HomeMy WebLinkAbout2020-03 - Wireless FacilitiesORDINANCE NO. 2020-03
AN ORDINANCE OF THE CITY COUNCIL OF COSTA MESA,
CALIFORNIA AMENDING TITLE 19 AND TITLE 13 OF THE
COSTA MESA MUNICIPAL CODE (FRANCHISES AND
PLANNING, ZONING, AND DEVELOPMENT), RELATING TO
WIRELESS TELECOMMUNICATIONS FACILITIES AND
RELATED INFRASTRUCTURE WITHIN THE RIGHT-OF-WAY
THE CITY COUNCIL OF THE CITY OF COSTA MESA HEREBY ORDAINS AS
FOLLOWS:
SECTION 1: Findings. The City Council finds as follows:
A. Section 332(c)(7)(B) of Title 47 of the United States Code provides in part: "the
regulation of the placement, construction, and modification of personal wireless
service facilities by any State or local government ... shall not prohibit or have the
effect of prohibiting the provision of personal wireless services."
B. Section 332(c)(7)(B)(iv) of Title 47 of the United States Code states that "No State
or local government or instrumentality thereof may regulate the placement,
construction, and modification of personal wireless service facilities on the basis
of the environmental effects of radio frequency emissions to the extent that such
facilities comply with the Commission's regulations concerning such emissions";
C. On September 26, 2018, the Federal Communications Commission ("FCC")
issued a Declaratory Ruling and Third Report and Order ("Declaratory Ruling")
adding regulations 47 C.F.R. 1.6001-1.6004 which adopted new rules substantially
revising the city's authority to regulate the deployment of "small wireless facilities";
D. The Declaratory Ruling established new 60 and 90 day presumptively reasonable
periods in which a city must act upon proposed small wireless facilities;
E. On April 2, 2019, the City Council adopted Resolution 19-14 to approve design
guidelines to regulate small wireless facilities in a manner consistent with
applicable law;
F. Under the police power of Article XI section 7 of the California Constitution, as
confirmed in T-Mobile West LLC v. City and County of San Francisco (2019), cities
retain the full authority to regulate telecommunication facilities in the right of way
to the extent such regulations are not inconsistent with general laws;
G. The City also retains all local zoning powers not specifically preempted by federal
law (T-Mobile S., LLC v. City of Roswell (2015) 574 U.S. 293, 303);
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H. The Declaratory Ruling is currently under current legal challenge and
Congressional bills are under consideration that may afford the City additional
authority over the approval and siting of small wireless facilities. The City therefore
intends to retain the ability to regulate existing and future wireless facilities and
minimize the permanent effect of potentially temporary legal restraints;
I. This ordinance is not intended to limit or prejudice any individual's ability to seek a
reasonable accommodation under the Americans with Disabilities Act, the Fair
Housing Act Amendments of 1988, or any other similar law; and
J. It is in the public interest for the City to update its regulations in a manner consistent
with applicable law.
SECTION 2. Municipal Code Amendment.
A. Section 19-15 of the Municipal Code is amended to provide as follows:
19-15. Wireless telecommunications services provided by telephone
corporations in the public rights -of -way.
(a) Findings. The city council finds and determines as follows:
(1) The Federal Telecommunications Act of 1996 ("FTCA") preempts and declares
invalid all state rules that restrict entry or limit competition in both local and long-
distance telephone service "have the effect of prohibiting the ability of any entity
to provide any interstate or intrastate telecommunications service."
(2) The California legislature has delegated to the Public Utilities Commission
("CPUC") its primary authority to regulate local telephone competition, and to
issue certificates of public convenience and necessity to new entrants that are
qualified to provide competitive local telephone exchange services and related
telecommunications service, whether using their own facilities or the facilities
or services provided by other authorized telephone corporations. Section 7901
of the California Public Utilities Code (Section 7901) applies equally to wireless
carriers and wireless equipment. Wireless carriers have been determined by
the courts to be included in the CPUC definition of "telephone corporation" in
Section 7901, and the definition of "telephone line" in Section 7901 has been
determined by the courts to be broad enough to include wireless equipment.
(3) Section 2902 of the California Public Utilities Code authorizes municipal
corporations to retain their powers of control to supervise and regulate the
relationships between a public utility and the general public in matters affecting
the health, convenience, and safety of the general public, including matters
such as the use and repair of public streets by any public utility and the location
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of the poles, wires, mains, or conduits of any public utility on, under, or above
any public streets.
(4) Section 7901 authorizes telephone and wireless corporations to construct
telephone or wireless telecommunication lines along and upon any public road
or highway, along or across any of the waters or lands within this state, and to
erect poles, posts, piers, or abatements for supporting the insulators, wires,
and other necessary fixtures of their lines, in such manner and at such points
as not to incommode the public use of the road or highway or interrupt the
navigation of the waters.
(5) Section 7901.1 of the California Public Utilities__Code confirms the right of
municipalities to exercise reasonable control as to the time, place, and manner
in which roads, highways, and waterways are accessed, which control must be
applied to all entities in an equivalent manner, and may involve the imposition
of fees. Specifically, it has been determined by the courts that a municipality
has authority to regulate the placement and appearance of telecommunications
equipment installed on its public rights -of -way, and that a municipality need not
grant wireless providers blanket permission to install their equipment
throughout a municipality, but may require wireless providers to go through a
site -specific permitting process provided it is not so burdensome that it runs
afoul of section 7901.
(6) Section 50030 of the California Government.Code provides that any permit fee
imposed by a city for the placement, installation, repair, or upgrading of
telecommunications facilities, such as lines, poles, or antennas, by a telephone
corporation that has obtained all required authorizations from the CPUC and
the FCC to provide telecommunications services, must not exceed the
reasonable costs of providing the service for which the fee is charged, and must
not be levied for general revenue purposes.
(7) Section 1455 of Title 47 of the United States Code mandates approval by local
agencies of certain eligible facilities requests for modification of an existing
wireless tower or base station that does not substantially change the physical
dimensions of such wireless tower or base station.
(8) It is in the public interest for the city to establish reasonable regulations to
promote and protect the city's aesthetic values by regulating the time, place,
and manner of installation of personal wireless facilities.
(b) Permits Required. In recognition of and in compliance with the statutory
authorizations and requirements set forth above in paragraph (a), the following
regulatory provisions are applicable to users of telecommunications equipment in
the public right-of-way ("PROW"), including but not limited to wireless
telecommunications providers, which desire to provide telecommunications
service by means of facilities that are proposed to be constructed within the city's
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public rights -of -way provided, however, this section is intended solely to authorize
personal wireless facilities and is not intended to and shall not be applied to
authorize adjacent technologies.
(1) Which Permits Required. Users of telecommunications equipment in the
PROW must apply for and obtain, the following, as deemed applicable by the
Director and Public Services Director:
a. A Wireless Telecommunications Use Permit (WTUP) is a planning permit
required for the installation of any wireless telecommunication facility,
support structure or wireless tower in the PROW. The standards
applicable to such permit applications are set forth in subsection (c) of this
section;
b. An encroachment permit and/or a building permit may be required as
applicable as provided in the Code.
c. Exemptions. Notwithstanding anything in this Code to the contrary, a
Wireless Telecommunications Use Permit shall not be required for:
1. Wireless facilities or other infrastructure deployments owned and
operated by the City for its use;
2. All over -the -air reception devices (OTARD), including all antennas
and antenna supports covered by 47 C.F.R. § 1.4000(a)(1), as that
section may be amended or superseded.
3. "Eligible facilities requests" under 47 U.S.C. § 1455(a) 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", as those words and phrases as defined under federal
statute or regulation, as they may be amended or superseded, except
that such requests shall be subject to requirements of subsection (d)
(regarding Eligible Facilities Exemption Requests) below; or
4. Wireless facilities or other infrastructure deployments covered by a
valid franchise, pole license or other encroachment agreement
between the applicant and the City provided that any such contracts
establish requirements that are no less restrictive than the standards
that would otherwise apply pursuant to this section 19-15.
5. Any activity where requiring the applicable permit(s) would violate
applicable law in a manner that cannot be resolved by means of
section 19-15(c)(3)(b).
d. Other Permits and Approvals. In addition to a Wireless
Telecommunications Use Permit, the applicant must obtain all other
permits and regulatory approvals as may be required by any other federal,
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state or local government agencies, which includes without limitation any
ministerial permits and/or other approvals issued by other the City
departments or divisions. All applications for ministerial permits submitted
in connection with a proposed small wireless facility or other infrastructure
deployment must contain a valid Wireless Telecommunications Use Permit
issued by the City for the proposed facility. Any application for any
ministerial permit(s) submitted without such Wireless Telecommunications
Use Permit may be denied without prejudice. Any Wireless
Telecommunications Use Permit granted under this Code shall remain
subject to all lawful conditions and/or legal requirements associated with
such other permits or approvals. Furthermore, and to avoid potential
confusion, an exemption from the Wireless Telecommunications Use
Permit requirement under subsection (b)(1)c of this Section 19-15, above,
does not exempt the same wireless facilities or other infrastructure
deployments from any other permits or approvals, which includes without
limitation any ministerial permits from the City (e.g., building permits).
(2) Application Requirements. In addition to the information required by this
Code in connection with an application for any other required permit, a
telephone corporation requesting a Wireless Telecommunications Use Permit
must submit to the city the following supplemental information:
a. Application Form. A complete, duly executed Wireless
Telecommunications Use Permit application on the then -current form
prepared by the Director.
b. Application Fee. The applicable Wireless Telecommunications Use
Permit application fee established by City Council resolution. Batched
applications must include the applicable Wireless Telecommunications
Use Permit application fee for each wireless facility in the batch. If no
Wireless Telecommunications Use Permit application fee has been
established, then the applicant must submit a signed written statement that
acknowledges that the applicant will be required to reimburse the City for
its reasonable costs incurred in connection with the application within 10
days after the City issues a written demand for reimbursement.
c. Construction Drawings. True, complete, and correct construction
drawings, prepared, originally signed and originally sealed by a California -
licensed or California -registered engineer and/or architect, that certifies
and accurately depicts all the existing and proposed improvements,
equipment and conditions related to the proposed project, which includes
without limitation any and all poles, posts, pedestals, traffic signals, towers,
streets, sidewalks, pedestrian ramps, driveways, curbs, gutters, drains,
handholes, manholes, fire hydrants, equipment cabinets, antennas,
utilities, cables, trees and other landscape features. The construction
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drawings must: (i) contain cut sheets that contain the technical
specifications for all existing and proposed antennas and accessory
equipment, which includes without limitation the manufacturer, model
number and physical dimensions; (ii) depict the applicant's preliminary
plan for electric and data backhaul utilities, which shall include the
anticipated locations and depth for all trenching, conduits, cables, wires,
handholes, junctions, transformers, meters, disconnect switches, and
points of connection in a manner that meets the requirements of the
Municipal Code and the Director of Public Services or designee, including
compliance with Chapter II of Title 15 of the Municipal Code (Section 15-
25 et seq.), "(Work on or Affecting Streets"); and (iii) demonstrate that
proposed project will be in full compliance with all applicable health and
safety laws, regulations or other rules, which includes without limitation all
building codes, electric codes, local street standards and specifications,
and public utility regulations and orders.
d. Site Survey. A true and accurate survey prepared, originally signed and
originally sealed by a California -licensed or California -registered engineer
that certifies and accurately depicts all existing boundaries,
encroachments and other structures within the vicinity of the proposed
project site and any new improvements, which includes without limitation
all: (i) traffic lanes; (ii) all private properties and property lines; (iii) above
and below -grade utilities and related structures and encroachments
including water lines and water meters; (iv) fire hydrants, roadside call
boxes and other public safety infrastructure; (v) streetlights, decorative
poles, traffic signals (including traffic signal equipment) and permanent
signage; (vi) sidewalks, driveways, parkways, curbs, gutters and storm
drains; (vii) benches, trash cans, mailboxes, kiosks and other street
furniture; and (viii) existing trees, planters and other landscaping features.
e. Photo Simulations. Site photographs and photo simulations that show the
existing location and proposed wireless facility in context from at least
three vantage points within the public streets or other publicly accessible
spaces, together with a vicinity map that shows the proposed site location
and the photo location for each vantage point. At least one photo
simulation must depict the wireless facility from a vantage point
approximately 50 feet from the proposed support structure or location. The
photo simulations and vicinity map shall be incorporated into the
construction plans submitted with the application.
f. Project Narrative and Justification. A written statement that explains in
plain factual detail whether and why the proposed facility qualifies as a
"small wireless facility" as defined by the FCC in 47 C.F.R. § 1.6002(n. A
complete written narrative analysis will state the applicable standard and
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all the facts that allow the City to conclude the standard has been met —
bare conclusions not factually supported do not constitute a complete
written analysis. As part of the written statement the applicant must also
include (i) whether and why the proposed support is a "structure" as
defined by the FCC in 47 C.F.R. § 1.6002(m); and (ii) whether and why the
proposed wireless facility meets each applicable provision of Section(c)(3)
of this Section 19-15.
g. RF Compliance Report. An RF exposure compliance report that certifies
that the proposed wireless facility, both individually and cumulatively with
all other emitters that contribute more than 5% to the cumulative emissions
in the vicinity (if any), will comply with applicable federal RF exposure
standards and exposure limits. The RF report must be prepared and
certified by a California -licensed or California -registered electrical engineer
with demonstrated expertise in RF calculations and reporting. The RF
report must include the actual frequency and power levels (in watts,
effective radiated power) from all existing and proposed antennas at the
site and exhibits that show the location and orientation of all transmitting
antennas and the boundaries of areas with RF exposures in excess of the
uncontrolled/general population limit (as that term is defined by the FCC)
and also the boundaries of areas with RF exposures in excess of the
controlled/occupational limit (as that term is defined by the FCC). Each
such boundary shall be clearly marked and identified for every transmitting
antenna at the project site. If the applicant submits a batched application,
a separate site -specific RF report shall be prepared for each facility
associated with the batch. Every RF report must be originally signed and
originally sealed by the person responsible for the contents of the report
certifying the accuracy of the data contained therein. The RF report must
include the engineer's name, license number, and license expiration date.
h. Public Notice Mailing Labels. When noticing is required per subsection
(c)(4)(b) of this section, applicants shall provide:
i. Radius Map. This map shall show the subject property and all
properties within the required notice radius. Assessor parcel
numbers must be shown on all affected properties.
ii. Mailing Labels. Two sets of typewritten mailing labels and one
photocopy. A mailing label is required for every property that is
within the required notice radius (either wholly or partially). The
mailing label must contain the assessor parcel number above the
name of the owner and applicable address. Property owner names
and addresses shall be obtained from the latest available County of
Orange assessment rolls. Separate mailing labels shall also be
provided for each tenant/occupant within the required notice radius.
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iii. Certification Letter. The person who prepared the radius map and
mailing labels shall write and sign a letter certifying that the
information is correct.
i. CPCN. A copy of the certificate of public convenience and necessity
issued by the CPUC to the applicant, and a copy of the CPUC decision
that authorizes the applicant to provide the telecommunications service for
which the facilities are proposed to be constructed in the city's public rights -
of -way.
j. Pole License Agreement. For any wireless facility proposed to be
installed on any structure owned or controlled by the City and located
within the public rights -of -way, an executed Pole License Agreement on a
form prepared by the City that states the terms and conditions for such
non-exclusive use by the applicant. No changes shall be permitted to the
City's Pole License Agreement except as may be indicated on the form
itself or as deemed by the City Manager, in consultation with the City
Attorney, to be immaterial and/or non -substantive. Any unpermitted
changes to the City's Pole License Agreement shall be deemed a basis to
deem the application incomplete. Refusal to accept the terms and
conditions in the City's Pole License Agreement shall be an independently
sufficient basis to deny the application without prejudice. The terms of the
pole license agreement shall comply with this section 19-15.
k. Property Owner's Authorization. If the applicant is not the support
structure owner, a written authorization (or other applicable form) executed
by and from the support structure owner(s) that authorizes the applicant to
submit and accept a Wireless Telecommunications Use Permit in
connection with the subject support structure.
I. Acoustic Analysis. An acoustic analysis prepared and certified by a
licensed engineer for the proposed wireless facility and all associated
equipment including all environmental control units, sump pumps,
temporary backup power generators and permanent backup power
generators demonstrating compliance with the City's noise regulations at
Costa Mesa Municipal Code, Chapter XIII ("Noise Control") of Title 13 (13-
277 et seq.), as such regulations may be amended from time to time. The
acoustic analysis must also include an analysis of the manufacturers'
specifications for all noise -emitting equipment and a depiction of the
proposed equipment relative to all adjacent property lines. In lieu of an
acoustic analysis, the applicant may submit evidence from the equipment
manufacturer(s) that the ambient noise emitted from all the proposed
equipment will not, both individually and cumulatively, exceed the
applicable noise limits.
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m. Structural Analysis. A report prepared and certified by a licensed
engineer (or other qualified personnel acceptable to the City) that
evaluates whether the underlying pole or support structure has the
structural integrity to support all the proposed equipment and attachments.
At a minimum, the analysis must be consistent with all applicable
requirements in CPUC General Order 95 (including, but not limited to, load
and pole overturning calculations), CPUC General Order 128 (for, but not
limited to, underground facilities), and any safety and construction
standards required by the utility. For joint utility poles, the applicant may
submit a letter signed by the pole owner that certifies (a) a structural
analysis has been performed by a qualified engineer; (b) the pole has
adequate structural capacity to support both the existing and proposed
attachments; and (c) the pole owner assumes responsibility for any errors
and omissions in the analysis and any liability that may arise in connection
therewith.
n. Lighting (Photometric) Analysis. For any application which includes the
removal of any existing street light or the adjustment to the height of a light
fixture for a streetlight, a report prepared and certified by a licensed
engineer (or other qualified personnel acceptable to the City) that
demonstrates that after project completion, light levels will remain
substantially unchanged for the area covered by the existing street light or
light fixture.
o. Site Selection Plan. Identify on a map all potential support structures
within a radius of 750 feet from the proposed project site and provide clear
and convincing evidence that the alternative support structures are no
more -preferred per Section(c)(3) of this Section 19-15 than the proposed
structure.
(3) Additional Administrative Requirements and Regulations. The City Council
authorizes the Director to develop, publish and from time to time update or
amend permit application requirements, forms, checklists, guidelines,
informational handouts and other related materials that the Director finds
necessary, appropriate or useful for processing any application governed under
this Code, and to republish the same thereafter. The City Council further
authorizes the Director to establish other reasonable rules and regulations for
duly filed applications, which may include without limitation regular hours for
appointments and/or submittals without appointments, as the Director deems
necessary or appropriate to organize, document and manage the application
intake process, provided that such regulations or standards do not conflict with
any provision of the Code. All such requirements, materials, rules and
regulations must be in written form, publicly stated, and made available to the
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public pursuant to the FCC regulations to provide all interested parties with prior
notice.
(c) Standards for Permits. The purpose of this section is to establish the parameters
for review of a Wireless Telecommunications Use Permit to identify review criteria,
processing procedures, regulations, and conditions for these requests.
(1) Permits Required. Any wireless telecommunications facility that is to be
installed within the public right-of-way shall require an approval of a Wireless
Telecommunications Use Permit and public right-of-way encroachment permit.
(2) Reviewing Authority. The Director is authorized to act on and grant approvals
of a Wireless Telecommunications Use Permit for any small wireless facility;
the Zoning Administrator is the authority for all other Wireless
Telecommunications Use Permit applications.
(3) Review Criteria:
a. Requirements for Ministerial Approval of Small Wireless Facilities.
The Director shall ministerially approve, subject to the conditions stated in
Section (c)(6) of this Section 19-15, a complete and duly filed application
for a Wireless Telecommunications Use Permit if the Director determines
that:
1. the proposed project would not be located on a structure identified in
in the section entitled "Prohibited Support Structures" of the Design
Guidelines for Small Wireless Telecommunications Facilities ("Design
Guidelines"); and
2. either: (i) the proposed project would meet all location and support
structure hierarchy requirements of the Design Guidelines as
compared to all other potential alternatives within 750 feet of the
proposed project or (ii) the applicant has demonstrated with clear and
convincing evidence that any more -preferred location(s) and support
structure(s) within 750 feet would be technically infeasible; and
3. the proposed project will meet the requirements of the section of the
Design Guidelines entitled "Additional Location Requirements"; and
4. the proposed project is a small wireless facility; and
5. the applicant has demonstrated that the proposed project will be in
planned compliance with all applicable FCC regulations and
guidelines for human exposure to RF emissions; and
6. the proposed project complies with all other applicable standards in
this Code and in the Design Guidelines.
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b. Findings for Discretionary Approval. If the proposal is for a
telecommunications facility that does not meet all of the requirements of
subsection (c)(3)a above, the Director (or the Zoning Administrator for
other than small wireless facilities) shall issue the permit if the following
findings are made:
1. The proposed location for the facility is reasonable when considering
both (i) the federal mandate to not regulate personal wireless service
facilities in a manner that would "prohibit or have the effect of
prohibiting the provision of personal wireless services"; and (ii) the
city's legitimate related policy objectives relating to the location of
wireless facilities;
2. The proposed facility is substantially compatible with existing or
planned developments and uses in the same general area and would
not be substantially detrimental to existing or planned developments
or uses within the general area.
3. The proposed facility will not be materially detrimental to the health,
safety and general welfare of the public (excluding any environmental
effects of radio frequency emissions to the extent that such facilities
comply with the Federal Communication Commission's regulations
concerning such emissions).
4. Antennas and any poles or other structures erected to support
antennas are visually compatible with their surroundings.
c. Conditional Approvals; Denials Without Prejudice. Subject to any
applicable federal or California laws, except to the extent contrary to a
statement in this code, nothing in this code is intended to limit the ability to
conditionally approve or deny without prejudice any Wireless
Telecommunications Use Permit application as may be necessary or
appropriate to ensure compliance with this code.
(4) WTUP Application Process. The Wireless Telecommunications Use Permit
shall be subject to the following application review process:
a. Submittal. FCC regulations provide safe harbor time periods and
completeness requirements that apply to all approvals relating to wireless
facility deployments. Applicants are encouraged to provide all related
applications in one submittal.
1. Voluntary Pre -submittal Conference. The City strongly encourages,
but does not require, applicants to schedule and attend a pre -
submittal conference with the Director and other City staff. This
voluntary, pre -submittal conference does not cause the FCC Shot
Clock to begin and is intended to streamline the review process
through collaborative, informal discussion that includes, without
limitation, the appropriate project classification and review process;
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any latent issues in connection with the proposed project and/or
project site, including compliance with generally applicable rules for
public health and safety; potential concealment issues or concerns (if
applicable); coordination with other City departments implicated by the
proposed project; and application completeness issues. Pre -submittal
conferences are especially encouraged when an applicant seeks to
submit one or more batched applications so that the Director may
advise the applicant about any staffing or scheduling issues that may
hinder the City's ability to meet the presumptively reasonable
timeframes under the FCC Shot Clock. To mitigate unnecessary
delays due to application incompleteness, applicants are encouraged
(but not required) to bring any draft applications, plans, maps or other
materials so that City staff may provide informal feedback and
guidance about whether such applications or other materials may be
incomplete or unacceptable in their then -current form. The Director
will use reasonable efforts to provide the applicant with an
appointment within approximately five working days after receiving a
written request and any applicable fee or deposit to reimburse the City
for its reasonable costs to provide City time and services rendered in
the pre -submittal conference.
2. Submittal Appointments. All applications, including all resubmittals,
must be tendered in person to the City at a pre -scheduled appointment
with the Director. Prospective applicants may generally submit one
application per appointment, or up to five individual applications per
appointment as a batch. Individual applicants may request an
appointment as often as once every 15 working days. Potential
applicants may schedule successive appointments for multiple
applications whenever feasible and not prejudicial to other applicants
for any other development project as determined by the Director. The
Director shall use reasonable efforts to offer an appointment within
five working days after the Director receives a written request from a
potential applicant. Any purported application received by the City
without an appointment, whether delivered in -person, by mail, by
email or through any other means, will not be considered duly filed,
whether the City retains, returns or destroys the materials received.
3. Incomplete Applications Deemed Automatically Withdrawn. Any
application governed under this Code shall be automatically deemed
denied if the applicant fails to submit a substantive response to the
Director within 60 calendar days after the Director deems the
application incomplete by written notice. As used in this subsection 3,
a "substantive response" must include, at a minimum, the complete
materials identified as incomplete in the written incomplete notice. An
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application deemed automatically denied shall be denied without
prejudice; a follow-on application for the same location may be
resubmitted at no additional cost within 6 months of the denied
application.
b. Notices. Notices of the upcoming Director, Zoning Administrator or City
Manager discretionary Wireless Telecommunications Use Permit
decisions shall be provided to the applicant and provided as described in
subsection (d)(1) and (2) of section 13-29 of the Municipal Code and
notices of the upcoming ministerial Wireless Telecommunications Use
Permit decisions shall be provided to the applicant and provided as
described in subsection (d)(1) and (2) of section 13-29 of the Municipal
Code except that notice distance under (d)(1) shall be 100 feet. As to all
Wireless Telecommunications Use Permit applications, individuals
desiring to receive email notifications regarding pending and completed
applications may do so through a designated portal on the City's webpage.
Information regarding the location and status of proposed and active
wireless facilities, contact information, for the applicant and applicable City
code enforcement personnel shall also be posted on the City's webpage.
c. Written Decision. If the Director, Zoning Administrator or City Manager
takes action on a discretionary or ministerial Wireless Telecommunications
Use Permit application (with or without prejudice) for a wireless facility, the
written notice must also contain the reasons for the action. Any such notice
shall also be posted to the City's website.
d. Appeals of Director Decisions on Small Wireless Facilities. Any
affected person or entity may appeal a decision of the Director made
pursuant to this section 19-15 to the City Manager pursuant to Chapter IX
(Appeal and Review Procedure) of Title 2 of the Municipal Code (2-300 et
seq.), except the following requirements supersede any inconsistent
statements within Chapter IX:
1. Notwithstanding Municipal Code sections 2-302 and 2-309, although
decisions of the Director may be appealed to the City Manager, such
decisions shall be final. No such decision of the City Manager may be
referred to, appealed to, or called for review to, either the Planning
Commission or the City Council.
2. Appeals from an approval shall not be permitted when based solely
on the environmental effects of radio frequency emissions to the
extent that such facilities comply with the Federal Communication
Commission's regulations concerning such emissions.
3. Notwithstanding Municipal Code section 2-305, an application for
appeal of a Director decision hereunder must be filed within three (3)
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calendar days after the date the written decision being appealed was
posted to the City's website. If the final day for filing an application for
appeal falls on a holiday or weekend day when city hall is closed, the
application shall be filed no later than the next business day. The
application for appeal must contain a short and plain statement about
the basis for the appeal, which may be supplemented after the appeal
period has expired but before the appeal is considered.
4. The City Manager shall consider appeals de novo.
5. Within five (5) calendar days of issuance of the decision, the City
Manager is directed to issue the applicant written notice of the
decision and to post the decision on the City's website.
e. Appeals of Zoning Administrator Decisions. Any affected person or
entity may appeal a decision of the Zoning Administrator made pursuant
to this section 19-15 to the Planning Commission pursuant to Chapter IX
(Appeal and Review Procedure) of Title 2 of the Municipal Code (2-300 et
seq.), except that the following requirements supersede any inconsistent
statements within Chapter IX:
1. Notwithstanding Municipal Code sections 2-302 and 2-309, a decision
of the Zoning Administrator may be made to the Planning
Commission, which decision may not be subsequently appealed to, or
called for review by, the City Council.
2. Appeals from an approval shall not be permitted when based solely
on the environmental effects of radio frequency emissions to the
extent that such facilities comply with the Federal Communication
Commission's regulations concerning such emissions.
3. Notwithstanding Municipal Code section 2-305, an application for
appeal must be filed within three (3) calendar days after the date the
written decision being appealed was posted to the City's website. The
application for appeal must contain a short and plain statement about
the basis for the appeal, which may be supplemented after the appeal
period has expired but before the appeal hearing.
4. The Planning Commission shall hear appeals de novo.
5. Within five calendar days of issuance of the decision, the Director is
directed to issue the applicant written notice of the decision and post
the decision on the city's website.
(5) The Public Services Director or designee is authorized to:
a. Process applications for encroachment permits concurrently with
applications for Wireless Telecommunications Use Permits if the applicant
Ordinance No. 2020-03 Page 14 of 32
signs an agreement on a form acceptable to the City Attorney in which the
applicant agrees to hold the city harmless from any responsibilities,
including but not limited to, any costs associated with concurrent
processing.
b. Act on and grant approvals of encroachment permits related to wireless
telecommunications facilities in the public right-of-way that have obtained
an approval of a Wireless Telecommunications Use Permit.
c. Forward any request for a permit related to a wireless telecommunications
facility in the public right-of-way to the Director for review. The application
process for these referrals to the Director shall be subject to the same
procedures, purpose, conditions, review criteria, and findings as described
for a Wireless Telecommunications Use Permit.
(6) Condition(s) of approval for the application shall assure compliance with the
applicable provisions of state and federal laws assure compatibility with
surrounding properties and uses and protect the public health, safety and
general welfare. Except as may be authorized in Section 19-16(c)(6)(b), below,
all Wireless Telecommunications Use Permit issued under this code shall be
automatically subject to the conditions in the following subsection (a). The
Director may amend these conditions if necessary to comply with federal or
state law.
a. Standard Conditions:
1. Compliance with Plans. The use shall be limited to the project
approved by the City in writing on (approval date). Any wireless
device modification including collocating on/with the facility approved
under this application, shall be subject to Director review and may
require an amendment to the permit, subject to either staff or Planning
Commission approval, depending on the nature of the proposed
change.
2. Permit Term. This permit will automatically expire 10 years and one
day from its issuance unless (1) the City makes a finding of public
safety reasons or substantial land use reasons to justify a specified
shorter duration or (2) California Government Code § 65964(b) is
revised to establish a presumptive period shorter than 10 years in
which case the period shall be automatically reduced to that shorter
period. Any other permits or approvals issued in connection with any
collocation, modification or other change to this wireless facility, which
includes without limitation any permits or other approvals deemed -
granted or deemed -approved under federal or state law (including any
"eligible facilities request"), will not extend this term limit unless
Ordinance No. 2020-03 Page 15 of 32
expressly provided otherwise in such permit or approval or required
under federal or state law.
3. Permit Renewal. Not more than one year before this Wireless
Telecommunications Use Permit expires, the permittee (hereafter, a
permittee shall mean permittee or its successors) may apply for permit
renewal. The permittee must demonstrate that the subject wireless
facility or other infrastructure deployment complies with all the
conditions of approval associated with this Wireless
Telecommunications Use Permit and all applicable provisions in the
Costa Mesa Municipal Code that exist at the time the decision to
renew or not renew is rendered. The Director may modify or amend
the conditions on a case -by -case basis as may be necessary or
appropriate to ensure compliance with the Costa Mesa Municipal
Code, this Code, or other applicable law. Upon renewal, this Wireless
Telecommunications Use Permit will automatically expire 10 years
and one day from its issuance.
4. Post -Installation Certification. Within 60 calendar days after the
permittee commences full, unattended operations of a wireless facility
or other infrastructure deployment approved or deemed -approved, the
permittee shall provide the Director with documentation reasonably
acceptable to the Director that the wireless facility or other
infrastructure deployment has been installed and/or constructed in
strict compliance with the approved construction drawings, RF
compliance report required in subsection (b)(2)(g) of this section
which includes the type of equipment used to test and the calibration
date and photo simulations. Such documentation shall include without
limitation as -built drawings, GIS data and site photographs. Such
documentation shall also include a report from a licensed electrical
engineer confirming that on -site RF testing was completed after the
permittee commenced full, unattended operations and which testing
confirmed compliance with all applicable RF requirements and the RF
compliance report.
5. Build -Out Period. This Wireless Telecommunications Use Permit will
automatically expire 18 months after the approval date unless the
permittee commences construction within that period or the Director
grants, in writing, one extension of time for a period of not more than
6 months. The applicant shall request an extension pursuant to this
subdivision in writing and demonstrate justifiable cause for the
extension. If this build -out period expires, the permit shall be
automatically void but the permittee may immediately or thereafter
Ordinance No. 2020-03 Page 16 of 32
submit a new and complete application, including all application fees,
for the same or substantially similar project.
6. Site Maintenance. The permittee shall keep the site, which includes
without limitation any and all improvements, equipment, structures,
access routes, fences and landscape features, in a neat, clean and
safe condition in accordance with the approved construction drawings
and all conditions in the Wireless Telecommunications Use Permit.
The permittee shall keep the site area free from all litter and debris at
all times. The permittee, at no cost to the City, shall remove and
remediate any graffiti or other vandalism or remediate conditions that
violate the permit at the site within 48 hours after the permittee
receives notice or otherwise becomes aware that such graffiti or other
vandalism occurred. Applicant shall obtain an Encroachment Permit
from the Public Services Department for any work on public rights -of -
way, as determined by Public Services Director.
7. Compliance with Laws. The permittee shall maintain compliance at
all times with all federal, state and local statutes, regulations, orders
or other rules that carry the force of law ("laws") applicable to the
permittee, the subject property, the wireless facility or other
infrastructure deployment or any use or activities in connection with
the use authorized in this Wireless Telecommunications Use Permit,
which includes without limitation any laws applicable to human
exposure to RF emissions. If the City determines that the wireless
facility is operating in violation of applicable RF emission standards,
the facility shall immediately shut down and not re -start operations
until the city confirms that the facility has been returned to full
compliance with federal RF emission standards. The permittee
expressly acknowledges and agrees that this obligation is intended to
be broadly construed and that no other specific requirements in these
conditions are intended to reduce, relieve or otherwise lessen the
permittee's obligations to maintain compliance with all laws. No failure
or omission by the City to timely notice, prompt or enforce compliance
with any applicable provision in the Costa Mesa Municipal Code, any
permit condition or any applicable law or regulation, shall be deemed
to relieve, waive or lessen the permittee's obligation to comply in all
respects with all applicable provisions in the Costa Mesa Municipal
Code, any permit, any permit condition or any applicable law or
regulation.
8. Adverse Physical Impacts on Other Properties. The permittee shall
use all reasonable efforts to avoid any and all unreasonable, undue or
unnecessary adverse physical impacts on nearby properties that may
Ordinance No. 2020-03 Page 17 of 32
arise from the permittee's or its authorized personnel's construction,
installation, operation, modification, maintenance, repair, removal
and/or other activities on or about the site. The permittee shall not
perform or cause others to perform any construction, installation,
operation, modification, maintenance, repair, removal or other work
that involves heavy equipment or machines except during normal
construction work hours authorized by the Costa Mesa Municipal
Code. The restricted work hours in this condition will not prohibit any
work required to prevent an actual, immediate harm to property or
persons, or any work during an emergency declared by the City or
other state or federal government agency or official with authority to
declare an emergency within the City. The Director may issue a stop
work order for any activities that violates this condition in whole or in
part. Permittee agrees to fully cooperate with the City in assisting the
City to achieve its accommodation obligations under the Americans
with Disabilities Act, the Fair Housing Act Amendments of 1988 and
other applicable laws.
9. Inspections; Emergencies. The permittee expressly acknowledges
and agrees that the City's officers, officials, staff, agents, contractors
or other City designees may enter onto the site and inspect the
improvements and equipment upon reasonable prior notice to the
permittee. Notwithstanding the prior sentence, the City's officers,
officials, staff, agents, contractors or other City designees may, but
will not be obligated to, enter onto the site area without prior notice to
support, repair, disable or remove any improvements or equipment in
emergencies or when such improvements or equipment threatens
actual, imminent harm to persons or property. The permittee, if
present, may observe the City's officers, officials, staff or other
designees while any such inspection or emergency access occurs.
10. Permittee's Contact Information. Within 10 days from the final
approval, the permittee shall furnish the City with accurate and up-to-
date contact information for a person responsible for the wireless
facility or other infrastructure deployment, which includes without
limitation such person's full name, title, direct telephone number,
facsimile number, mailing address and email address. The permittee
shall keep such contact information up-to-date at all times and
promptly provide the City with updated contact information if either the
responsible person or such person's contact information changes.
Such contact information shall be made publicly available on the City
website to permit the public to contact the site operator to address any
concerns, including but not limited to, excess noise.
Ordinance No. 2020-03 Page 18 of 32
11. Indemnification. The permittee and, if applicable, the property owner
upon which the wireless facility or other infrastructure deployment is
installed shall defend, indemnify and hold harmless the City, City
Council and the City's boards, commissions, agents, officers, officials,
employees and volunteers (collectively, the "indemnitees") from any
and all (i) damages, liabilities, injuries, losses, costs and expenses
and from any and all claims, demands, lawsuits, writs and other
actions or proceedings ("claims") brought against the indemnitees to
challenge, attack, seek to modify, set aside, void or annul the City's
approval of this Wireless Telecommunications Use Permit, and (ii)
other claims of any kind or form, whether for personal injury, death or
property damage, that arise from or in connection with the permittee's
or its agents', directors', officers', employees', contractors',
subcontractors', licensees' or customers' acts or omissions in
connection with this Wireless Telecommunications Use Permit or the
wireless facility or other infrastructure deployment. In the event the
City becomes aware of any claims, the City will use best efforts to
promptly notify the permittee and the private property owner (if
applicable) and shall reasonably cooperate in the defense. The
permittee expressly acknowledges and agrees that the City shall have
the right to approve, which approval shall not be unreasonably
withheld, the legal counsel providing the City's defense, and the
property owner and/or permittee (as applicable) shall promptly
reimburse the City for any costs and expenses directly and necessarily
incurred by the City in the course of the defense. The permittee
expressly acknowledges and agrees that the permittee's
indemnification obligations under this condition are a material
consideration that motivates the City to approve this Wireless
Telecommunications Use Permit, and that such indemnification
obligations will survive the expiration, revocation or other termination
of this Wireless Telecommunications Use Permit.
12. Performance Bond. Before the City issues any permits required to
commence construction in connection with this permit, the permittee
shall post a performance bond from a surety company authorized to
transact business in the State of California in a form acceptable to the
Public Services Director in an amount equal to twice the estimated
amount of performing the work to cover the cost to remove the
improvements and restore all affected areas based on a written
estimate from a qualified contractor with experience in wireless
facilities or other infrastructure removal. The written estimate must
include the cost to remove all equipment and other improvements,
which includes without limitation all antennas, radios, batteries,
generators, utilities, cabinets, mounts, brackets, hardware, cables,
Ordinance No. 2020-03 Page 19 of 32
wires, conduits, structures, shelters, towers, poles, footings and
foundations, whether above ground or below ground, constructed or
installed in connection with the wireless facility, plus the cost to
completely restore any areas affected by the removal work to a
standard compliant with applicable laws, including any street cuts or
pavement restoration requirements. In establishing or adjusting the
bond amount required under this condition, the Public Services
Director shall take into consideration any information provided by the
permittee regarding the cost to remove the wireless facility or other
infrastructure deployment to a standard compliant with applicable
laws. The performance bond shall expressly survive the duration of
the permit term to the extent required to effectuate a complete removal
of the subject wireless facility or other infrastructure deployment in
accordance with this condition.
13. Permit Revocation. Any permit granted under this code may be
revoked in accordance with the provisions and procedures of
Municipal Code section 13.29(o).
14. Record Retention. Throughout the permit term and for a period of
four years after the expiration or earlier termination of the permit, the
permittee must maintain a complete and accurate copy of the written
administrative record, which includes without limitation the Wireless
Telecommunications Use Permit application, Wireless
Telecommunications Use Permit, the approved plans and photo
simulations incorporated into this approval, all conditions associated
with this approval, any ministerial permits or approvals issued in
connection with this approval and any records, memoranda,
documents, papers and other correspondence entered into the public
record in connection with the Wireless Telecommunications Use
Permit (collectively, "records"). If the permittee does not maintain such
records as required in this condition, any ambiguities or uncertainties
that would be resolved by inspecting the missing records will be
construed against the permittee. The permittee shall protect all
records from damage from fires, floods and other hazards that may
cause deterioration. The permittee may keep records in an electronic
format; provided, however, that hard copies or electronic records kept
in the City's regular files will control over any conflicts between such
City -controlled copies or records and the permittee's electronic
copies, and complete originals will control over all other copies in any
form. The requirements in this condition shall not be construed to
create any obligation to create or prepare any records not otherwise
required to be created or prepared by other applicable laws.
Compliance with the requirements in this condition shall not excuse
Ordinance No. 2020-03 Page 20 of 32
the permittee from any other similar record -retention obligations under
applicable law.
15. Abandoned Facilities. The wireless facility or other infrastructure
deployment authorized under this Wireless Telecommunications Use
Permit shall be deemed abandoned if not operated in its permitted
manner for any continuous six-month period. Within 90 days after a
wireless facility or other infrastructure deployment is abandoned or
deemed abandoned, the permittee and/or property owner shall
completely remove the wireless facility or other infrastructure
deployment and all related improvements and shall restore all affected
areas to a condition compliant with all applicable laws, which includes
without limitation the Costa Mesa Municipal Code. In the event that
neither the permittee nor the property owner complies with the
removal and restoration obligations under this condition within said
90-day period, the City shall have the right (but not the obligation) to
perform such removal and restoration with or without notice, and the
permittee and property owner shall be jointly and severally liable for
all costs and expenses incurred by the City in connection with such
removal and/or restoration activities.
16. Landscaping. The permittee shall protect existing street tree(s) and
not impact its growth patterns. The permittee shall replace any
landscape features damaged or displaced by the construction,
installation, operation, maintenance or other work performed by the
permittee or at the permittee's direction on or about the site. If any
trees are damaged or displaced, the permittee shall hire and pay for
a licensed arborist to select, plant and maintain replacement
landscaping in an appropriate location for the species, subject to
Chapter V of Title 15 of the Municipal Code (Parkway Trees). Only
workers under the supervision of an International Society of
Arboriculture certified arborist shall be used to install the replacement
tree(s).
17. Cost Reimbursement. The permittee acknowledges and agrees that
(i) the permittee's request for authorization to construct, install and/or
operate the wireless facility will cause the City to incur costs and
expenses; (ii) the permittee shall be responsible to reimburse the City
for all reasonable costs incurred in connection with the permit, which
includes without limitation costs related to application review, permit
issuance, site inspection and any other costs reasonably related to or
caused by the request for authorization to construct, install and/or
operate the wireless facility or other infrastructure deployment,
including any third party costs; (iii) any application fees required for
Ordinance No. 2020-03 Page 21 of 32
the application may not cover all such reimbursable costs and that the
permittee shall have the obligation to reimburse the City for all such
costs 10 days after a written demand for reimbursement and
reasonable documentation to support such costs; and (iv) the City
shall have the right to withhold any permits or other approvals in
connection with the wireless facility until and unless any outstanding
costs have been reimbursed to the City by the permittee.
18. Underground Equipment. Unless infeasible, no above -ground
accessory equipment is allowed on the surface of the public Right -of -
Way. Pull boxes and other appurtenances shall not be installed in
planted parkways. They must be installed in the sidewalk with
approved traffic lids. All new construction must meet current ADA
requirements and City standards.
19. Future Undergrounding Programs. Notwithstanding any term
remaining on any Wireless Telecommunications Use Permit, if other
utilities or communications providers in the public rights -of -way
underground their facilities in the segment of the public rights -of -way
where the permittee's small wireless facility or other infrastructure
deployment is located, the permittee must also underground its
equipment, except the antennas and any approved electric meter, at
approximately the same time. Accessory equipment such as radios
and computers that require an environmentally controlled
underground vault to function shall not be exempt from this condition.
Small wireless facilities and other infrastructure deployments installed
on wood utility poles that will be removed pursuant to the
undergrounding program may be reinstalled on a streetlight that
complies with the City's standards and specifications. Such
undergrounding shall occur at the permittee's sole cost and expense
except as may be reimbursed through tariffs approved by the state
public utilities commission for undergrounding costs.
20. Electric Power Meters. If the commercial electric utility provider has
or in the future adopts or changes its rules obviating the need for a
separate or ground -mounted electric meter and enclosure, including
but not limited to the use of an unmetered connection to the electrical
power grid, the permittee on its own initiative and at its sole cost and
expense shall remove the separate or ground -mounted electric meter
and enclosure. Prior to removing the electric meter, the permittee shall
apply for any encroachment and/or other ministerial permit(s) required
to perform the removal. Upon removal, the permittee shall restore the
affected area to its original condition that existed prior to installation of
the equipment.
Ordinance No. 2020-03 Page 22 of 32
21. Rearrangement and Relocation. The permittee acknowledges that
the City, in its sole discretion and at any time, may: (A) change any
street grade, width or location; (B) add, remove or otherwise change
any improvements in, on, under or along any street owned by the City
or any other public agency, which includes without limitation any
sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles
and utility systems for gas, water, electric or telecommunications;
and/or (C) perform any other work deemed necessary, useful or
desirable by the City (collectively, "City work"). The City reserves the
rights to do any and all City work without any admission on its part that
the City would not have such rights without the express reservation in
this Wireless Telecommunications Use Permit. If the Public Services
Director determines that any City work will require the permittee's
wireless facility located in the public rights -of -way to be rearranged
and/or relocated, the permittee shall, at its sole cost and expense, do
or cause to be done all things necessary to accomplish such
rearrangement and/or relocation. If the permittee fails or refuses to
either permanently or temporarily rearrange and/or relocate the
permittee's wireless facility or other infrastructure deployment within a
reasonable time after the Public Services Director's notice, the City
may (but will not be obligated to) cause the rearrangement or
relocation to be performed at the permittee's sole cost and expense.
The City may exercise its rights to rearrange or relocate the
permittee's wireless facility or other infrastructure deployment without
prior notice to permittee when the Public Services Director determines
that City work is immediately necessary to protect public health or
safety. The permittee shall reimburse the City for all costs and
expenses in connection with such work within 10 days after a written
demand for reimbursement and reasonable documentation to support
such costs.
22. Truthful and Accurate Statements. The permittee acknowledges
that the City's approval relies on the written and/or oral statements by
permittee and/or persons authorized to act on permittee's behalf. In
any matter before the City in connection with the Wireless
Telecommunications Use Permit or the wireless facility or other
infrastructure approved under the Wireless Telecommunications Use
Permit, neither the permittee nor any person authorized to act on
permittee's behalf shall, in any written or oral statement, intentionally
provide material factual information that is incorrect or misleading or
intentionally omit any material information necessary to prevent any
material factual statement from being incorrect or misleading.
Ordinance No. 2020-03 Page 23 of 32
b. Modified Conditions. The City Council authorizes the Director to modify,
add or remove conditions to any Wireless Telecommunications Use Permit
as the Director deems necessary or appropriate to: (1) protect and/or
promote the public health, safety and welfare; (2) tailor the standard
conditions in subsection (a), of this subsection (6) to the particular facts
and circumstances associated with the deployment; and/or (3)
memorialize any changes to the proposed deployment need for
compliance with the Costa Mesa Municipal Code, generally applicable
health and safety requirements and/or any other applicable laws. To the
extent required by applicable FCC regulations, the Director shall take care
to ensure that any different conditions applied to wireless facilities are no
more burdensome than those applied to other infrastructure deployments.
(7) The city reserves all rights that it now possesses or may later acquire with
respect to the regulation of any cable or telecommunications service that is
provided, or proposed to be provided, by a telephone corporation. These
reserved rights may relate, without limitation, to the imposition of reasonable
conditions in addition to or different from those set forth in this section, the
exaction of a fee or other form of consideration or compensation for use of
public rights -of -way, execution of a leasing agreement, and related matters;
provided, however, that such regulatory rights and authority must be consistent
with federal and state law that is applicable to cable or telecommunications
services provided by telephone corporations.
(d) Eligible Facilities Exemption Requests. Consistent with subsection (b)(1)(c) of
this section, and consistent with Title 47 United States Code section 1455, a
request for a modification of an existing wireless tower or base station for the
collocation of new transmission equipment or removal or replacement of existing
transmission equipment shall not require a Wireless Telecommunications Use
Permit provided that such modification does not substantially change the physical
dimensions of such tower or base station from the dimensions approved as part of
the original discretionary permit for the tower or base station. However, any
modification to a wireless tower or base station which substantially changes the
physical dimensions of either the tower or base station, and any other modification
to a wireless telecommunications facility that does not qualify as a wireless tower
or base station (as defined in this section) shall obtain any required Wireless
Telecommunications Use Permit. Notwithstanding the foregoing, any eligible
facilities exemption request must obtain any other required permit(s) (e.g.,
encroachment permit, building permit). Encroachment permits for any eligible
facility shall not be issued unless the applicant provides all application materials
required by the Public Services Director in addition to the information listed in
subsections (b)(2)(g) and (b)(2)(i) through (b)(2)(m) of this section.
Ordinance No. 2020-03 Page 24 of 32
(1) Each request for an exemption submitted under this subsection (d) shall be
accompanied by:
a. Application Form. A complete, duly executed Eligible Facilities Exemption
Request application on the then -current form prepared by the Director.
b. Application Fee. The applicable Eligible Facilities Exemption Request
application fee established by City Council resolution. Batched
applications must include the applicable Eligible Facilities Exemption
Request application fee for each wireless facility in the batch. If no Wireless
Telecommunications Use Permit application fee has been established,
then the applicant must submit a signed written statement that
acknowledges that the applicant will be required to reimburse the City for
its reasonable costs incurred in connection with the application within 10
days after the City issues a written demand for reimbursement.
c. A detailed description of the proposed modification to the existing facilities;
d. A photograph, description, and as -built plans of the wireless tower and/or
base station as originally constructed, and a photo -simulation, description
and construction drawings of the wireless tower and/or base station after
modification, showing all relevant dimensions.
(2) Any encroachment permit issued for a facility determined to be an eligible
facility under this subsection (d) will be subject to all conditions required by the
Public Services Director. Additionally, such encroachment permit shall include
all standard conditions for Wireless Telecommunications Use Permits (See
subsection (c)(6)(a)) except that:
a. all references to Wireless Telecommunications Use Permits shall be
deemed to be references to the encroachment permit and all references to
the Director shall be deemed to be references the Public Services director
or designee;
b. notwithstanding subsection (c)(6)(a)(5), the encroachment permit build -out
period will automatically expire 6 months after the approval date unless the
permittee commences construction within that period; and
c. notwithstanding subsection (c)(6)(a)(13), the encroachment permit may be
revoked in accordance with the provisions of Municipal Code section 15-13.
(e) The definitions in this subsection (e) shall be applicable to the terms, phrases and
words this Code. Undefined terms, phrases or words will have the meanings
assigned to them in 47 U.S.C. § 153 or, if not defined therein, will have the meaning
assigned to them in Costa Mesa Municipal Code or, if not defined in either therein,
will have their ordinary meanings. If any definition assigned to any term, phrase or
Ordinance No. 2020-03 Page 25 of 32
word in this Section E conflicts with any federal or state -mandated definition, the
federal or state -mandated definition will control.:
(1) "accessory equipment" means equipment other than antennas used in
connection with a wireless facility or other infrastructure deployment. The term
includes "transmission equipment" as defined by the FCC in 47 C.F.R.
§ 1.6100(b)(8), as may be amended or superseded.
(2) "antenna" means the same as defined by the FCC in 47 C.F.R. § 1.6002(b), as
may be amended or superseded.
(3) "batched application" means more than one application submitted at the same
time.
(4) "base station" means the power supplies, electronic equipment housed in
cabinets and antennas at an existing wireless tower site that together comprise
a wireless tower. Distributed Antenna System installed pursuant to a Certificate
of Public Convenience and Necessity issued by the California Public Utilities
Commission is not a base station for purposes of this definition.
(5) "collector arterial" means a two-lane undivided roadway with no medians and
restricted access. Collector arterials differ from local collector streets in their
ability to handle through traffic movements between two arterials. The term
"collector arterial" as used in this code is defined in the Costa Mesa General
Plan, Circulation Element.
(6) "collocation" means the same as defined by the FCC in 47 C.F.R. § 1.6002(g),
as may be amended or superseded.
(7) "CPUC" means the California Public Utilities Commission established in the
California Constitution, Article XII, § 5, or its duly appointed successor agency.
(8) "decorative pole" means any pole that includes decorative or ornamental
features, design elements and/or materials intended to enhance the
appearance of the pole or the public rights -of -way in which the pole is located.
(9) "Director" means the Economic and Development Services Director or the
Director's designee.
(10) "divided collector arterial" means a modified secondary arterial with a
reallocation of pavement width to emphasize bicycle and pedestrian use.
Divided collector arterials provide one bicycle lane per direction on bicycle
corridors and one through vehicle lane per direction. The two directions of travel
are divided by a continuous two-way left -turn lane. The term "divided collector
arterial" as used in this Code is defined in the Costa Mesa General Plan,
Circulation Element.
Ordinance No. 2020-03 Page 26 of 32
(11) "FCC" means the Federal Communications Commission or its duly appointed
successor agency.
(12) "FCC Shot Clock" means the presumptively reasonable time frame, accounting
for any tolling or extension, within which the City generally must act on a request
for authorization in connection with a personal wireless service facility, as such
time frame is defined by the FCC and as may be amended or superseded.
(13) "local street" means a roadway with a functional classification that provides for
less traffic capacity than a collector arterial. The term "local streets" as used in
this Code are streets other than those provided on C-12 of the Costa Mesa
General Plan, Circulation Element.
(14) "major arterial" means a six -lane divided highway with raised or painted
medians. A major arterial may be designed with emphasis for automobile,
goods movement, and/or transit. Major arterials carry a large volume of regional
through traffic not handled by the freeway system. The term "major arterial" as
used in this Code is defined in the Costa Mesa General Plan, Circulation
Element.
(15) "ministerial permit" means any City -issued non -discretionary permit required to
commence or complete any construction or other activity subject to the City's
jurisdiction. Ministerial permits may include, without limitation, any building
permit, construction permit, electrical permit, encroachment permit, traffic
control permit and/or any similar over-the-counter approval issued by the City's
departments.
(16) "personal wireless services" means the same as defined in 47 U.S.C.
§ 332(c)(7)(C)(i), as may be amended or superseded.
(17) "personal wireless service facilities" means the same as defined in 47 U.S.C.
§ 332(c)(7)(C)(i), as may be amended or superseded.
(18) "primary arterial" The term "primary arterial" as used in this Code is defined in
the Costa Mesa General Plan, Circulation Element.
(19) "public right-of-way" or "public rights -of -way as used in this Code is defined has
having the same meaning as set out at Title 10, Chapter 1, Section 10-20.
(20) "RF" means radio frequency or electromagnetic waves.
(21) "secondary arterial" The term "secondary arterial" as used in this Code is
defined in the Costa Mesa General Plan, Circulation Element.
(22) "shot clock days" means calendar days counted toward the presumptively
reasonable time under the applicable FCC Shot Clock. The term "shot clock
days" does not include any calendar days on which the FCC Shot Clock is
tolled. As an illustration and not a limitation, if an applicant applies on February
Ordinance No. 2020-03 Page 27 of 32
1, receives a valid incomplete notice on February 5 and then resubmits on
February 20, only four "shot clock days" have elapsed because the time
between the incomplete notice and resubmittal are not counted. In the event
that the FCC Shot Clock is revised, shot clock days shall be calculated
consistent with applicable law, as revised.
(23) "small wireless facility" means the same as defined by the FCC in 47 C.F.R.
§ 1.6002(I), as may be amended or superseded.
(24) "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 initial approval for the tower
or base station 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 safety hazard, whether from wind loading, stress
on the wireless tower, or in any other manner.
b. Changing the physical dimension of a wireless tower where the changes
would be inconsistent with the design of the wireless tower, or make the
wireless towers more visible.
c. Changing the physical dimensions would require work that would intrude
upon the public right- of -way, or any environmentally sensitive area.
d. Increasing by more than ten (10) percent any of the following: the height
or width in any direction of the wireless tower, or the area required for
structures required to support the wireless tower, such as guy wires as
approved and constructed through the discretionary permit process;
provided that in no event shall the height exceed the maximum height
permitted under the city's regulations.
e. Increasing by more than ten (10) percent any of: the height or area
encompassed within any structure or object enclosing the wireless tower,
such as a fence or line of 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 ten
(10) percent.
g. Adding more than two (2) antenna arrays to an existing wireless tower, or
adding antenna arrays that, if the array were an existing array, would be of
such depth, circumference or radius as to fall outside of subsection (f) of
this section unless such arrays were approved pursuant to Government
Code section 65850.6.
Ordinance No. 2020-03 Page 28 of 32
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.
(25) "support structure" means a "structure" as defined by the FCC in 47 C.F.R.
§ 1.6002(m), as may be amended or superseded.
(26) "technically infeasible" means a circumstance in which compliance with a
specific requirement within this Code is physically impossible and not merely
more difficult or expensive than a noncompliant alternative.
(27) "underground district" means any area in the City within which overhead wires,
cables, cabinets and associated overhead equipment, appurtenances and
other improvements are either (1) prohibited by ordinance, resolution or other
applicable law; (2) scheduled to be relocated underground within 18 months
from the time an application is submitted; or (3) primarily located underground
at the time an application is submitted.
(28) "wireless telecommunications facility" shall have the same meaning as that set
forth in California. Government.Code 65850.6(d)(2) as may be amended from
time to time.
(29) "wireless tower" means any structure built for the sole purpose or primary
purpose of supporting antennas and their associated facilities used to provide
services licensed by the FCC. A Distributed Antenna System installed pursuant
to a Certificate of Public Convenience and Necessity issued by the California
Public Utilities Commission, a water tower, utility tower, street light, or other
structure built primarily for a purpose other than supporting services licensed
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.
B. Section 13-11 and Section 13-12 of the Municipal Code is amended to provide as
follows:
13-11. Zoning administrator.
(a) The development services director or his/her designee is authorized to
act as the zoning administrator according to procedures set forth in
the State Government Code.
(b) The zoning administrator is authorized to approve, conditionally
approve, or deny the following discretionary planning applications. The
zoning administrator may forward any action to the planning
commission for review.
(1) Administrative adjustment;
Ordinance No. 2020-03 Page 29 of 32
(2) Minor conditional use permit;
(3) Lot line adjustment; and
(4) Wireless Telecommunications Use Permit (see section 19-15); and
(5) Any action specified in this Zoning Code. (Ord. No. 97-11, § 2, 5-
5-97)
13-12. Planning division.
The development services director or his/her designees constitute the
planning division. The planning division is authorized to act on and grant
approvals of development reviews and minor modifications as described in
Chapter III, Planning Applications, Wireless Telecommunications Use Permit
(see section 19-15), and other duties as designated by the development
services director, planning commission, city council and this Zoning Code.
SECTION 3. Design Guidelines. The City Council hereby adopts and reaffirms the
approval of the Design Guidelines previously adopted by the City Council via Resolution
19-65 on October 1, 2019, and attached hereto as Exhibit A to this ordinance.
Notwithstanding that this adoption and reaffirmation is accomplished via ordinance, this
shall not preclude subsequent amendments to the Design Guidelines via either resolution
or ordinance.
SECTION 4. Environmental Determination The project has been reviewed for
compliance with the California Environmental Quality Act (CEQA), the CEQA guidelines,
and the City's environmental procedures, and has been found to be exempt pursuant to
CEQA Guidelines Section 15061(b)(3) (General Rule), in that the City Council hereby
finds that it can be seen with certainty that there is no possibility that this ordinance will
have a significant adverse effect on the environment. The design guidelines provide
general design criteria to improve the visual quality and compatibility of small wireless
facilities proposed within public right-of-way.
SECTION 5. Inconsistencies. Any provision of the Costa Mesa Municipal Code or
appendices thereto inconsistent with the provisions of this ordinance, to the extent of such
inconsistencies and or further, is hereby repealed or modified to the extent necessary to
affect the provisions of this ordinance.
SECTION 6. Severability. If any provision or clause of this ordinance or the application
thereof to any person or circumstances is held to be unconstitutional or otherwise invalid
by any court of competent jurisdiction, such invalidity shall not affect other provisions or
clauses or applications of this ordinance which can be implemented without the invalid
provision, clause or application; and to this end, the provisions of this ordinance are
declared to be severable.
SECTION 7. Publication. This Ordinance shall take effect and be in full force thirty (30)
days from and after the passage thereof, and prior to the expiration of fifteen (15) days
from its passage shall be published once in the ORANGE COAST DAILY PILOT, a
Ordinance No. 2020-03 Page 30 of 32
newspaper of general circulation, printed and published in the City of Costa Mesa or, in
the alternative, the City Clerk may cause to be published a summary of this Ordinance
and a certified copy of the text of this Ordinance shall be posted in the office of the City
Clerk five (5) days prior to the date of adoption of this Ordinance, and within fifteen (15)
days after adoption, the City Clerk shall cause to be published the aforementioned
summary and shall post in the office of the City Clerk a certified copy of this Ordinance
together with the names and member of the City Council voting for and against the same.
PASSED AND ADOPTED this V day of
ATTEST:
Brenda Green, ity Clerk
John Stephens, Mayor Pro Te
APPROVED AS TO FORM:
Kimberly H II Barlow
City Attorney
Ordinance No. 2020-03 Page 31 of 32
STATE OF CALIFORNIA)
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, BRENDA GREEN, City Clerk of the City of Costa Mesa, DO HEREBY CERTIFY
that the above and foregoing Ordinance No. 2020-03 was duly adopted at a regular meeting of
the City Council held on the 3rd day of March, 2020, by the following roll call vote, to wit:
AYES: COUNCIL MEMBERS: CHAVEZ, GENIS, MARR, REYNOLDS, STEPHENS
NOES: COUNCIL MEMBERS: MANSOOR
ABSENT: COUNCIL MEMBERS: FOLEY
IN WITNESS WHEREOF, I have hereby set my hand and affixed the Seal of the
City of Costa Mesa this 41h day of March, 2020.
Ordinance No. 2020-03 Page 32 of 32