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HomeMy WebLinkAbout03 - Wireless Telecommunications FacilitiesCity Council Meeting October 8, 2002 Agenda Item No. 3 ORDINANCE NO. 2002 -24 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADDING CHAPTER 15.70 TO THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO WIRELESS TELECOMMUNICATION FACILITIES The City Council of the City of Newport Beach finds that: A. The regulations and design standards set out in this chapter are necessary to protect public health, safety, welfare, and aesthetic interests, and that the enforcement thereof will not result in the imposition of excessive costs on operators and users of wireless telecom services. The City Council finds, further, that these regulations and design standards neither materially limit a person's ability to receive wireless telecommunication services nor create unfair competition among wireless telecom service providers. B. Section 704 of the 1996 Telecommunications Act (47 U.S.C. §332(c)) preempts local regulation of the placement, construction, and modification of wireless 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. NOW THEREFORE, the City Council of the City of Newport Beach, California, HEREBY ORDAINS as follows: SECTION 1: Chapter 15.70 is hereby added to the Newport Beach Municipal Code read as follows: Chapter 15.70 WIRELESS TELECOMMUNICATION FACILITIES Sections: 15.70.010 Purpose and Intent 15.70.020 General Provisions 15.70.030 Definitions 15.70.040 Available Technology 15.70.050 Height and Location 15.70.060 Design Standards 15.70.070 Permit Review Procedures 15.70.080 Radiation Report 15:70.090 Right to Review or Revoke Permit 15.70.100 Removal of Telecom Facilities 15.70.110 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. 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: 1. Conditions in any permit or license issued by a local, state, or federal agency which has jurisdiction over the telecom facility. 2 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: 1. 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. 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 3 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. 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. 4 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, omnidirectional 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. 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. 5 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. 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 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 35 feet in the "26!35 Foot Height Limitation Zone "). Over - Height Antennas. The City Council may approve antennas up to 15 feet above the preceding maximum building height limitations under the special review provisions of Section 15.70.070 of this Chapter. "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 d istricts. 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. Co- Location Required. To limit the adverse visual effects of a proliferation of telecom sites in the City, a new telecom facility proposed within 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. 7 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. 1. 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. 93 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. Niqht 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. 15.70.070 Permit Review Procedures A. Reviewing Authori ty. All applicants for telecom facilities not within the public right - of -way shall apply for a permit from the Planning Department as follows: 1. 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: D 1. 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 300 feet of the proposed telecom facility taken from the latest assessor rolls. Me 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 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 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. 11 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 Propert y. 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 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 12 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 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 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 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 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(B). C. Any telecom application which the department director determines requires special review in order to serve the public interest. Special Review Procedures. Applications subject to special review shall be reviewed under the following procedures: 13 a. Notification describing the proposal and the date and time of City Council review shall be mailed at least 10 days in advance of the City Council review date to property owners of record within 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 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. 15.70.080 Radio Frequency Compliance and Radiation Report Within 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. 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, 14 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. 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 30 days prior to such action. The operator or owner of the affected real property shall have 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: 1. 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. 15 B. Abandonment. Any telecom facility that is not operated for a continuous period of 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: 1. 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 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. 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. 16 SECTION 2: That 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 to more sections, sub- sections, sentences, clauses and phrases be declared unconstitutional. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 24th day of September, 2002, and adopted on the 8th day of October, 2002, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES,COUNCILMEMBERS ABSENT, COUNCILMEMB SAY• 7 ATTEST: CITY CLERK 17 AGENDA ITEM No. 3 TO: Mayor and Members of the Newport Beach City Co FROM: Dave Kiff, Assistant City Manager COUNCIL AGENDA Robin L. Clauson, Assistant City Attorney Telecommunications Ad Hoc Committee NO' ` y JT y SUBJECT: Vt Reading of Ordinance 2002 - Relating to a Wireless Telecommunications Ordinance; Adoption of Council Policy L -23 Relating to the Siting of Wireless Telecommunications Facilities on City -owned Land BACKGROUND: In November 2000, the City Council formed the Telecommunications Ad Hoc Committee and directed it to address the following issues: 1. UPDATING THE MUNICIPAL CODE RELATING TO CABLE TELEVISION. The City's municipal code chapter that relates to cable television requires significant amendments before the City can enter into any effective franchise agreements with Adelphia and Cox. 2. UPDATING THE MUNICIPAL CODE AND ENACTING A COUNCIL POLICY REGARDING TELECOMMUNICATIONS. The City should adopt a new section to the municipal code relating to telecommunication so that we can effectively address: • Where to site new wireless antennas; • Whether and where to use City -owned property or rights -of -way for antennas; • What design and structural standards the City should apply to antennas, whether placed on rights -of -way or public or private property; • What fee should be levied for the use of the public property for antennas; • How to effectively ensure that the City's emergency radio network is not adversely impacted by siting activity. 3. FRANCHISE RENEWAL NEGOTIATIONS. The City's two major cable television franchise agreements with Cox Communications and Adelphia expire on January 27, 2003. The Committee has been actively working on a Community Needs Assessment in anticipation of renewal. Mayor and Members of City Council September 24, 2002 Page 2 The Telecom Committee, which includes Council members John Heffernan (Chair) and Gary Adams and community members Leslie Daigle and Don Boortz, have met since early 2001 to work on these tasks. In March 2002, the Committee considered draft guidelines for the siting of wireless telecommunications facilities on public and private property. At an April 23, 2002 joint=meeting'and Study Session of the City Council and the Committee, council and committee members suggested that staff proceed to: Develop a Council policy on the use of public property for telecommunications facilities; and Develop a Telecommunications Ordinance that reflected the City's Zoning Code for the placement of such facilities on private and public land. The April 23, 2002 staff report is available on the City's Web site for those who wish more information about the earlier discussions (www.city.newport- beach.ca.us). After the April 23, 2002 meeting, we engaged Larry Lawrence of Lawrence and Associates to help us prepare any ordinance(s) associated with this effort. We returned with: 1 -- A Wireless Telecommunications Ordinance 0 PURPOSE: To describe when, where, and how telecommunications facilities like micro-cell antennas and more can be placed on public land, public right -of -way, and private property. KEY ISSUES ADDRESSED: The City has a limited right to regulate placement of these facilities. • No facilities in residentially -zoned or open space areas. A prioritization of the types of cell -site structures and placements. • The permit process by which an applicant must submit a proposal. • City Council review of some, but not all, applications. Removal of abandoned facilities. 2 - A Proposed Council Policy on the Siting of Wireless Telecommunications Facilities on City -owned Land 0 Mayor and Members of City Council September 24, 2002 Page 3 PURPOSE: To describe which City -owned or City -held Trust properties are eligible for the siting of telecommunications facilities by private- sector providers. KEY ISSUES ADDRESSED: Adopts a list of eligible sites. • Adopts a list of ineligible sites. • Requires an Agreement. • Requires a Licensing Agreement for all facilities on public land. • Allows the City Council to stop the approval process for a specific site. Recent History. As noted, the Council and the Committee met in April 2002 to discuss how the City might address telecommunications siting issues. The Committee met again on August 21, 2002, to review these two documents. They forwarded them to the City Council, where the Council heard both of these items at an August 27, 2002 Study Session. Prior to, during, and after the Study Session, members of the City staff and members of the wireless telecommunications siting industry offered suggestions as to improvements to the Ordinance that would make it more effective. The Telecom Committee considered these changes and others at a September 13, 2002 meeting. The proposed Ordinance attached to this staff report reflects the Committee's final review. Later On in 2002. A Public Right -of -Way ( "PROW ") Ordinance will follow the Council's consideration of the Telecom Ordinance and Council Policy. The PROW Ordinance establishes the standards and procedures that the City would use regarding proposals to place facilities within the public right -of -way. With review by the Committee and by the industry, the Committee will forward the documents to the City council for formal consideration. What the Draft Right -of -Way Ordinance Will Address. PURPOSE: To describe when, where, and how telecommunications facilities like micro -cell antennas and more can be placed on public rights - of -way and to ensure that the applicant appropriately compensates the public and protects aesthetic and related concerns for doing so. KEY ISSUES ADDRESSED: • Placements in the right -of -way need authorization via an Agreement from the Public Works Department. Mayor and Members of City Council September 24, 2002 Page 4 • Sets a term for the Agreements. • Sets forth insurance and hold harmless provisions. • Requires undergrounding where area utilities are undergrounded. • Applicant may appeal a denial to the City Council. Removal of abandoned facilities. ENVIRONMENTAL REVIEW This proposal has been reviewed, and it has been determined that it is categorically exempt under the requirements of the California Environmental Quality Act under Class 1, (existing facilities) and 3 (new construction or Conversion of Small Structures). The ordinance will establish procedures for the permitting, leasing, and licensing of telecommunication facilities, of telecommunication companies providing wireless cellular service in the City. Telecommunication companies are public utilities and must have a certificate of public convenience and necessity from the Public Utilities Commission to provide wireless telephone services in the State. This ordinance will codify the City's current permitting process with regards to antennas and supporting equipment to provide the service in the City. Currently, these facilities are permitted by issuance of a building permit, and his ordinance would establish issuance of a telecom permit. The permitting procedure involves negligible expansion of services beyond that already being provided and complies with Federal Telecommunications Act of 1996. RECOMMENDED ACTION: 1) Introduce Ordinance No 2002 - relating to Wireless Telecommunications and pass to second reading on October 8, 2002; and 2) adopt new Council Policy L -23. ATTACHMENTS: Attachment A - Wireless Telecom Ordinance Attachment B -- Proposed Council Policy L -23 F:\ users\ cat\ shared\ da\ CCmemo \TelecomOrd &CouncilPolicy.doc 0 Attachment A 0 ORDINANCE NO. 02- AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADDING CHAPTER 15.70 TO THE NEWPORT BEACH MUNICIPAL CODE PERTAINING TO WIRELESS TELECOMMUNICATION FACILITIES The City Council of the City of Newport Beach finds that: A. The regulations and design standards set out in this chapter are necessary to protect public health, safety, welfare, and aesthetic interests, and that the enforcement thereof will not result in the imposition of excessive costs on operators and users of wireless telecom services. The City Council finds, further, that these regulations and design standards neither materially limit a person's ability to receive wireless telecommunication services nor create unfair competition among wireless telecom service providers. B. Section 704 of the 1996 Telecommunications Act (47 U.S.C. §332(c)) preempts local regulation of the placement, construction, and modification of wireless 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. NOW THEREFORE, the City Council of the City of Newport Beach, Califomia, HEREBY ORDAINS as follows: SECTION 1: Chapter 15.70 is hereby added to the Newport Beach Municipal Code read as follows: Chapter 15.70 WIRELESS TELECOMMUNICATION FACILITIES Sections: 15.70.010 Purpose and Intent 15.70.020 General Provisions 15.70.030 Definitions 15.70.040 Available Technology 15.70.050 Height and Location 15.70.060 Design Standards 15.70.070 Permit Review Procedures E 15.70.080 Radiation Report 15.70.090 Right to Review or Revoke Permit 15.70.100 Removal of Telecom Facilities 15.70.110 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. 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: 1. Conditions in any permit or license issued by a local, state, or federal agency which has jurisdiction over the telecom facility. 0 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: 1. 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. 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 3 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. rd is 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. Telecommunications) 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, omnidirectional 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. 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. I.7 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: 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 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 35 feet in the "26/35 Foot Height Limitation Zone "). 2. Over - Height Antennas. The City Council may approve antennas up to 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. 0 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 N 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 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. 7 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. 1. 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. 0 9 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. 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: 1. 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 0 information acceptable to the reviewing authority: 1. 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 operators 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 300 feet of the proposed telecom facility taken from the latest assessor rolls. 0 10 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 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 would 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 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. 11 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. G. 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. Citv 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 Propert y. 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 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 12 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 would 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 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 CitV Council. Within 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 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. 1. Applicability. Proposals requiring special review include the following: a. Telecom antennas up to 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(B). 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 10 days in advance of the 13 City Council review date to property owners of record within 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 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. 15.70.080 Radiation Report Within 30 days after installation of a telecom facility, a radio frequency (RF) radiation report prepared by a qualified RF engineer acceptable to the City shall be submitted in order to demonstrate that the facility complies with FCC standards. 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. 0 14 • 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. 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 30 days prior to such action. The operator or owner of the affected real property shall have 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: 1. Reactivate use of the telecom facility; 15 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 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: 1. 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 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 Propert y. 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. 0 16 0 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. SECTION 2: That 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 to more sections, sub- sections, sentences; clauses and phrases be declared unconstitutional. SECTION 3: The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. This Ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach held on the 24th day of September, 2002, and adopted on the 8th day of October, 2002, by the following vote, to -wit: AYES, COUNCILMEMBERS NOES,COUNCILMEMB ABSENT, COUNCILMEMBERS MAYOR ATTEST: CITY CLERK 0 F: \users \cat \shared \da\ Ordinance \Telecom \OgI702Final.doc 17 Attachment B Council Policy L -23 . THE SITING OF WIRELESS TELECOMMUNICATIONS EQUIPMENT ON CITY -OWNED LAND PURPOSE: To describe the manner in which specific city -owned or city Trust properties may be used as locations for wireless telecommunications devices that transmit voice or data. POLICY: It is the policy of the City to effectively balance the needs of its residents, visitors, and businesses to use and have access to state -of- the -art wireless telecommunication systems (such as wireless Internet, voice, and other data communications) with the needs of residents to safely and effectively enjoy their property. This Policy shall be used when considering applications to install wireless communications devices on City -owned or City -held property by any wireless telecommunications provider or siting company. A -- PERMIT REQUIRED All telecom facilities proposed to be located on City -owned or City -held trust property must first apply for and receive a permit under the provisions of Chapter 15.70. 2. All proposals affecting City -owned or City -held trust property shall be processed via this Policy through the Planning Department. Successful projects shall receive a "Telecom Permit." B -- AGREEMENT REQUIRED All telecom facilities located on City -owned property or City -held Trust property must have an agreement approved as to form by the City Attorney and approved as to substance (including, but not limited to, compensation, term, insurance requirements, bonding requirements, and hold harmless provisions) by the City Manager. C -- CITY SITES ELIGIBLE OR INELIGIBLE FOR FACILITY PLACEMENT 1. Sites Eligible for Use. The Cite Council has determined that the following City locations are acceptable for placement of wireless devices: a. Fire Stations b. Newport Beach City Hall Policy L -23 Page 2 c. Parks d. Police Headquarters e. Lifeguard Headquarters f. Piers g. The OASIS Senior Center h. Medians and parkways along public streets i. The Central Library and Branch Libraries j. The Utilities and General Services Corporate Yards k. Big Canyon Reservoir and surrounding grounds 1. Qualifying City -held easements m. Streetlights (following certification and acceptance by the Utilities Department of an effective test of the facility's impacts to the light standard under various environmental conditions). n. Traffic Signal poles (following certification and acceptance by the Public Works Department of an effective test of the facility's impacts to the traffic signal pole under various environmental conditions). 2. Sites Ineligible for Use. The City Council has determined that the following City locations are unacceptable for placement of wireless devices in accordance with the entirety of this Policy: a. Open space areas owned by the City where placement of facilities in these areas would aesthetically impair the pristine nature of the area. D -- COMPENSATION AND TERM The City Manager shall follow these rules when developing any Agreement for the placement of any wireless device on City property: 1. Compensation shall be equal to fair market value, taking into account rent charged by owners of public or private properties within Newport Beach or neighboring cities for a similar type of facility and location. Such compensation shall be determined via a Rent Survey conducted by the City Manager's Office. 2. The Agreement shall provide for a specific term to be determined by the City Manager. Where the term exceeds five (5) years, at the fifth year and every five years thereafter, rent shall be adjusted to fair market value using the Rent Survev ( "Market -Based Adjustment "). 3. The Agreement shall provide for the following rent adjustments: A. Rent shall be adjusted annually by the Consumer Price Index for All Urban Consumers, Anaheim - Riverside -Los Angeles or a similar index; and Policy L -23 Page 3 B. At the end of five (5) years of the Agreement term and every five years thereafter, the Market -Based Adjustment described above. 4. The Agreement shall require the applicant to post a bond, letter of credit, or other financial security/ securities ( "Financial Security ") in an amount that equals or exceeds the anticipated cost of removing the facility or facilities and repairing any damage to City property at the completion of the Agreement term or in the event that the applicant ceases use of or abandons the facility or otherwise does not remove the facility. The Financial Security shall name the City as eligible for receipt of the Financial Security's proceeds in the event that the applicant ceases use of or abandons the facility. E -- EFFECTIVE DATE AND COUNCIL NON - CONSENT The City Manager shall notify (via memorandum or similar correspondence) the City Council as to a pending Agreement for telecommunications facilities on public land. The Agreement shall take effect forty -five (45) days after the City Manager's notification of the City Council unless called up by a City Council member within 30 days of the City Manager's notification of City Council of a pending Agreement per this section. 2. A City Council member reserves the right to, at any time and for any purpose, not consent to the City Manager's issuance of an Agreement under this Policy. The City Council may do so by notifying the City Manager of the Council member's intent to bring the Agreement before City Council. The Council member must express this intent in writing or at a formal Council meeting not more than 30 days after the City Manager has notified the City Council of a pending Agreement. Should the City Council not consent to the issuance of an Agreement, the Agreement shall not become effective. F -- PROPOSALS FOR EQUIPMENT IN THE CITY RIGHT -OF -WAY This policy shall not apply to Encroachment Permits (Telecom) for the use of right -of- way. Title 13 of the Newport Beach Municipal Code shall govern consideration of Encroachment Permits (Telecom). G -- CITY COMMUNICATIONS SYSTEMS EXEMPT This policy shall not apply to any communications system used by City personnel for communications deemed necessary for city operations. Adopted -- September 24, 2002 0