesthetics, including height limitations, stealthing standards, limits on pole attachments, and undergrounding requirements. These are counter - productive to providing quality service and resulting cost burdens will impact the number of sites AT &T can afford to build and thus negatively impact the service the citizens of Newport Beach (our customers) receive. We believe these run counter to the Act and Section 7901. Additionally, we are very concerned that not all of the latest technologies will be able to meet the City s restrictive aesthetics- oriented standards. To the extent that these rules favor one technology over another, or one company over another, these restrictions are again prohibited under the Act and Section 7901. • Section 20.49.100 — Operational and Radio Frequency Compliance and Emissions Under the Act, the FCC has exclusive jurisdiction over regulation of RF emissions. Some of the proposed requirements appear to be an effort to engage in such regulation and, for that reason, might be subject to challenge. In any event, It is unclear what the City might reasonably do with the required information if not for regulatory purposes. November 21, 2013 Page 3 • Section 20.49.60— Permit Review Procedures The requirement to interface with the Chief of Police Is burdensome and appears to exceed what is allowed under the Act. Additionally, we are concerned about bearing the responsibility for all of the expenses of third party consultants. Without a cap or some form of limitation on this expense, this requirement is open for abuse and can pose a significant burden to provision of service. Also, if this requirement is not consistent with applications for permits by other Industries, it is impermissible discrimination. Middle Class Tax Relief and Job Creation Act of 2012 As previously explained, Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 requires any facility modification that does not substantially change the physical dimensions of the tower or base station at issue to be approved by the City. Proposed City ordinance provisions that appear to violate Section 6409(a) include: • Section 20.49.90— Modification and Collocation of Existing Telecom Facilities This would appear to violate this act by establishing an unduly restrictive definition of "substantial change," as any change that exceeds five percent of the physical dimensions. • Section 20.49.030 — Definitions The definitions of "Base Station" and "Wireless Tower" remain problematic. These are too restrictive and narrowing. Thank you for your continuing consideration of our concerns. We are happy to further discuss the issues we have raised and answer any questions you may have. Sincerely, ?Kyla. owell Cc: Bradley Hillgren, Chair, City of Newport Beach Planning Commission Larry Tucker, Vice Chair, City of Newport Beach Planning Commission Members, City of Newport Beach Planning Commission Correspondence Item No. 4b Wireless Telecommunications Facilities Ordinance Update V V PA2012 -057 Chapter 20.49 — Wireless Telecommunications Facilities Sections LgL)6 /& ,i4 � ✓ // Z_j - -- y 20.49.010 — Purpose 20.49.020 — Effect of Chapter 20.49.030 — Definitions 20.49.040 — Telecom Facility Preferences and Prohibitions 20.49.050 — General Development and Design Standards 20.49.060 — Permit Review Procedures 20.49.070 — Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 — Agreement for Use of City -owned or City -held Trust Property 20.49.090 — Modification and Collocation of Existing Telecom Facilities 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report 20.49.110 — Right to Review, Revoke or Modify a Permit 20.49.120 — 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 wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with State and federal law while ensuring public safety, reduc+ngminimizint the visual effects of Telecom Facilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the visual impacts of Telecom Facilities on the community. B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and - -- •.+recce their visual impact on the community. (�� 1�1f��✓hrr C. The provisions of this Chapter are n intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecommunication services. This Chapter shall be applied to providers, operators, nd maintainers of wicelesstelecommunication services regardless of whether authorized or subject to IState or federal regulations. This Chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecafntelecommunication services. 20.49.020 — Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities F + ,,as defined herein and that provide wireless voice and /or data transmission such as, but not limited to, cell phone, internet, and radio relay stations. 1� Page 11 B. Permit and /or Agreement Required. PFieff te rengtri, Unless the provisions of this Chapter provide otherwise, prior to installation 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) in accordance with Section 20.49.060 (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 ifshis or herdesigne prior to eenso u etian installation of the Facility, consistent with Section 20.49.080 (Agreement l for Use of City -owned or City - held Trust Property). i C. Exempt Facilities. The following types of relecorn cilities a exempt from the provisions of this Chapter: 1 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. 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. 5. 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 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 aany 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). Page 12 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 was lawfully constructed, erected, or approved prior to [INSERT 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 aeeepted and allowed asdeemed a legal nonconforming Facility. Legal nonconforming Facilities shall comply at all times with the laws, ordinances, reguI s, and any conditions of approval in effect at the time the Facility was approve and a y applicable provisions of the Municipal Code or federal and State laws as they maybe amended or enacted, in the future. 20.49.030 — Definitions pep ' " ! � 4v ' 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 and rotated through a vertical mast or tower interconnecting the beam and Antenna support structure, all of which elements are deemed to be part of the Antenna. C. Base Station. Base Station means the electronic equipment and appurtenant Support Equipment at a Telecom Facility installed and operated by the Telecom Operator that together perform the initial signal transmission and signal control functions. A Base Station does not include the Antennas, Antenna support structure, or any portion of Distributed Antenna System (DAS). D. 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. E. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. Page 13 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. The definition of Operator_ or Telecom Operator does not include a property owner(s) wkethat leases property to an Operator for a Telecom Facility. M. Public Right -of -Way. Public Right -of -Way or ( "PROW ") means the improved or unimproved surface of any up blic 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. The PROW does not include private streets. 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 such as 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 reasonable`) observer do not qualify within this definition. For example, an artificial tree ismav no not be considered to be 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. Telecommunications) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunications) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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 Page 15 greatest extent Feasible, Facilities shall be designed to minimize the visual impact of the Facility by means of location, placement, height, screening, landscaping, and 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 Facility, including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop. 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 Facilities at the proposed location. /� L B. Public View Prote ion. All new or modified Telecom Facilities, whether approved by administrative pfece6sor discretionary review . shall comply wit Section 20.30.100 (Public View Protection). Additionally, potential impacts to public view that are not identified by the City's General Plan / V4ews4 olicies shall `":' C. Height. 1. Th/Plann' Commission or City ouncil may pp ov e or conditio a ly app ve a CUP fom Facility that exceeds the maximum height limit for the zoning district in wcility is located provided it does not exceed the maximum height limit by 15 fe er making all of the required findings in Section 20.49.060(IH) (Permit Re dures). 2. All Telecom Facilities shall comply with height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport Environs Land Use Plan for John Wayne Airport and Airport Land Use Page 17 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 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 must be considered for all Facility installations: 1. 6ar-Class 1(Stealth /Screened) Installations: a. All Telecom Facility components, including all Antennas, Antenna panels, cables, wires, conduit, mounting brackets, and Support Equipment, shall be fully screened, and mounted either inside the building or structure, or behind 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. When a Teleco Facility is proposed within an existing or new architectural feature such as a ste le, religious symbol, tower, cupola, clock tower, sign tower, etc., the Facility shall architecturally compatible with the existing structure or building. 2. FefClass 2 (Visible) 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, wires, conduit, mounting brackets or any other associated support equipment shall be visible. 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) Installations: a. Whenever Feasible, new Antennas proposed to be installed in the public right -of- way shall be placed on existing utility structures, streetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles, or Utility Poles shall be screened by means of canisters, radomes, shrouds Page 19 other screening measures whenever Feasible, and treated with exterior coatings of a color and texture to match the existing pole. b. New or replacement vertical structures may be allowed wheEewhen authorized by the Municipal Code and approved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed provided they match existing or planned poles within the area. c. 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 pole. 4. PE w Class 4 (Freestanding Structure) Installations: a. The installation of new Lattice Towers or Monopoles with visible antennas or Antenna Arrays is strongly discouraged.- due to the visual effects of such facilities. Preferred Monopole designs include fully screened Antennas without visible brackets, cables, or conduit. Additionally, any Latt ice To Q .'.0 Monopole should be sited in the least obtrusive location as,pesritrie- b. The construction of new freestanding structures such as signs, monoliths, pyramids, light houses, or other similar vertical structures shall be designed and sited to appropriately complement a site and screen all elements of the Telecom Facility. c. The installation of artificial rocks shall match in scale and color other with rock outcroppings in the general vicinity of the proposed site. An artificial rock screen may not be considered appropriate in areas that do not have natural rock outcroppings. d. The installation of artificial trees or shrubbery is strongly discouraged, if they are obviously not natural to the average reasonable observer. When an artificial tree or shrubbery is proposed, it 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. All Antennas and Antenna supports shall be contained within the canopy of the tree design or other vegetation comparable to that being replicated by the proposed screening elements. Finally, the addition of new comparable living vegetation may be necessary to enhance the artificial tree or shrubbery screening elements. e. Flagpoles 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. Page 110 H. Required Findings for Telecom Facilities. The following findings shall apply to all 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 findin s: a. The proposed Telecom Facility is visually compatible with the surrounding neighborhood. b. The proposed Telecom Facility complies with 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. d. An alternative plan that would result in a higher 9fkK4t.Vpreference Facility Class category for the proposed Facility is not available or reasonably Feasible and desirable under the circumstances. / Q 2. Findings to Increase Height. The Planning Commission may /ap ove, or cond itionally approve an application for a Telecom Facility which includequest to exceed the maximum height limit for the zoning district in which the y is located up to a maximum of 15 feet only after making each of the followi in in addition to the requiredGeneral findings above as--" f rth in 20.4 .080 1 and the required findings for a MUP or CUP pursuant to Section 20.52.02 nditional 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. b. Establishment of the Telecom Facility at the requested height is necessary to provide service. 20.49.070 — 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). Page 115 W Any permit issued 74/1 be conditioned upon, and may be revoked, and the Telecom Facility shall "e •eEl• i.Fed .removed eland restored to its pre - modification condition if any material statement made with respect to the Facility application is false or the modifications as actually made would have required a discretionary review had the plan for the Facility accurately depicted the modifications. 20.49.100 — 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 Facility is operating at the approved 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 Facility operating at its maximum effective radiated power level, rather than on estimations or computer projections. If the report shows that the 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 use of the 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. 20.49.110 — Right to Review, Revoke or Modify a 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. 20.49.120 — 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 Page 117 RESOLUTION NO. #### A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING CITY COUNCIL ADOPTION OF CODE AMENDMENT NO. CA2012 -004 RELATED TO THE REGULATION OF WIRELESS TELECOMUNICATIONS FACILITIES (PA2012 -057) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. On March 27, 2012, the City Council initiated an amendment of the Municipal Code to comprehensively update the City's wireless telecommunications facilities ordinance. 2. The Planning Commission conducted study sessions on July 19, 2012, September 6, 2012, September 19, 2013, and October 17, 2013, where potential changes to the ordinance were discussed. 3. A public hearing was held on November 21, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. SECTION 3. FINDINGS. 1. The proposed amendment will provide a balanced review process consistent with existing procedures provided within the Zoning Code (Title 20). Proposed telecom facilities that are not visible will be permitted by the Zoning Clearance process. Proposed telecom facilities that would be visible will be subject to either a Minor Use Permit or a Conditional Use Permit if a new free standing structure were is proposed. 2. The proposed amendment does not increase the potential height of teleseFR telecommunications facilities and does not allow them in areas where they are currently prohibited. Planning Commission Resolution No. 2of21 3. The proposed amendment includes adequate design, development, and screening standards to ensure that future telecommunications telesern facilities are visually compatible with the community. 4. The proposed amendment includes provisions reflective of state and federal law and provides for the that require administrative review of minor modifications to, or the collocation of, existing telecommunications teleseM facilities, NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby recommends approval of Code Amendment No. CA2012 -004 as set forth in Exhibit "A." PASSED, APPROVED AND ADOPTED THIS _ DAY OF. 2013. AYES: NOES: ABSTAIN: ABSENT: BY: Bradley Hillgren, Chairman BY: Kory Kramer, Secretary Planning Commission Resolution No. Page 3 of 21 EXHIBIT A Code Amendment No. CA2012 -004 Section 1: on the effective date of this Code Amendment, Chapter 15.70 of the Newport Beach Municipal Code is hereby repealed. Section 2: Table 2 -1 within Section 20.18.020 (Residential Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -1 remaining unchanged: Section 3: Table 2 -4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2 -4 remaining unchanged: R -A R -1 R -BI RM Specific Use Specific Use R -2 RMD Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication — — — MUP /CUP /LTP Chapter 20.49 Facilities LTP LTP 20.49 Facilities Section 3: Table 2 -4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2 -4 remaining unchanged: Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: OA OG OM OR Specific Use Specific Use Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities LTP LTP 20.49 Facilities Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: CC CG CM CN CV Specific Use Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Chapter Telecommunication LTP LTP LTP LTP LTP 20.49 Facilities Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Planning Commission Resolution No. 4of21 Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: MU -V MU -MM (6) MU -DW MU -CV /15th Specific Use MU -W2 Regulations Wireless CUP /MUP/ St (7) Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ LTP Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: MU -W1 Specific Use Specific Use IG (5)(6) MU -W2 Regulations Wireless CUP /MUP/ CUP /MUP/ Chapter 20.49 Telecommunication LTP CUP /MUP/ Chapter 20.49 Facilities LTP LTP LTP Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use IG Regulations Wireless CUP /MUP/ PF Telecommunication PR Chapter 20.49 Facilities LTP CUP /MUP/ Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use OS PF PI PR Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities Planning Commission Resolution No. Page 5 of 21 Section 7: Chapter 20.49 (Wireless Telecommunication Facilities) of the Newport Beach Municipal Code as is hereby approved- adopted as shall read as follows. Chapter 20.49 — Wireless Telecommunications Facilities Sections 20.49.010 — Purpose 20.49.020 — Effect of Chapter 20.49.030 — Definitions 20.49.040 — Telecom Facility Preferences and Prohibited Locations 20.49.050 — General Development and Design Standards 20.49.060 — Permit Review Procedures 20.49.070— Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 — Agreement for Use of City -owned or City -held Trust Property 20.49.090 — Modification and Collocation of Existing Telecom Facilities 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report 20.49.110 — Right to Review, Revoke or Modify a Permit 20.49.120 — 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 wireless telecommunication facilities ( "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 public views, and otherwise avoiding and mitigating the visual impacts of Telecom Facilities on the community. B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and thereby reduce their visual impact on the community. C. 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. 20.49.020 — Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities providing wireless voice and /or data transmission such as, but not limited to, cell phone, internet, and radio relay stations. Paul R. O'Boyle Paul R O'Boyle, JD /MBA w/ www.oboylelaw.com t/ (858) 922 -8807 18269 Deer Canyon Place e/ pro @oboylelaw.com f/ (858) 4,64-7831 San Diego, CA 92129 November 21. 2013 Mr. James Campbell, Principal Planner City of Newport Beach Community Development Department 100 Civic Drive Newport Beach, CA 92660 RE: Newport Beach Municipal Code — Chapter 20.49 Comments on Draft Wireless Telecommunications Facilities Ordinance Dear Mr. Campbell: As outside counsel for Crown Castle NG West, Inc. ( "Crown "), I am pleased to submit these comments on the proposed changes to the City of Newport Beach's ( "City') Wireless Telecommunications Facilities Ordinance ( "Ordinance "). Crown appreciates the opportunity to participate in the process and hopefully improve the processing of wireless facilities within the City. Crown is hopeful that this letter will provide additional information and insight on newer technologies that facilitate improved wireless coverage and capacity solutions without creating the same level of impacts to the community as traditional "macro" wireless cell sites. Crown is a Competitive Local Exchange Carrier ( "CLEC ") in the State of California providing regulated telecommunications services under Certificate of Public Convenience and Necessity ( "CPCN ") #U- 6741 -C. Crown is not a wireless service provider, nor does it provide wireless services to the general public. Instead, Crown is a telephone utility that provides Distributed Antenna Systems ( "DAS ") coverage and capacity solutions primarily to wireless carriers such as Verizon, AT &T and Sprint to name but a few. As a state mandated utility, Crown has expressed rights to access the public right -of -way ( "PROW ") to install its network and to provide regulated services. Therefore, Crown's primary areas of concern are, How does the Ordinance: 1) treat smaller, less intrusive equipment such as DAS in the PROW; and, 2) apply to other entities that use and occupy the PROW, consistent with Public Utilities Code Section 7901 and recent case law. The current Draft Ordinance does not encourage smaller, less intrusive wireless telecommunications equipment such as DAS, especially in the PROW. Although F several Planning Commissioners have requested that the Ordinance include a Small Cell exemption, no such language exists in the Draft Ordinance. In addition to the Small Cell policy topic, below are specific comments on the Draft Ordinance: Section 20.49.020 Paragraph C (Exempt Facilities) — should include a Small Cell Exemption define with specific dimensions, values, etc Section 20.49.030 Paragraph E (Collocation) — Should be defined as the collocation of multiple utilities on an existing pole. Definition should not be limited to just wireless telecom providers. Section 20.49.030 Paragraph I (Feasible or Feasibility) — should include "economic" or "financial" as factors to consider in determining Feasibility. Section 20.49.030 Paragraph M (Right -of -Way) — is too narrowly defined. The definition of ROW should include not only the surface but the space below and above the ROW surface. In addition, the definition should include the historic and traditional uses of the ROW which include the transmission and conveyance of public facilities such as gas, electric, telephone, water and sewer. These inclusions are important no only because they more accurately depict the reality that is the ROW but because the expanded definition includes those areas where wireless facilities usually occupy in the ROW. Section 20.49.040 Paragraph (A) and (B) [Telecom Facility Preference] — although the addition of Class III (ROW Sites) to the list is a step in the right direction, the list needs to be refined. Visible facilities should be broken down as to size. Surely a Small Cell facility on a light standard is more preferable than a full array of antennas running along the parapet of a building? If nothing else applicants will have a better idea as to what facilities are deemed more desirable by the City. Section 20.49.050 (General Development Design Standards) Paragraph 3 (Size) — is too generic. A preference for Small Cell technologies should be stated. The definition should include dimensions and volume required to qualify for Small Cell designation. Section 20.49.050 (General Development Design Standards) Paragraph 4 (Location) — The Ordinance is internally inconsistent in that it recommends telecom facilities use the existing environment, natural or developed, yet the use of existing utility poles and infrastructure, especially in the ROW, is not encouraged. The Ordinance precludes attachment to traffic signals because of City Staff concerns. Traffic signals have been successfully attached to in countless jurisdictions. . P.2of3 Section 20.49.050 (General Development Design Standards) Paragraph D (Setbacks) — Language should be added clarifying that set back requirements of adjacent zones do not apply in the ROW. Section 20.49.050 (General Development Design Standards) Paragraph E (Design Techniques) — the words "as much as practical" should be added when discussing screening of installations from view. Section 20.49.050 (General Development Design Standards) Paragraph E (Design Techniques) Sub - Paragraph 3 (Existing Features) — the word "poles" should be added to the list Section 20.49.050 (General Development Design Standards) Paragraph F (3)(b) — the word "consistent" should be replaced with "substantial conformance' when talking about size, shape, etc. Section 20.49.050 (General Development Design Standards) Paragraph F (6)(b) Support Equipment — The Ordinance lacks a nuanced approach to support equipment location. Often times Small Cells place their support equipment on the utility pole because it is small and inconspicuous. Placing equipment underground is not always the best solution. Besides being costly, vaults have maintenance issues often related to water intrusion. In addition, vaults require vents, which only clutters the ROW with more street furniture. Section 20.49.050 (General Development Design Standards) Paragraph F (6)(b) (3) — The requirement that radios, amplifiers and the like have to be mounted inside a pole "without" increasing the pole diameter" is difficult if not impossible to meet. While it is understood that the City does not want to see the wiring, some latitude with the pole's diameter may be need. A "substantial conformance" review would be preferable, especially if the alternative is vaulting and all the difficulties associated with that. Section 20.49.100 (Operational & RF Compliance and Emission Report) — Given the cost of these reports and the over - whelming pass rate, several Planning Commissioners' mentioned having these reports being required at the discretion of the City. The draft Ordinance currently requires a site specific RF Report for each site. If you have any questions or need additional information regarding these comments, please do not hesitate to contact me. Thank you again for the opportunity to comment, we look forward to working with the City on a new and improved Ordinance. Sincerely, Paul R. O'Boyle, Esq. P. 3 of 3 CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT December 19, 2013 Agenda Item No. 4 SUBJECT: Wireless Telecommunications Facilities Ordinance Update (PA2012 -057) • Code Amendment No. CA2012 -004 PLANNER: James Campbell, Principal Planner (949) 644 -3210, icampbell(@newportbeachca.00v PROJECT SUMMARY An amendment to the Newport Beach Municipal Code ( "NBMC ") to update regulations regarding wireless telecommunication facilities ( "Telecom Facilities "). Regulations currently contained in Chapter 15.70 would be updated and relocated to Title 20 (Planning and Zoning) and Chapter 15.70 would be rescinded in its entirety. RECOMMENDED ACTION 1. Conduct a public hearing; and 2. Adopt the attached resolution recommending City Council approval of the proposed update of the Wireless Telecommunication Ordinance (CA2012 -004) (Attachment PC -1). On November 21, 2013, the Planning Commission conducted a public hearing, directed staff to make specific revisions to the ordinance, and continued consideration to this meeting. Attached to this report is the updated resolution recommending City Council adoption of the proposed amendment. The draft resolution includes the draft telecom ordinance which incorporates the changes discussed at the November 215' hearing, as marked in the text. The revised draft was emailed on December 91h to the interested party list and staff conducted follow -up discussions with industry representatives to determine if additional comments would be submitted. The Commission's recommendation is scheduled to be considered by the City Council on January 14, 2014. ENVIRONMENTAL REVIEW This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. Wireless Telecommunications Facilities Ordinance (PA2012 -057) December 19, 2013 Page 2 NOTICE Notice of this continued public hearing was published in the Daily Pilot, including an eighth page advertisement, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website. Prepared by: W J es Campbell, Principal Plariner Attachments Submitted by: PC -1 Draft Resolution with Updated Regulations I 21161091 M- ATTACHMENT PC -1 Draft Resolution Page Intentionally Blank RESOLUTION NO. #### A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING CITY COUNCIL ADOPTION OF CODE AMENDMENT NO. CA2012 -004 RELATED TO THE REGULATION OF WIRELESS TELECOM UN[CATIONS FACILITIES (PA2012 -057) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. On March 27, 2012, the City Council initiated an amendment of the Municipal Code to comprehensively update the City's wireless telecommunications facilities ordinance. 2. The Planning Commission conducted study sessions on July 19, 2012, September 6, 2012, September 19, 2013, and October 17, 2013, where potential changes to the ordinance were discussed. 3. A public hearing was held on November 21, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. SECTION 3. FINDINGS. 1. The proposed amendment will provide a balanced review process consistent with existing procedures provided within the Zoning Code (Title 20). Proposed telecom facilities that are not visible will be permitted by the Zoning Clearance process. Proposed telecom facilities that would be visible will be subject to either a Minor Use Permit or a Conditional Use Permit if a new free standing structure is proposed. 2. The proposed amendment does not increase the potential height of telecommunications facilities and does not allow them in areas where they are currently prohibited. Planning Commission Resolution No. 2Or21 3. The proposed amendment includes adequate design, development, and screening standards to ensure that future telecommunications facilities are visually compatible with the community. 4. The proposed amendment includes provisions reflective of state and federal law and provides for the administrative review of minor modifications to, or the collocation of, existing telecommunications facilities. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby recommends approval of Code Amendment No. CA2012 -004 as set forth in Exhibit "A." PASSED, APPROVED AND ADOPTED THIS 19TH DAY OF DECEMBER, 2013. AYES: NOES: ABSTAIN ABSENT: fY Bradley Hillgren, Chairman BY: Kory Kramer, Secretary Planning Commission Resolution No. JOt21 EXHIBIT A Code Amendment No. CA2012 -004 Section 1: On the effective date of this Code Amendment, Chapter 15.70 of the Newport Beach Municipal Code is hereby repealed. Section 2: Table 2 -1 within Section 20.18.020 (Residential Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -1 remaining unchanged: Section 3: Table 2-4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2-4 remaining unchanged: R -A R -1 R -BI RM Specific Use Specific Use R -2 RMD Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication — — — MUP /CUP /LTP Chapter 20.49 Facilities LTP LTP 20.49 Facilities Section 3: Table 2-4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2-4 remaining unchanged: Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: OA OG OM OR Specific Use Specific Use Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities LTP LTP 20.49 Facilities Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: CC CG CM CN CV Specific Use Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Chapter Telecommunication LTP LTP LTP LTP LTP 20.49 Facilities Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Planning Commission Resolution No. tine WAI Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Mu -V MU -MM (6) MU -DW MU -CV /15th Specific Use MU -W2 Regulations Wireless CUP /MUP/ St. (7) Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ LTP Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities LTP LTP LTP LTP Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: MU -W1 Specific Use Specific Use IG (5)(6) MU -W2 Regulations Wireless CUP /MUP/ CUP /MUP/ Chapter 20.49 Telecommunication LTP CUP /MUP/ Chapter 20.49 Facilities LTP LTP Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use IG Regulations Wireless CUP /MUP/ PF Telecommunication PR Chapter 20.49 Facilities LTP CUP /MUP/ Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use Os PF PI PR Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication Chapter 20.49 Facilities LTP LTP LTP LTP Planning Commission Resolution No. bOT21 Section 7: Chapter 20.49 (Wireless Telecommunication Facilities) of the Newport Beach Municipal Code as is hereby adopted as shall read as follows: Chapter 20.49 — Wireless Telecommunications Facilities Sections 20.49.010 — Purpose 20.49.020 — Effect of Chapter 20.49.030 — Definitions 20.49.040 — Telecom Facility Preferences and Prohibitions 20.49.050 — General Development and Design Standards 20.49.060 — Permit Review Procedures 20.49.070 — Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 —Agreement for Use of City -owned or City -held Trust Property 20.49.090 — Modification and Collocation of Existing Telecom Facilities 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report 20.49.110 — Right to Review, Revoke or Modify a Permit 20.49.120 — 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 wireless telecommunication facilities ( "Telecom Facilities') on public and private property consistent with State and federal law while ensuring public safety, minimizing the visual effects of Telecom Facilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the visual impacts of Telecom Facilities on the community. B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and minimize fetheir visual impact on the community. C. The provisions of this Chapter are not intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecommunication services. This Chapter shall be applied to providers, operators, and maintainers of telecommunication services regardless of whether authorized for subject to by -State or federal regulations. This Chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecommunication services. 20.49.020 — Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities as defined herein and that provide wireless voice and /or data transmission such as, but not limited to, cell phone, internet, and radio relay stations. Planning Commission Resolution No. Page 6 of 21 B. Permit and /or Agreement Required. Unless the provisions of this Chapter provide otherwise, prior to installation 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) in accordance with Section 20.49.060 (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 his or her designee prior to installation of the Facility, consistent with Section 20.49.080 (Agreement for Use of City -owned or City -held Trust Property). C. Exempt Facilities. The following types of Telecom Facilities farilitierare 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. 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. 5. 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 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 any 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: Planning Commission Resolution No. Page 7 of 21 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 was lawfully constructed, erected, or approved prior to [INSERT 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 deemed a legal nonconforming Facility. Legal nonconforming Facilities shall comply at all times with the laws, ordinances, regulations, and any conditions of approval in effect at the time the Facility was approved, and any regulations pertaining to legal, nonconforming uses or structures that may be applicable pursuant to provisions f the Municipal Code or federal and State laws as they may be amended or enacted, in the future. 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 and rotated through a vertical mast or tower interconnecting the beam and Antenna support structure, all of which elements are deemed to be part of the Antenna. C. Base Station. Base Station means the electronic equipment and appurtenant Support Equipment at a Telecom Facility installed and operated by the Telecom Operator that together perform the initial signal transmission and signal control functions. A Base Station does not include the Antennas, Antenna support structure, or any portion of Distributed Antenna System (DAS). D. 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. E. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. F. 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 "hub" or "hotel" where Planning Commission Resolution No. Page 8 of 21 the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. G. Facility Classes. Classes of Telecom Facilities and the attendant Support Equipment are categorized into the following 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 Antennas): 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 with or without a Limited Term Permit. H. FCC. FCC means the Federal Communications Commission, or 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. The definition of Operator or Telecom Operator does not include a property owner(s) that leases property to an Operator for a Telecom Facility. Planning Commission Resolution No. Page 9 of 21 M. Public Right -of -Way. Public Right -of -Way or ( "PROW ") means the improved or unimproved surface of any public 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. The PROW does not include private streets. 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 such as 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 reasonable observer do not qualify within this definition. For example, an artificial tree may not aet-be considered to be 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. Telecommunications) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends 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 street light standard which is replaced with a new street light standard to permit the addition of Antennas shall not be considered a Wireless Tower, but rather a replacement street light standard. Planning Commission Resolution No. IIDi3MAI 20.49.040 — Telecom Facility Preferences and Prohibited Locations 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 of Facilities, from the most preferred (1) to lease preferred (4). 1. Collocation of a new Facility at an existing Facility. 2. Class 1. 3. Class 2 and Class 3. 4. Class 4. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: 1. On properties zoned for single -unit or two -unit residential development including equivalent designations within a Planned Community District or Specific Plan districts except if located on common area lots developed with community facilities, landscape lots, or private streets. 2. On properties zoned for multi -unit residential development and mixed -use development including equivalent Planned Community District or Specific Plan districts 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 Facility. 4. On traffic control standards (traffic signal poles). 20.49.050 — 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 Facility as visually inconspicuous as practicable. To the greatest extent Feasible, Facilities shall be designed to minimize the visual impact of the Facility by means of location, placement, height, screening, landscaping, and 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. Planning Commission Resolution No. Page 11 of 21 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 Facility, including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop. S. 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 Facilities at the proposed location. B. Public View Protection. All new or modified Telecom Facilities, whether approved by administrative or discretionary review, shall comply with Section 20.30.100 (Public View Protection). Additionally, potential impacts from a new or modified Telecom Facility to public views that are not identified by General Plan Policy NR 20.3 shall be the «.'s Gene.,' °'a; pelieies shall evaluated to determine if inclusion in Policy NR 20.3 would be appropriate. If deemed appropriate for inclusion, the potential impacts to such public views shall be C. Height. 1. The Planning Commission or City Council may approve or conditionally approve a CUP for a Telecom Facility that exceeds the maximum height limit for the zoning district in which the Facility is located provided it does not exceed the maximum height limit by 15 feet, only after making all of the required findings in Section 20.49.060(H) (Permit Review Procedures). 2. All Telecom Facilities shall comply with height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport Environs Land Use Plan for John Wayne Airport and Airport Land Use Commission Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. 3. Telecom Facilities installed on streetlights, 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. 4. 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 proposed Antennas do not extend above the top of the Utility Pole or Utility Tower. 5. Telecom Facilities disguised as flagpoles may be installed provided they meet applicable height limits for flagpoles provided in Section 20.30.060. Planning Commission Resolution No. Page 12 of 21 D. Setbacks. Proposed Telecom Facilities shall comply with the required setback established by the development standards for the zoning district in which the Facility is proposed to be located. Setbacks shall be measured from the any part of the 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 harmony and scale with the surrounding area, screens the installation from view, and prevents the 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. 2. Painting and /or coloring the Telecom Facility to blend into the predominant visual backdrop. 3. Siting the Telecom Facility to utilize existing features (such as buildings, topography, vegetation, etc.) to screen or hide the Facility. 4. Utilizing simulated natural features (trees, rocks, etc.) to screen or hide the Telecom Facility. S. Providing Telecom Facilities of a size that, as determined by the City, is not visually obtrusive such that any effort to screen the Facility would not create greater visual impacts than the Facility itself. 6. To the greatest extent practicable, new Class 4 Facilities shall be designed and sited to facilitate the collocation of one additional Telecom Operator. 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 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 must be considered for all Facility installations: 1. Class 1 (Stealth /Screened) Installations: a. All Telecom Facility components, including all Antennas, Antenna panels, cables, wires, conduit, mounting brackets, and Support Equipment, shall be fully screened, and mounted either inside the building or structure, or behind 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. Planning Commission Resolution No. Page 13 of 21 c. When a Telecom Facility is proposed within an existing or new architectural feature such as a steeple, religious symbol, tower, cupola, clock tower, sign tower, etc., the Facility shall be architecturally compatible with the existing structure or building. 2. Class 2 (Visible) 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, wires, conduit, mounting brackets or any other associated support equipment shall be visible. 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) Installations: a. Whenever Feasible, new Antennas proposed to be installed in the public right -of -way shall be placed on existing utility structures, streetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles, 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. New or replacement vertical structures may be allowed when authorized by the Municipal Code and approved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed provided they match existing or planned poles within the area. c. 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 pole. 4. Class 4 (Freestanding Structure) Installations: a. The installation of new Lattice Towers or Monopoles with visible antennas or Antenna Arrays is strongly discouraged due to the visual effects of such facilities. Preferred Monopole designs include fully screened Antennas without visible brackets, cables, or conduit. Additionally, any Lattice Tower or Monopole should be sited in the least obtrusive location as practicablepes4bl e. Planning Commission Resolution No. Page 14 of 21 b. The construction of new freestanding structures such as signs, monoliths, pyramids, light houses, or other similar vertical structures shall be designed and sited to appropriately complement a site and screen all elements of the Telecom Facility. c. The installation of artificial rocks shall match in scale and color other with rock outcroppings in the general vicinity of the proposed site. An artificial rock screen may not be considered appropriate in areas that do not have natural rock outcroppings. d. The installation of artificial trees or shrubbery is strongly discouraged if they are obviously not natural to the average reasonable observer. When an artificial tree or shrubbery is proposed, it 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. All Antennas and Antenna supports shall be contained within the canopy of the tree design or other vegetation comparable to that being replicated by the proposed screening elements. Finally, the addition of new comparable living vegetation may be necessary to enhance the artificial tree or shrubbery screening elements. e. Flagpoles 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. Class 5 (Temporary) Installations: 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 application review and permitting process in consideration of the temporary nature of the 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 practicable, 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 Telecom Facilities. For building or structure - mounted Antenna installations, Support Equipment for the Facility may be located inside the building, in an underground vault, or on the roof of the building that the 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. (2) Roof - Mounted Telecom Facilities. All screening materials for roof- mounted Facilities shall be of a quality and design compatible with the architecture, color, texture and Planning Commission Resolution No. Page 15 of 21 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 Telecom Facilities. For freestanding Facilities installations, not mounted on a building or structure, Support Equipment for the 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. (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 existing utilities services (e.g., telephone, power, cable TV) are located underground, the Support Equipment shall be placed underground if required by other provisions of the Municipal Code. 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 provided they meet applicable standards of Title 13 unless otherwise precluded by the Municipal Code. (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 utility or streetlight pole without materially increasing the pole diameter or shall be installed in the vault enclosure supporting the Facility. Planning Commission Resolution No. Page 16 of 21 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 United States Flag Code (4 U.S.C. § 1 et seq.). 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 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. I. Nonconformities. A proposed or modified 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 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 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, dying, or damaged. 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 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 etseq.). 20.49.060 — Permit Review Procedures A. Application Procedures. Applications for Telecom Facilities shall be subject to Chapters 20.50 (Permit Application Filing and Processing), 20.52 (Permit Review Procedures), and 20.54 (Permit Implementation, Time Limits, and Extensions) unless otherwise modified by this Section. Applications shall be processed consistent with State and federal regulations as the same may be amended from time to time such as the application processing times set forth in FCC Declaratory Planning Commission Resolution No. Page 17 of 21 Ruling FCC 09 -99. All costs associated with the permit application review shall be the responsibility of the applicant, including any expense incurred by the City for outside third -party technical review required by the application. B. 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 the Municipal Code including but not limited to the provisions of Title 13 as it may be amended from time to time. C. Application Submission Requirements for Telecom Facilities on City -owned or City -held Trust Properties. Prior to the submittal for any application for any Facility located on any City -owned property or City -held Trust Property, the applicant shall first obtain written consent to the application from the City Manager or his or her designee. D. Permit Required. All Telecom Facilities shall obtain a MUP, CUP, LTP, or ZC as provided for in Table 4 -1 unless prohibited by Section 20.49.040(B) . Notwithstanding permits identified in Table 4 -1, any application for a Facility that proposes to exceed the maximum height limit of the applicable zoning district in which the Facility is located shall require approval of a CUP by the Planning Commission. Table 4 -1 Permit Requirement for Telecom Facilities Facility Class Permit Class 1 ZC Class 2 MUP Class 3 MUP Class 4 CUP Class 5 LTP E. Review of Collocated Facilities. Notwithstanding any provision of this Chapter to the contrary, and consistent with California Government Code section 65850.6 (as amended or superseded), the addition of a new Facility to an existing Facility resulting in the establishment of a Collocated Telecom Facility shall be allowed without discretionary review if it complies with Section 20.49.090. If a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6 and Section 20.49.090, the Facility shall be reviewed pursuant the review procedures provided in Table 4 -1. F. 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 Facility will interfere Planning Commission Resolution No. with emergency communications devices, the applicant shall work with the Police Department to avoid interference. G. Public Notice and Public Hearing Requirements. An application for a MUP, CUP or LTP shall require public notice and a public hearing in accordance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all 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 findings: a. The proposed Telecom Facility is visually compatible with the surrounding neighborhood. b. The proposed Telecom Facility complies with 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. d. An alternative plan that would result in a higher preference Facility Class category for the proposed Facility is not available or reasonably Feasible and desirable under the circumstances. 2. Findings to Increase Height. The Planning Commission may approve, or conditionally approve an application for a Telecom Facility which includes a request to exceed the maximum height limit for the zoning district in which the Facility is located up to a maximum of 15 feet only after making each of the following findings in addition to the General findings set forth in 20.49.060989 (H) (1) and 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. b. Establishment of the Telecom Facility at the requested height is necessary to provide service. 20.49.070 — Permit Implementation, Time Limits, Extensions, and Appeals Planning Commission Resolution No. Page 19 of 21 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). 20.49.080 — Agreement for Use of City -Owned or City -Held Trust Property An application 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 of the Municipal Code and any applicable provisions of the City Council Policy Manual. Prior to City approval of a license agreement, the applicant shall obtain a MUP, CUP, LTP or ZC. Upon the issuance of a MUP, CUP, LTP or ZC, as required, and with an approved license 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. 20.49.90 — Modification and Collocation of Existing Telecom Facilities Notwithstanding any provision in this Chapter, 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 administrative review and approval of a ZC without processing 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 (5 %) of the physical dimensions of the original approved Telecom Facility, or as otherwise defined by applicable provisions of State or federal law . Each application submitted under this section for a modification or collocation 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 Facility; and, a graphic depiction of the 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 Planning Commission Resolution No. Page 20 of 21 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 removed and restored to its pre- modification condition if any material statement made with respect to the Facility application is false or the modifications as actually made would have required a discretionary review had the plan for the Facility accurately depicted the modifications. 20.49.100 - 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. WithiA thiAY (39) days a4eF L..tallati. A of a Telerem 6...414.. Upon the request, and at the discretion of, the Community Development Director, a radio frequency (RF) compliance and emissions report shall be prepared by a qualified RF engineer acceptable to the City and submitted.shall he submitted +e- eFdeFto The RF compliance and emissions report must demonstrate that the Facility is operating at the approved 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 Facility operating at its maximum effective radiated power level, rather than on estimations or computer projections. If the report shows that the 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 use of the Facility be suspended until a new report has been submitted confirming such compliance. 20.49.110 - Right to Review, Revoke or Modify a 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. 20.49.120 - 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. Planning Commission Resolution No. Page 21 of 21 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 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 to use such Facility and, if applicable, the owner of the affected real property, providing thirty days from the date of the abandonment 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 Facility within 30 days of the transfer. 3. Remove the Telecom Facility and restore the site. C. Removal by City. 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 Facility or any part thereof. The owner of the premises upon which the abandoned Facility was located and all prior operators of the 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 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 all costs incurred by the City for the 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. CITY OF NEWPORT BEACH NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GIVEN that on Tuesday, January 14, 2014, at 7:00 p.m. or soon thereafter as the matter shall be .heard, a public hearing will be conducted in the Council Chambers at 100 Civic Center Drive, Newport Beach. The City Council of the City of Newport Beach will consider the following application: Wireless Telecommunications Facilities Ordinance - Update of the City's ordinance regulating design, sitting, and processing of wireless telecommunications facilities. Chapter 15.70 of the Municipal Code will be replaced by a proposed new Chapter in the Zoning Code, (Chapter 20.49). The update principally modifies the review process and does not change where telecom facilities can potentially be located. The update maintains screening requirements and existing height limits in order to minimize or avoid visual impacts. NOTICE IS HEREBY FURTHER GIVEN The proposed amendment of the Municipal Code is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guideline Section 15061(b)(3). CEQA applies only to projects which have the potential of causing a significant effect on the environment. In this case; it can be •seen with certainty that there is no possibility that the proposed update of the City's wireless telecommunications facility ordinance will have a significant effect on the environment and, therefore, the activity is not subject to CEQA. The revisions to the ordinance do ,not authorize any development and, therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. NOTICE IS HEREBY FURTHER GIVEN that on December 19, 2013, the Planning Commission of the City of Newport Beach recommended that the City Council adopt CA2013 -004 (Wireless Telecommunications Facilities • Ordinance Update).. All Interested parties may appear and present testimony in regard to this application. if you challenge this project in court, you may be limited to raising only those issues you raised at the public hearing or in written correspondence delivered to the City, at, or prior to, the public hearing. Administrative procedures for appeals are provided in the Newport Beach Municipal Code Chapter 20.64. The application may be, continuance will not be provided. Prior to the public hearing the agenda, staff report, and documents may be reviewed at the City Clerk's Office, 100 Civic Center Drive, Newport Beach, California, 92660 or at the City of Newport Beach website at www.newportbeachca.gov. Individuals not able to attend the meeting this application. For questions regarding this public hearing item please contact James Campbell, Principal Planner at (949) 644 -3210 or icampbell(a)newportbeachca.gov. Project File' No.: PA2012 -057 Activity No.: CA2012 -004 Zone: All Zoning Districts General Plan: All Land Use Designations Location: Citywide Applicant: City of Newport . Beach �EW� ?t.UV'^I�'V }'9) Leilani 1. Brown, MMC, City Clerk City of Newport Beach CITY OF NEWPORT BEACH NOTICE OF PUBLIC HEARING NOTICE 4S HEREBY GIVEN that on Tuesday, January 14, 2014, at 7:00 p.m. or soon thereafter as the matter shall be heard, a public hearing will be conducted 'in the Council Chambers at 100 Civic Center Drive, Newport Beach. The City Council of the City of Newport Beach will consider the following application' Wireless Telecommunications Facilities Ordinance - Update of the City's ordinance regulating design, sitting, and processing of wireless telecommunications facilities. Chapter 15.70 of the Municipal Code will be replaced by a proposed new Chapter in the Zoning Code (Chapter 20.49). The update principally modifies the review process and does not change where telecom facilities can potentially be located. The update maintains screening requirements and existing 'height limits in order to minimize or avoid visual impacts. NOTICE IS HEREBY FURTHER GIVEN The proposed amendment: of the Municipal Code is exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA. Guideline Section 15061.'(b)(3). CEQA applies only to projects which have the potential of causing a significant effect, on the environment. In this case, it can be seen with certainty that there is no possibility that the proposed update of the City's wireless telecommunications facility ordinance will have a significant effect on the environment and, therefore, the activity is not subject to CEQA. The revisions to the ordinance do not authorize any development and, therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. NOTICE IS HEREBY FURTHER GIVEN, that on December 19, 2013, the Planning Commission of the City of Newport Beach recommended that the City Council adopt £A2013 -0.04 (Wireless Telecommunications Facilities Ordinance Update). All interested parties may appear and present testimony in regard to this application. If you challenge this project in court, you may be limited to raising only those issues you raised at the public hearing or in written correspondence delivered to the City, at, or prior to, the public hearing.. Administrative procedures for appeals are provided in the Newport. Beach Municipal Code Chapter 20.64. The application may be continuance will not be provided. Prior to the public hearing the agenda, staff report, and documents may be reviewed at the City Clerk's Office, 100 Civic Center Drive, Newport Beach, California, 92660 or at the City of Newport Beach website at www.newportbeachc8.gov. Individuals not able to attend the meeting this application. For questions regarding this public hearing item please contact James Campbell, Principal Planner at (949) 644 -3210 or I cam pbellPnewportbeachca.gov. Project File No.: PA2012 -057 Activity No.: CA2012 -004 Zone: All Zoning Districts General Plan: All Land Use Designations Location: Citywide Applicant: City of Newport. Beach It �' /s/ Leilani I. Brown, MMC, City Clerk u r City of Newport Beach C, yr a p STATE OF CALIFORNIA) ) SS. COUNTY OF ORANGE ) am a citizen of the United States and a resident of the County of Los Angeles; I am over the age of eighteen years, and not a party to or interested in the notice published. I am a principal clerk of the NEWPORT BEACH /COSTA MESA DAILY PILOT, which was adjudged a newspaper of general circulation on September 29, 1961, case A6214, and June 11, 1963, case A24831, for the City of Costa Mesa, County of Orange, and the State of California. Attached to this Affidavit is a true and complete copy as was printed and published on the following date(s): Saturday; January 4, 2014 I certify (or declare) under penalty of perjury that the foregoing is true and correct. Executed on January 6, 2014 at Los Angeles, California i nature CHTY OF NEWPORT BEACH I NOTOCE "OIF PU BUC HRARON NOTICE IS HEREBY, GIVEN that on Tuesday, January 14, 2014; at 7:00 p.m. or soon thereafter as the matter shall b heard a public hearing will be conducted indhe Council Chambers ay10g Civic Center Drive; Newport Beach.' The b Council of the City of Newport Beach vr01 consider the following application: Wireless Telecommunications Facilities Ordinance - Update of the City's ordinance regulating design, silting, an Of Code in order to minimize or avoid NOTICE IS HEREBY FUBTHEB GIVEN that ua0ecemher -Ig. -2013; the Planning,Coinmisslon of the City of Newport Beach recommended that the City Council adoptCA2013.004 (Wireless Telecommunications Facihlies Ordinance Updafe). All interested parties may appear and present testimony in regard to this app lemloo. If you challenge this protect in court, you may limited to raising only those issues you raised at the public hearing an in written correspondence delivered Far questions regarding this public heanng,item please cuni_ooWames Campbe%,PrinclpalPlannerai (949)'644-3210 or'iemohell�ne nortbeachia aw Project .File Na . PA2012s057 Activny No CA2012 004 Zono :,AII Zoning 0isbricts General Plan: UseDesignations Lacatl4n Citywide , .Applicant CilyofNewport Beach /s/LedaniYHrown MMC; EityCerk " ; �Cdy of Newport'Beach' -7� J I = - i J L`