HomeMy WebLinkAbout11 - PH-2 - Amend Wireless Telecommunications Facili - 8/21/2012CITY COUNCIL AGENDA REPORT
MEETING DATE: AUGUST 21, 2012
ITEM NUMBER:
SUBJECT: ADOPT AN ORDINANCE TO AMEND TITLE 19, CHAPTER 1, ARTICLE 4, SECTIONS
19-14 AND 19-15 REGARDING WIRELESS TELECOMMUNICATIONS FACILITIES IN
THE PUBLIC RIGHT-OF-WAY
DATE: AUGUST 9, 2012
FROM: PUBLIC SERVICES DEPARTMENT/ENGINEERING DIVISION
PRESENTATION ERNESTO MUNOZ, PUBLIC SERVICES DIRECTOR
BY:
FOR FURTHER INFORMATION CONTACT: FARIBA FAZELI, INTERIM CITY ENGINEER,
(714) 754-5335
RECOMMENDATION:
Adopt an ordinance to amend Title 19, Chapter 1, Article 4, Sections 19-14 and 19-15 regarding
wireless telecommunications facilities in the public right-of-way (Attachment 1).
BACKGROUND:
California Public Utilities Code
Under State and Federal law, the City has regulatory authority over both the placement and
appearance of wireless equipment in public rights-of-way. However, this authority is limited.
California Public Utilities Code section 79011 ("PUC 7901") grants a general statewide right to
telephone companies (including wireless providers) to install wireless cell phone equipment in
public rights-of-way.
These wireless telecommunications facility applications must be processed within 90 days of a
completed application for a collocation or within 120 days for a brand new structure/facility.
Federal Telecommunications Act of 1996
The Federal Telecommunications Act of 1996 ("TCA") renders unlawful the "effective
prohibition" of wireless services, through the denial of permits for telecommunications
equipment. However — within the very limited sphere of authority under state and federal law -
the City can require Conditional Use Permits (CUP) - and permits in general - for all wireless
facilities proposed to be placed in the public right-of-way. Any regulation pursuant to State law
must still be consistent with the Federal Telecommunications Act of 1996.
History of Approvals of Wireless Telecommunications Facilities in the City
Presently, Title 19 stipulates that telephone corporations, including telecommunication
providers, apply and obtain a discretionary encroachment permit from the Public Services
Department for installation of their facilities within the public right-of-way.
The permit applications are routed through other departments within the City for review and
conditioning. Public Services Department staff compiles the comments from other departments
and adds additional conditions/requirements to the permit. The Code does not require any
public notification for these applications.
To date, the Public Services Department has issued the following three permits to
telecommunication providers:
Encroachment Permit No. PS10-00550 located at 1555 Santa Ana Avenue to
NEXTG NETWORKS OF CALIFORNIA on 10-25-2010, Permit Fees: $935.00
Encroachment Permit No. PS10-00503 located at 1996 Tustin Avenue/396 20th
Street to T -MOBILE on 01-03-2011, Permit Fees: $935.00
Encroachment Permit No. PS11-00507 located at 1598 Placentia Avenue to
NEXTG NETWORKS OF CALIFORNIA on 11-29-2011, Permit Fees: $825.00
City Hearings
In October 2011, the Planning Commission requested staff to process a Code Amendment
which was forwarded to the City Council for consideration.
On November 15, 2011, the City Council authorized work activity pursuant to the Planning
Commission's direction to address telecommunication facilities in the public right-of-way.
On July 9, 2012, a report was presented to the Planning Commission outlining the proposed
amendment to Title 19, Chapter I, Article 4, Sections 14 and 15, of the City of Costa Mesa
Municipal Code. Subsequently, the Planning Commission recommended that City Council
approve and give first reading to the proposed ordinance.
ANALYSIS:
Code Amendment CO -11-02
State law mandates that the City must generally allow wireless telecommunications equipment
to be installed in any public right-of-way. Federal law prohibits the City from denying any permit
application if by doing so the City is "effectively prohibiting" wireless service. Yet, the City may,
within limits, regulate wireless communications equipment placed in the public right-of-way.
Wireless Telecommunications Permit Requirement
Currently, Code requires that all wireless telecommunication facilities in the public right-of-way be
processed as "over-the-counter" type permits with no public notice. The proposed Code
Amendment would require a public process and a "Wireless Telecommunications Use Permit" in
addition to the Encroachment Permit for any antenna that meets any of the following criteria:
1. If the antenna is greater than 26 inches in length;
2. If the volume of the Radio Box exceeds 2 cubic feet;
3. If it requires an above ground cdbinet/equipment.
4. If the antenna is located inside or within 500 feet of a residential zoning district.
2
Master Plan Document
Per the draft Ordinance, amendment of the City's Municipal Code, Title 19 will require wireless
telecommunications providers intending to install antennas in the City to submit a "Master Plan
Document" for review and approval by the Zoning Administrator providing the following
information:
1. Design of different prototypes of antennas facilities
2. Proposed locations
3. Total number of antennas to be installed
4. Proposed screening and landscaping
Once the "Master Plan Document" has been approved, the telecommunications providers can
obtain an Encroachment permit from the Public Services Department for each antenna per the
approved Master Plan Document. No additional discretionary review is required if the installation
involves the pre -approved design prototypes that are contained within the Master Plan.
However, if the telecommunications provider decides to revise an existing design in the
approved Master Plan Document or introduce a new design, it would have to go through the
Zoning Administrator's review and approval process.
Zoning Administrator Action Required
Currently the code does not require Zoning Administrator's review of proposed applications. Per
the draft ordinance, the Zoning Administrator is authorized to act on and grant approvals of a
discretionary application for a "Wireless Telecommunications Use Permit" and "Master Plan
Document". The Municipal Code provisions related to the Zoning Administrator's authority are
found in Title 13 of the Municipal Code (Attachment 2).
The Zoning Administrator shall serve as the final decision authority or may forward any action to
the Planning Commission for review. An appeal or review of the Zoning Administrator's
decision shall be according to the procedures set forth in Title 2, Chapter IX Appeal, Rehearing
and Review Procedure, of the Municipal Code (Attachment 3).
Valid for 10 -year Period
The Code does not currently set an expiration date on the encroachment permit. Per the draft
Ordinance, the Wireless Telecommunications Use Permits, Master Plan Documents and
Encroachment Permits shall be valid for a maximum ten (10) year period from the date of approval,
unless otherwise indicated in a condition imposed at the time of granting the application.
Height Limitation
The draft ordinance limits the height of antennas up to 30 feet unless an extension is required to
meet the federal or state health and safety laws.
Summary of New Process and Regulations vs, the Existing Process and Regulations
For certain wireless telecom applications, the proposed Code amendment would create a new
permit process and regulations as described below:
3
Comparison of Existing & New Procedures
for Wireless Telecommunications Facilities in the Public Right -of -Way
Existing Application Process
Proposed New Procedures
A.
Process)
Public Services Director (or designee) is the
Zoning Administrator shall be the final review
decision maker.
authority, unless appealed to Planning
Commission.
No Public Notice Required
Public Notification:
• Newspaper
• On-site posting
• Mailed notice to property owners
within 500 -feet of site.
Encroachment Permit required
New "Telecommunications Use Permit" or
"Master Plan Document" process and
Encroachment Permit.
No time limit on approval
Sunset for approval period is 10 years.
No maximum height limit
Maximum height of 30 feet.
The redlined/strikeout exhibits are provided in Attachment 4.
SURVEY OF SURROUNDING CITIES
City of Newport Beach Wireless Telecommunication Permit Requirements
The Planning Director is the decision maker for all Wireless Telecommunication Antennas that
meet the City of Newport Beach's guideline and standards. Approval by the City Council of
Newport Beach is required for the following Antennas:
If the height of Antennas exceeds thirty-five (35) feet.
If the Antenna is located at
a) New false tree
b) New "Slim Jim" monopole (i.e. with no antenna elements other than the pole itself)
c) New standard monopole attached antenna elements
d) New lattice tower
e) On common area lots or other non-residential lots within residential districts
D Within any required setback established in the Zoning Code
g) On multi -family structure on lots zoned Multi -Family Residential
The City of Newport Beach is in the process of amending their Code regarding the Wireless
Telecommunication requirements within the public ROW.
City of Irvine Wireless Telecommunication Permit Requirements
The City of Irvine issues the following three"types of permits for Wireless Telecommunication
Facilities:
1. Wireless Communication Facility Permit (administrative, staff level review)
2. Minor Conditional Use Permit reviewed by Zoning Administrator
3. Major Conditional Use Permit reviewed by the Planning Commission
4
Applications for a Wireless Communications Facility requiring either a Wireless Communication
Facility Permit or a conditional use permit are subject to the following procedures as determined by
the classification of the antenna installation and the location of the installation site as indicated in
the table below:
Review Procedure Matrix for City of Irvine
WCFP- Wireless Communication Facility Permit (administrative, staff level review)
ZA — Zoning Administrator
PC — Planning Commission
X — Not Permitted
It should be noted that at the discretion of the Director of Community Facility Permit, any WCFP
application may be forwarded to the Zoning Administrator for review and action and at the
discretion of the Zoning Administrator any minor conditional use permit may be forwarded to the
Planning Commission for review and action.
5
Location of Proposed Cell Site
Inside or
Inside or
Non -Residential
Non -Residential
Within 150
Within 150
District Located
District located
feet of any
feet of any
Within 150 feet to
Beyond 400 feet
Residential
Open Space
400 feet of a
from Residential or
District
District or
Residential or Open
Open Space
Public Park
Space District or
District or Public
Public Park
Park
Class 1 Antenna
Building Mount, Screened
PC
ZA
ZA
WCFP
Class 2 Antenna
Monorock/Monoshrub
PC
ZA
WCFP
WCFP
Class 3 Antenna
Pole Mount, Visible
(Streetlights/Traffic
PC
ZA
WCFP
WCFP
Signals/Utility Poles
Class 4 Antenna
Co -location
PC
ZA / PC
WCFP /ZA /PC
WCFP / ZA
/PC
Class 5 Antenna
Cell on Wheels (COW)
X
ZA
ZA
WCFP
Class 6 Antenna
Pole Mount (Visible Field
PC
PC
ZA
WCFP
Lights/Utility Towers)
Class 7 Antenna
Flagpole Mount
PC
PC
PC
ZA
Class 8 Antenna
Building Mount, Visible
X
PC
PC
ZA
Class 9 Antenna
Monopole, Interior Mount
(Enclosed Camouflaged
PC
PC
ZA
ZA
Tower
Class 10 Antenna
Monopole, Exterior Mount
PC
PC
PC
PC
Mono alms/Mono ines
Class 11 Antenna
Non -Camouflaged
X
X
X
PC
Monopole
WCFP- Wireless Communication Facility Permit (administrative, staff level review)
ZA — Zoning Administrator
PC — Planning Commission
X — Not Permitted
It should be noted that at the discretion of the Director of Community Facility Permit, any WCFP
application may be forwarded to the Zoning Administrator for review and action and at the
discretion of the Zoning Administrator any minor conditional use permit may be forwarded to the
Planning Commission for review and action.
5
ALTERNATIVES CONSIDERED:
The City Council may consider making changes to the proposed ordinance and requiring the
Planning Commission as the final authority to approve all types of antennas within the public right-
of-way.
Another alternative to the City Council is to not adopt the proposed ordinance. With this alternative
there will be no changes to the existing regulations.
FISCAL REVIEW:
There is no fiscal impact relative to this code amendment.
LEGAL REVIEW:
The City Attorney has reviewed and approved the Ordinance as to form.
CONCLUSION:
Currently, The City's Municipal Code Title 19, only requires an Encroachment Permit from the
Public Services Department for the installation of wireless telecommunications facilities in the
public right-of-way. The proposed amendment will require wireless telecommunications
providers to not only secure an Encroachment Permit from the Public Services Department, but
to also acquire a "Wireless Telecommunications Use Permit' and/or to provide the Zoning
Administrator with a "Master Plan Document" for review and approval for antennas meeting any of
the following criteria:
1. If the antenna is greater than 26 inches in length;
2. If the volume of the Radio Box exceeds 2 cubic feet;
3. If it requires an above ground cabinet/equipment.
4. If the antenna is located inside or within 500 feet of a residential zoning district.
In addition, the proposed amendment will limit the height of antennas to 30 feet above ground
and limits the permits to up to 10 years from the approval date.
At the regular Planning Commission meeting of July 9, 2012, the Planning Commissioners
recommended that the City Council adopt the attached ordinance to amend Title 19, Chapter 1,
Article 4, Sections 19-14 and 19-15 regarding wireless telecommunications facilities in the
public right-of-way. Staff's recommendation is that the City Council adopts the ordinance to
amend Title 19, Chapter 1, Article 4, Sections 19-14 and 19-15 regarding wireless
telecommunications facilities in the public right-of-way (Attachment 1).
ERNESTO NOZ
Public Services Director
0),aAAV,
FARIBA FAZELI
Interim City Engineer
C
ATTACHMENTS: 1 - Ordinance
2 - Title 13 of the Municipal Code
3 - Title 2, Chapter IX of the Municipal Code
4 - Redlined/strikeout exhibits of the existing Title 19 of the Municipal
Code
DISTRIBUTION: Chief Executive Officer
City Attorney
Deputy CEO/Director of Economic and Development
Finance and IT Director
City Clerk Division
7
ATTACHMENT 1
ORDINANCE NO. 12 -
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF COSTA MESA TO AMEND TITLE 19,
CHAPTER 1, ARTICLE 4, SECTIONS 19-14 AND 19-
15 REGARDING TELECOMMUNICATIONS
FACILITIES IN THE PUBLIC RIGHT OF WAY.
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY ORDAIN AS
FOLLOWS:
SECTION 1: TITLE 19 CODE AMENDMENT. Title 19, Chapter 1, Article 4 of the
Costa Mesa Municipal Code is hereby amended to read as follows:
A. Section 19-14 is amended to include to read as follows:
"Sec. 19-14. - Antennas for telecommunications services.
The city's zoning code sets forth the city's regulatory requirements relating to the siting and
construction of various types of wireless telecommunications facilities commonly used in
providing or receiving wireless telecommunications services on public and private property,
excluding the public rights-of-way.
(Ord. No. 98-18, A§ 1, 6-15-98)
Sec.19-15. — Wireless telecommunications services provided by telephone corporations in
the public rights-of-way.
(A)
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.
(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 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 234 (a) of the California Public Utilities Code defines a "telephone corporation" as
"every corporation or person owning, controlling, operating, or managing any telephone line
for compensation within this state."
(4)
Section 616 of the California Public Utilities Code provides that a telephone corporation "may
condemn any property necessary for the construction and maintenance of its telephone line."
(5)
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 of the poles, wires, mains, or conduits of any public utility on, under, or above
any public streets.
(6)
Section 7901 of the California Public Utilities Code ("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.
(7)
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.
(8)
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.
(9)
Section 1455 of Title 47 of the United States Code mandate 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.
(B)
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 public
rights-of-way:
(1)
Users of telecommunications equipment in the PROW must apply for and obtain, the
following, as deemed applicable by the City Engineer:
(a) A "Wireless Telecommunications Use Permit" is required for certain specified wireless
telecommunications structures pursuant to the criteria set forth in Subsection (C) below;
(b) A Wireless Telecommunications "Master Plan" is required for the approval of certain
specified design prototypes of wireless telecommunications structures;
(c) An excavation permit, an encroachment permit, and/or a building permit may be required
as applicable.
(2)
In addition to the information required by this Code in connection with an application for any
required permit, a telephone corporation must submit to the city the following supplemental
information:
(a) 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; provided, however, that these requirements may be waived by the city
where the applicant has submitted these documents in connection with a prior application,
and there have been no amendments or supplements to these documents.
(b)
If the applicant has obtained from the CPUC a certificate of public convenience to operate as
a "competitive local carrier," the following additional requirements are applicable:
(1)
As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has
timely filed with the city a quarterly report that describes the type of construction and the
location of each construction project proposed to be undertaken in the city during the
calendar quarter in which the application is filed, which information is sufficient to enable the
city to coordinate multiple projects, as may be necessary.
(2)
If the applicant's proposed construction project will extend beyond the utility rights-of-way, the
applicant must establish that it has filed a petition with the CPUC to amend its certificate of
public convenience and necessity and that the proposed construction project has been
subjected to a full-scale environmental analysis by the CPUC, as required by Decision No.
95-12-057 of the CPUC.
(3)
The applicant must inform the city whether its proposed construction project will be subject to
any of the mitigation measures specified in the Negative Declaration ["Competitive Local
Carriers (CLCs) Projects for Local Exchange Communication Service throughout California"]
or to the Mitigation Monitoring Plan adopted in connection with Decision No. 95-12-057 of the
CPUC. The city's issuance of a ministerial permit will be conditioned upon the applicant's
compliance with all applicable mitigation measures and monitoring requirements imposed by
the CPUC upon telephone corporations that are designated as "competitive local carriers."
(C)
The purpose of this section is to establish the parameters for discretionary review of a
"Wireless Telecommunications Use Permit" and "Master Plan" to identify processing
procedures, regulations, review criteria, and findings for these requests.
(1) Any wireless telecommunications facility that is to be installed within the public right-of-
way shall require a Public right-of-way encroachment permit.
(2) Except as provided in Subsection (D) and (G) any wireless telecommunication facility
that is located in the city's public right-of-way and meets any of the following criteria shall
require a Wireless Telecommunications Use Permit or Master Plan:
(a) If the antenna is greater than 26 inches in length;
(b) If the volume of the Radio Box exceeds 2 cubic feet;
(c) If the facility requires an above ground cabinet/equipment;
(d) If the facility is located within a 500 -foot radius of a residential zone
(3) The Wireless Telecommunications Use Permit or Master Plan application shall be
subject to the same planning application review process as for a Minor Conditional
Use Permit as set forth in Title 13, Chapter III, Planning Applications, of the Municipal
Code, except as otherwise indicated in this section. This application process includes,
but is not limited to, a completed application, applicable processing fees, public notice,
and appeals process. The application processing fee is a user fee that shall be
adopted by City Council by resolution.
(4) The Zoning Administrator is authorized to act on and grant approvals of a discretionary
application for a Wireless Telecommunications Use Permit or Master Plan. The
Municipal Code provisions related to the Zoning Administrator's authority are found in
Title 13 of the Municipal Code. The Zoning Administrator shall serve as the final
decision authority or may forward any action to the Planning Commission for review.
An appeal or review of the Zoning Administrator's decision shall be according to the
procedures set forth in Title 2, Chapter IX Appeal, Rehearing and Review Procedure,
of the Muncipal Code. `
(5) The City Engineer is authorized to:
(a) Act on and grant approvals of ministerial permits related to wireless
telecommunications facilities in the public right-of-way that do not meet the thresholds
identified in Section (C) 2 (a), (b), (c), and (d).
(b) Forward any request related to a wireless telecommunications facility in the public
right-of-way to the Zoning Administrator for review. These may include, but not be
limited to, ministerial permits.
The application process for these referrals to the Zoning Administrator shall be subject
to the same procedures, purpose, conditions, review criteria, and findings as described
for a Wireless Telecommunications use Permit or Master Plan.
(6) Review criteria for the Wireless Telecommunications Use Permit or Master Plan
application shall consist of the following:
(a) The final review authority shall limit their review to the factors allowed under
federal and state law, including the following:
(1) Compatible and harmonious relationship between the proposed facility
and site development or use(s), that exists or has been approved for the
general neighborhood.
(2) Safety and compatibility of the design of the proposed facilities, relevant
structures, landscaping, luminaries and other site features which may include
functional aspects of the site development.
(3) Compliance with any performance standards for wireless
telecommunications facilities as prescribed elsewhere in the Municipal Code, or
by City policy;
(4) Consistency with the General Plan.
(b) The final authority may not consider any impact on the health, safety and
welfare, or any information, evidence, or consideration which exceeds the
authority allowed to it under federal or state law.
(7) 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. These conditions
shall be within the authority allowed to the City pursuant to federal and state law.
Prior to processing an application, the Applicant shall furnish documentation from the
CPUC that the listed items below have been meet.
(a) When the applicant is leasing access to an existing facility that CPUC approval
has been processed in accordance with Public Utilities Code Section 851.
(b) When the applicant plans deployment of their facility over existing utility Rights
of Way, that they have completed the necessary CPUC review under the
California Environmental Quality Act (CEQA) for any such proposed build -out.
(8) When granting an application, the final review authority shall find that the evidence
presented in the administrative record substantially meets any required conditions
listed below.
(a) The location and placement of wireless telecommunications facilities in
the public right-of-way are reasonably considered along with the
California Public Utilities Code provisions for right of access to the public
right-of-way.
(b) The proposed wireless telecommunications facility is substantially
compatible with developments and uses in the same general area and
would not be substantially detrimental to developments or uses within
the general area.
(c) The proposed wireless telecommunications facility will not be materially
detrimental to the health, safety and general welfare of the public in so
far as the local agency is authorized to determine under federal and state
law.
(d) Antennas and any poles or other structures erected to support antennas
shall be visually compatible with surrounding building and vegetation.
The final review authority may require that the antenna be painted in a
neutral color to complement the existing natural and built environment.
(9) The Wireless Telecommunication Use Permit or Master Plan shall be valid for a ten
(10) year period from the date of approval, unless otherwise indicated in a condition
imposed at the time of granting the application or unless otherwise exempted under
federal or state law. Prior to the expiration of the permit, the applicant may apply for a
ten-year extension of time. If notice was required for the original application, and a
public hearing on the extension is allowed under federal and state law, notice of the
public hearing for a time extension shall be given according to the procedures set forth
in this section.
(10) 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.
(11) The maximum height of the telecommunication facilities allowed within the public
right of way shall not exceed thirty (30) feet (above the nearest top of curb elevation
grade level), unless such extension is required to comply with applicable federal or
state health and safety laws. (i.e. CPUC General Order 95).
(D)
Pursuant to Title 47 United States Code Section 1455 and notwithstanding any provision of
this Section to the contrary, 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 be approved ministerially without the processing of a
discretionary 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 be
subject to the permits and authorizations required by this article.
(E)
For purposes of this section, the following definitions shall apply:
(1) "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.
(2) "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.
(3) "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.
(4) "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 10% 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 10% 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 10%.
(g) Adding more than two 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)(3)(f) unless such arrays were approved pursuant to
Government Code Section 65850.6
(h) The mounting of the new or replacement transmission equipment
would involve installing new equipment cabinet(s) not permitted under
the initial approval and that will not fit within the existing enclosure for
the wireless tower or base station or would require installation of a
new cabinet or enclosure, excluding new equipment and cabinets that
will be installed underground.
(5) A Wireless Telecommunications Master Plan contains design prototypes for
wireless telecommunication antenna facilities, locational criteria for each prototype,
number of facilities, and proposed screening and landscaping.
(6) A Wireless Telecommunications Use Permit is a discretionary request for the
approval of a wireless telecommunications facility in the public right-of-way.
(F)
Each application submitted under Subsection (D) of this Section shall be accompanied by:
(1) a detailed description of the proposed modification to the existing facilities;
(2) a photograph or description of the wireless tower as originally constructed, if
available, and, a photograph of the existing wireless tower and/or base station, and
a graphic depiction of the wireless tower and/or base station after modification,
showing all relevant dimensions;
(3) a description of all construction that will be performed in connection with the
proposed modification; and
(4) a signed statement by a professional engineer licensed and qualified in California,
attesting that the modifications to be performed will not trigger discretionary review
under this section.
Any permit issued under Subsection (D) of this Section will be conditioned, and may be
revoked and the wireless telecommunication facility required to be removed if (a) any
statement made with respect to the WTF is not accurate; or (b) the City Engineer finds that
the modifications necessitated discretionary review.
SECTION 2: 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 Section
15061 (b) (3) (general rule) of the CEQA Guidelines, in that the City Council hereby finds that it
can be seen with certainty that there is no possibility that the passage of this ordinance
amending the Zoning Code will have a significant effect on the environment..
SECTION 3: 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 4: 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 5: 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 DAILY PILOT, a 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 day of 2012.
ATTEST:
Acting Deputy City Clerk of the City of Costa
Mesa
ERIC R. BEVER
Mayor of the City of Costa Mesa
APPROVED AS TO FORM:
City Attorney
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ATTACHMENT 2
Costa Mesa, California, Code of Ordinances >> TITLE 13 - PLANNING ZONING AND DEVELOPMENT
>> CHAPTER I. - GENERAL >> ARTICLE 3. - REVIEW AUTHORITIES >>
ARTICLE 3. - REVIEW AUTHORITIES
Sec. 13-7. - Purpose.
Sec. 13-8. - City council.
Sec. 13-9. - Redevelopment agency.
Sec. 13-10. - Planning commission.
Sec. 13-11. - Zoning administrator.
Sec. 13-12. - Planning division.
Sec. 13-7. - Purpose.
The purpose of this article is to establish the project review authority of the city council, the
redevelopment agency, the planning commission, the zoning administrator and the planning
division.
(Ord. No. 97-11, § Z 5-5-97)
Sec. 13-8. - City council.
The city council shall have final decision authority for appeals, final maps, specific plans,
master plans in the town center and planned development districts, rezones, general plan
amendments, density bonuses with financial incentives, Zoning Code amendments, improvement
and development agreements, annexations and any action specified in this Zoning Code. The city
council shall also be responsible for the acceptance of lands and/or improvements as may be
proposed for dedication to the city, except deeds of dedication and parcel maps of four (4) or fewer
lots with no development agreements. The city council may impose conditions of approval.
(Ord. No. 97-11, § 2, 5-5-97)
Sec. 13-9. - Redevelopment agency.
(a) Declaration of need of agency. It is hereby found and declared, pursuant to State Health and
Safety Code Section 33101, that there is a need for a redevelopment agency in the city, as
such agency was created by Section 33100, to function in the city, and the agency is hereby
authorized to transact business and exercise all of the powers granted to it under the
Community Redevelopment Law.
(b) Council declared agency. The five (5) members of the city council are hereby declared to be
the members of the redevelopment agency and are empowered to exercise all the rights,
powers, duties, privileges and immunities vested by the Community Redevelopment Law in
an agency.
(c) Term of agency members. Membership shall be for the period each councilmember serves in
office, and shall automatically terminate at the time any councilmember no longer holds the
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office of councilmember. Any vacancy existing on the redevelopment agency shall be filled
only by a duly elected sworn and acting city councilmember.
(Ord. No. 97-11, § 2, 5-5-97)
Sec. 13-10. - Planning commission.
(a) Commission created. Pursuant to the provisions of Section 65101 of the Planning and
Zoning Law of the State Government Code, there is hereby created a planning commission
which shall consist of five (5) members.
(b) Appointment of commission. The planning commissioners shall be appointed, and may be
removed, by a majority vote of the entire city council. Additional details for the appointment
procedures and member qualifications, terms and compensation may be set by city council
policy.
(c) Ex -officio member of commission. The city engineer and city attorney or his/her designee
shall attend the meetings of the planning commission and assist the commission in an
advisory capacity as needed.
(d) Absence from commission meetings without cause. If a planning commission member is
absent from three (3) consecutive regular meetings of the commission, without cause, the
office of the member shall be deemed to be vacant and the term of such member terminated.
The secretary of the planning commission shall immediately inform the city council of such
termination.
(e) Absence from commission meetings for cause. An absence due to illness or an unavoidable
absence from the city and written notice thereof given to the secretary of the planning
commission on or before the day of any regular meeting of the commission shall be deemed
absence for cause.
M Councilmember ineligibility. No legislative body member of the city shall be eligible for
membership on the planning commission.
(g) Authority of the planning commission.
(1) The planning commission shall have the power, except as otherwise provided by law,
to act on plans for the regulation of the future growth, development and beautification
of the city, in respect to:
a• Public and private buildings and works, streets, parks, grounds and vacant lots.
b• The future growth and development of the city in order to secure sanitation,
proper service of all public utilities, shipping and transportation facilities.
C. The location of any proposed buildings, structures, or works.
(2) The planning commission is authorized to act upon the following discretionary actions:
a• Recommend to the city council approval, conditional approval or denial of
general plan amendments, specific plans, rezones, Zoning Code amendments,
development agreements, density bonuses with public financial incentives,
preliminary and final master plans, and any other action specified in this Zoning
Code.
b• Recommend to the redevelopment agency approval, conditional approval or
denial of redevelopment actions, or adoption and/or amendments to a
redevelopment plan.
C. Approve, conditionally approve or deny applications for conditional use permits,
variances, tentative tract and parcel maps, density bonuses without public
financial incentives, and any other action specified in this Zoning Code.
d.
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Perform other duties necessary to carry out the provisions reserved to the
planning commission in Title 10 of the Municipal Code, the provisions of this
Zoning Code and the provisions of the Planning, Zoning and Development Law
of the State Government Code.
(h) Commission bylaws authorized. The planning commission shall have the power, except as
otherwise provided by law, to adopt such bylaws as it may deem necessary to provide for:
(1) The time and place of meeting.
(2) The time and method of electing officers.
(3) Such other matters relative to the organization of the planning commission and
methods of administration of its duties which are not otherwise provided for by statute
or ordinance.
(i) Regular meeting of commission defined. A regular meeting as provided by law or by rule of
the planning commission or any regularly advertised public hearing shall be deemed a
regular meeting.
(Ord. No. 97-11, § Z 5-5-97,Ord. No. 01-12, § 1, 3-5-01; Ord. No. 02-4, § 1a, 3-18-02; Ord. No. 03-2, § 3, 3-3-03,
Ord. No. 04-17, § 3, 1-3-05)
Sec. 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;
(2) Minor conditional use permit;
(3) Lot line adjustment; and
(4) Any action specified in this Zoning Code.
(Ord. No. 97-11, § Z. 5-5-97)
Sec. 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, and other duties as designated by
the development services director, planning commission, city council and this Zoning Code.
(Ord. No. 97-11, § 2, 5-5-97)
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ATTACHMENT 3
Costa Mesa, California, Code of Ordinances >> TITLE 2 -ADMINISTRATION >> CHAPTER IX. -
APPEAL REHEARING AND REVIEW PROCEDURE >>
CHAPTER IX. - APPEAL, REHEARING AND REVIEW PROCEDURE 21
Sec. 2-300. - Purpose.
Sec. 2-301. - Definitions.
Sec. 2-302. - City council review requests.
Sec. 2-303. - Procedure for appeal.
Sec. 2-304. - Procedure for rehearing.
Sec. 2-305. - Time limitations for appeals, rehearings, and reviews.
Sec. 2-306. - Time limitation for issuance of permits.
Sec. 2-307. - Fees.
Sec. 2-308. - Notice of appeal, rehearing or review.
Sec. 2-309. - Person or body to hear an appeal or review a decision.
Sec. 2-310. - Exhaustion of administrative remedies.
Sec. 2-311. - Exclusive procedures.
Sec. 2-312. - Accrual of certain claims.
Sec. 2-313. - Limitations on iudicial review.
Sec. 2-314. - Severability.
Secs. 2-315-2-400. - Reserved.
Sec. 2-300. - Purpose.
The purpose of this chapter is to provide an orderly and fair method of appeal, rehearing and
review of decisions of the staff, committees, commissions and council of the city.
(Ord. No. 06-91 § 1, 1-17--06)
Sec. 2-301. - Definitions.
As used in this chapter, the following terms shall have the meanings set forth herein below:
(1) Affected person means any person, including the applicant, any city staff member,
committee, or commission who has an interest in the matter at issue or whose health,
safety, or welfare may be affected by the decision.
(2) Appeal means reconsideration, by a higher authority, of the specific facts and
circumstances of any final decision made by the city, any of its employees,
committees or commissions or by the redevelopment agency.
(3) Applicant means the person who applied for or requested the decision or action which
is the subject of the appeal, rehearing or review.
(4) Council means the Costa Mesa City Council.
(5) Decision means any final decision, finding, ruling, order or action.
(6) Permit, as used in section 2-306, means anything referred to elsewhere in this Code
as being a "permit" or "license."
(7) Person shall have the meaning attributed in section 1-21 of this Code.
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(8) Rehearing means reconsideration of a decision by the person or body having made
the decision.
(9) Review means reconsideration of the decision of any city employee, committee, or
commission requested by the city council, on its own motion, or upon request of any
council member, in order to consider the decision and any broad legislative and policy
factors involved.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-302. - City council review requests.
Within the time limits set forth in section 2-305, the city council or any council member may
request that a decision of any city employee, committee, or commission be reviewed by filing an
application with the city clerk stating the reasons for the requested review. Said review will be
conducted according to the procedures specified in section 2-303 and 2-309. The person or body to
hear the review will be designated in the application by the person or body seeking such review and
shall be as specified in section 2-309, unless the council as a whole specifies a higher level of
review in the first instance.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-303. - Procedure for appeal.
(1) Any affected person may, within the time limits set forth in section 2-305, file an application
for appeal with the city clerk. Said application shall contain sufficient information to identify
the party, its interest in the matter, and the reasons for requesting an appeal.
(2) If the appeal is to be heard by a person or body which conducts regularly scheduled
meetings, the appeal shall be considered at the first regular meeting which follows receipt of
the application by ten (10) or more days, and which allows sufficient time for the giving of
notice as required by section 2-308
(3) If the appeal is to be heard by an individual or body which does not conduct regularly
scheduled meetings, the appeal shall be considered not more than ten (10) days following
receipt of the application; provided that the time period may be extended if necessary to
allow the giving of notice as required by section 2-308
(4) An appeal hearing shall consist of a new (i.e., de novo) hearing on the matter by the person
or body specified in section 2-309. The appeal hearing shall be based on the following
evidence:
(a) Any relevant evidence, including staff reports, etc., submitted at the time of the prior
decision and at the appeal hearing, and
(b) Findings, if any, and decision of the person or body whose decision is being appealed.
(5) Notwithstanding the provisions of this chapter, there shall be no right of appeal to the city
council from a decision by a public officer designated by City Council Policy No. 100-7 on an
application for a waiver of fees for use of a city owned public facility or show wagon. A
decision pursuant to City Council Policy No. 100-7 shall be subject to California Code of Civil
Procedure section 1094.6.
(6) If the original decision being appealed involved issuance of any permit, license, or other
entitlement or approval or requested some action by the city, the applicant for the original
decision shall have the burden of proof to support the granting of the requested issuance,
approval, or action at the appeal.
(Ord. No. 06-1, § 1, 1-17-06)
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Sec. 2-304. - Procedure for rehearing.
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(1) Any affected person, or the city council or any council member, may within the time limits set
forth in section 2-305 file an application for rehearing with the city clerk. The application shall
contain sufficient information to identify the party, its interest in the matter, and the reasons
for requesting a rehearing.
(2) The application shall be considered at the first regular meeting which follows filing of the
application by ten (10) or more days, or shall be considered within ten (10) days if the person
or body to whom the application is made does not hold regular meetings.
(3) To justify a rehearing the applicant must show in the application that there is new, relevant
evidence which, in the exercise of reasonable diligence, could not have been produced, or
which was improperly excluded, at the earlier hearing, or that the person or body failed to
comply with the law, which contention was not asserted at the earlier hearing. The person or
body may in its discretion decide whether to hear additional evidence than what is contained
in the application. The decision whether to grant the rehearing is final and may not be
appealed or reheard.
(4) If the person or body concludes the applicant has met the burden of justifying the rehearing,
the rehearing will be scheduled for the next regular meeting which allows sufficient time for
the giving of notice as required by section 2-308
(5) No application for rehearing is required to be filed by any member of the city council or the
redevelopment agency to allow the council or agency to take any new or different action on
an item of city policy, agency policy, or a purely legislative function or decision, which does
not involve a specific property owner, application, license or permit. The city council or
redevelopment agency, respectively, may establish reasonable rules to restrict the number of
times a particular policy or legislative decision may be considered by the city council or the
redevelopment agency.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-305. - Time limitations for appeals, rehearings, and reviews.
All applications for appeals, rehearings, and reviews must be filed, in writing, during regular
business hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, except holidays, and within the
time limits hereinafter set forth:
(1) For all matters relating to the approval, disapproval or extension of tentative and
parcel maps, within ten (10) days from the date of the final decision subject to appeal,
rehearing or review.
(2) For all other items, within seven (7) days from the date of the final decision subject to
appeal, rehearing or review.
(3) For all matters requiring approval by the city, its employees, committees, commissions
or council and by the redevelopment agency, the time limits for all applications shall
begin on the date of the later of the following:
(a) Final decision by the city, its employees, committees, commissions or council;
or
(b) Final decision by the redevelopment agency.
If the final day for filing an application for appeal, rehearing or review falls on a holiday
or weekend day when city hall is closed, the application shall be filed no later than the
next business day.
(Ord. No. 06-1, § 1, 1-17-06)
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Sec. 2-306. - Time limitation for issuance of permits.
Where a permit is sought and its issuance is contingent upon obtaining a prerequisite permit,
the permit sought shall not be issued until the expiration of the time limit for seeking an appeal,
rehearing, or review specified in section 2-305 applied to the prerequisite permit. Provided,
however, that if an application for appeal, rehearing, or review of the prerequisite permit is filed
within the specified time limits, the permit sought shall not be issued until seven (7) days following
the final decision on the appeal, rehearing, or review. Any permit issued in violation of the
provisions of this section shall be void.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-307. - Fees.
Each application for appeal or rehearing shall be accompanied by a processing fee in an
amount determined by resolution of the city council.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-308. - Notice of appeal, rehearing or review.
Notice of the hearing for the appeal, rehearing, or review shall be given in the same manner
as any required notice for the hearing at which the decision subject to the appeal, rehearing, or
review was made. In all cases for the hearing for an appeal, rehearing, or review, written notice of
the date, time, and place shall be given to the original applicant, if any, any prior applicant for
appeal or rehearing regarding the same matter, and for appeals and rehearings the person
requesting the current appeal or rehearing.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-309. - Person or body to hear an appeal or review a decision.
The person or body to hear an appeal or review a decision shall be the following:
(1) From a decision of the city staff to the department head; except that an appeal from a
decision of the transportation services engineer regarding traffic matters pursuant to
Title 10 of this Code, shall be made to the planning commission;
(2) From a decision of the department head to the city manager; except that (a) an appeal
from a decision of the development services director on planning matters pursuant to
Title 13 of this Code shall be made to the planning commission, and (b) an appeal
from a decision of the building official on building matters pursuant to Title 5 of this
Code shall be to the access, building, fire and housing board of appeals as required
by section 5-3 of this Code;
(3) From a decision of the city manager to the city council;
(4) From a decision of any city committee or commission to the city council.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-310. - Exhaustion of administrative remedies.
Unless appealed, reheard, or reviewed as provided herein, any decision becomes final for all
purposes when made. To constitute the exhaustion of administrative remedies and as a condition
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precedent to filing any court action thereon, there must be filed and considered an application for
rehearing of the council action in any case where any of the factors set forth in subsection 2-304(3)
are contended to exist. If an application for rehearing a council decision is filed, the council's
decision becomes final when either (1) the application is denied, or (2) a decision is made at the
rehearing.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-311. - Exclusive procedures.
The procedures set forth in this chapter are the exclusive methods by which appeals,
rehearings and reviews may be pursued and none of the steps set forth herein may be waived or
omitted.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-312. - Accrual of certain claims.
No claim for violation of constitutional rights for deprivation of economic use of property shall
arise until and unless a claimant has secured a final decision on a permit application for a plan of
development and on a request for a variance or similar relief from the zone or other development
standard for a plan of development as specified in Title 13 of this Code.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-313. - Limitations on judicial review.
Notwithstanding any provision in this Code to the contrary, no court action or proceeding to
attack, review, set aside, void or annul any decision or procedure of the City of Costa Mesa, its
council, commissions, boards or officers, which has become administratively final shall be
maintained by any aggrieved person unless duly commenced in a court of competent jurisdiction
within ninety (90) days, as provided in California Code of Civil Procedure, Section 1094.6,
incorporated herein by reference, and/or as provided in California Government Code section 65009,
or any shorter statute of limitations provided by law.
(Ord. No. 06-1, § 1, 1-17-06)
Sec. 2-314. - Severability.
If any provision of this chapter is found to be invalid or unconstitutional by interpretation or
application to any person or circumstances, such invalidity or unconstitutionality shall not affect the
other provisions or applications thereof which can be given valid effect.
(Ord. No. 06-1, § 1, 1-17-06)
Secs. 2-315-2-400. - Reserved.
FOOTNOTE(S):
(9) Editor's note— Ord. No. 06-1, § 1, adopted January 17, 2006, amended chapter TX, in its entirety to read as
herein set out. Fonner chapter iX, §§ 2-300-2-314, pertained to similar provisions. and derived from Ord. No. 80-
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19, § 3, 10-23-80; Ord. No. 87-29, § 2, 12-7-87; Ord. No. 93-8, § 6, 4-5-93; Ord. No. 97-25, § 2, 8-4-97; Ord. No. 98-
24, § 1, 10-5-98; Ord. No. 99-11, § 1, 7-19-99; Ord. No. 00-8, § 1, 6-5-00; Ord. No. 05-6, §§ 4, 5, 4-19-05. Back
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ATTACHMENT 4
Redlined/Strike-out Text
Title 19, Chapter 1, Article 4
Sec. 19-14. - Antennas for telecommunications services.
The city's zoning code sets forth the city's regulatory requirements relating to the siting
and construction of various types of wireless telecommunications facilities that are
commonly used in providing or receiving wireless telecommunications services on public
and private property, excluding the public rights-of-way.
(Ord. No. 98-18, A§ 1, 6-15-98)
Sec. 19-15. — Wireless telecommunications services provided by telephone corporations
in the public ri�;Iits-of. way.
(A)
The city council finds and determines as follows:
(1)
The Federal Telecommunications Act of 1996"`F( TCA„) preempts and declares invalid
all state rules that restrict entry or limit competition in both local and long-distance
telephone service.
(2)
The California legislature has delegated to the Public Utilities Commission ("CPUC") is
� Fe;sponsiblefor- the, implementation o f primary authority to regulate local
telephone competition, and it issues 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 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 234 (a) of the California Public Utilities Code defines a "telephone corporation”
as "every corporation or person owning, controlling, operating, or managing any
telephone line for compensation within this state."
(4)
Section 616 of the California Public Utilities Code provides that a telephone corporation
"may condemn any property necessary for the construction and maintenance of its
telephone line."
(5)
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 of the poles, wires, mains, or conduits of any public utility
on, under, or above any public streets.
(6)
Section 7901 of the California Public Utilities Code ("Section 7901 ") authorizes
telephone and wireless telegraph corporations to construct telephone teleg.faph 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.
(7)
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.
(8)
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.
Section 1455 of "Title 47 of the United States Code mandate 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.
(B)
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 wag("PROW")elepe
serpoRu, 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 public rights-of-way:
(1)
Users oftelecommunications equipment in the PROW must
apply for and obtain, the following , as deemed applicable by the City Engineer:
a A "Wireless Telecommunications Use Permit" is required for certain specified
wireless telecommunicati.on.s structures pursuant to the criteria set forth in Subsection (C)
below,
(b) A Wireless Telecommunications "Master Plan" is required for the approval of certain
specified design prototypes of wireless telecommunications sti.xictures;
(c) An excavation permit an encroachment permit. and/or a building permit may be
required as applicable.
(2)
In addition to the information required by this Code in connection with an application for
any regtLired ministeftal. permit, a telephone corporation must submit to the city the
following supplemental information:
(a)
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; provided, however, that these requirements may be waived by
the city where the applicant has submitted these documents in connection with a prior
application, and there have been no amendments or supplements to these documents.
(b)
If the applicant has obtained from the CPUC a certificate of public convenience to
operate as a "competitive local carrier," the following additional requirements are
applicable:
(1)
As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it
has timely filed with the city a quarterly report that describes the type of construction and
the location of each construction project proposed to be undertaken in the city during the
calendar quarter in which the application is filed, which information is sufficient to
enable the city to coordinate multiple projects, as may be necessary.
(2)
If the applicant's proposed construction project will extend beyond the utility rights-of-
way ii-Ae , ndist,,, bedareas or -other- r „ hts of way, the applicant must establish that it has
filed a petition with the CPUC to amend its certificate of public convenience and
necessity and that the proposed construction project has been subjected to a full-scale
environmental analysis by the CPUC, as required by Decision No. 95-12-057 of the
CPUC.
(3)
The applicant must inform the city whether its proposed construction project will be
subject to any of the mitigation measures specified in the Negative Declaration
["Competitive Local Carriers (CLCs) Projects for Local Exchange Communication
Service throughout California"] or to the Mitigation Monitoring Plan adopted in
connection with Decision No. 95-12-057 of the CPUC. The city's issuance of a
ministerial permit will be conditioned upon the applicant's compliance with all applicable
mitigation measures and monitoring requirements imposed by the CPUC upon telephone
corporations that are designated as "competitive local carriers."
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The purpose of this section is to establish the parameters for discretionary review of a
"Wireless Telecomnnurications Use Permit" and "Master Plan" to identify processing
procedures. regulations, review criteria, and findings lbr these .requests.
(1) Any wireless teleconununications facility that is to be installed within the public
right -of -war shall require a Public right-of-way encroachment permit.
(2) Except as provided in Subsection (D) and (G) any tivireless telecommunication
facility that is Located in the city's public right-of-way and meets any of the following
criteria shall require a Wireless Telecommunications Use Permit or Master Plan:
(a) If the antenna is greater than 26 inches in. length;
(b) If the volume of the Radio Box exceeds 2 cubic feet;
(c) If the facility requires an above mound cabinet/equipment;
(d) If the facility is located within a 500 -foot radius of a residential zone
(3) The Wireless Telecommunications Use Permit or Master Plan application shall be
subject to the same planning pplication review process as for a Minor
Conditional Use Permit as set forth in `title 13, Chapter III, Planning
Applications, of the Municipal Code, except as otherwise indicated in this section.
This application. process includes, but is not limited to, a completed application,
applicable processing fees, public notice, and appeals process. The application
processing fee is a user fee that shall. be adopted by City Council by resolution.
(4) The Zoning Administrator is authorized to act on and (grant approvals of a
discretionary application for a Wireless Telecommunications Use Permit or
Master Plan. The Municipal Code provisions related to the Zonink,
Administrator's authority are found in Title 13 of the Municipal Code. The
Zoning Administrator shall. serve as the final decision authority or may forward
anv action to the Planning Commission for review. An appeal or review of the
Zoning; Administrator's decision shall be according to the procedures set forth in
Title 2, Chapter IX Appeal, Rehearint7 and Review Procedure of the Muncipal
Code.
(5) The City Engineer is authorized to:
(a) Act on and grant approvals of ministerial permits related to wireless
telecommunications facilities in the public right-of-way that do not meet the
thresholds .identified in Section (C) 2 (a), (b), (c), and (d).
(b) Forward any request related to a wireless telecommunications facility in the
public right-of-way to the Zoning Administrator for review. These may include
but not be limited to, ministerial permits.
The appli.cati.on. process for these re:len-als to the Zoning Administrator shall be
subject to the same procedures, purpose, conditions, review criteria, and findings
as described for a Wireless Telecommunications use Pen -nit or Master Plan.
(6) Review criteria for the Wireless Telecommunications Use Permit or Master Plan
application shall consist of the following:
(a) The final review authority shall limit their review to the factors allowed
under federal and state law, including, the following:
(1) Compatible and hannonious relationship between the proposed
facility and site development or use(s), that exists or has been approved
for the general neighborhood.
(2) Safety and compatibility of the design of the proposed facilities,
relevant structures, landscaping, luminaries and other site features which
may include functional aspects of the site development.
(3) Compliance with any performance standards for wireless
telecommunications facilities as prescribed elsewhere in. the
Municipal Code, or by City policL
(4) Consistency with the General Plan.
(b) The I-In.al .review authority may not consider any impact on the health,
safety and welfare, or anv information, evidence, or consideration which
exceeds the authority allowed to it under federal or state law.
(7) 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. These conditions shall. be within. the authority allowed to the City
pursuant to federal and state law.
Prior to processing an application, the Applicant shall. furnish. documentation from
the CPUC that the listed items below have been meet.
(a) When the applicant is leasing access to an existing facility that
CPUC approval has been processed in accordance with Public
Utilities Code Section 851.
(b) When the applicant plans deployment of their facility over existing
utility Rights of Way, that they have completed the necessary
CPT -JC review sunder the California Environmental Quality Act
(CEQA) for any such proposed build -out.
(8) When granting an application the final review authority shall find. that the
evidence presented in the administrative record substantially .meets any required
conditions listed below.
(a) The location and placement of wireless telecommunications
facilities in the public right-of-way are reasonably considered
along with the California Public Utilities Code provisions for right
of access to the public right-of-way.
(b) The proposed wireless telecommunications facility is substantially
compatible with developments and uses in the same general area
and would not be substantially detrimental to developments or uses
within the general area.
(c) The proposed wireless telecommunications facility will not be
materially detrimental to the health, safety and general. welfare of
the public in so far as the local agency is authorized to determine
under federal and state law.
(d) Antennas and any poles or other structures erected to support
antennas shall be visually compatible with surrounding �building
and vegetation. The final review authority may require that the
antenna be painted in a neutral color to complement the existing
natural and built environment.
(9) The Wireless 'Telecommunication Use Permit or Master Plan shall be valid for a
ten (10) year period from the date of approval. unless otherwise indicated in. a
condition imposed at the time of granting the application or unless otherwise
exempted under federal or state law. Prior to the expiration of the permit, the
applicant may apply for a ten-year extension of time. if notice was required for
the original application and a public hearing on the extension is allowed under
federal and state law notice of the public hearing for a time extension shall be
given according to the procedures set forth in this section.
1U0 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.
(11) The maximum height of the telecommunication facilities allowed. within the
public right of way shall not exceed thirty (30) feet (above the nearest top of
curb elevation grade level)unless such extension is required to comply with
applicable federal or state health and safety ]a -.,Nis. (i.e. CPUC General Order
9S).
Pursuant to Title 47 United States Code Section 1455 and notNNithstanding any provision
of this Section to the contrary, 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 be approved ministerially without
the processing of a discretionary 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 pen -nit 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 be subject to the pennits
and authorizations required by this article.
LEI
For purposes of this section the following definitions shall. apply:
(1) "Wireless telecommunications facility" shall have the same meaninC7 as
that set forth in Califon -iia Government Code 65850.6(d)(2) as may be
amended from time to time.
(2) "Wireless tower" means any structure built for the sole purpose or primary
purpose of soporting 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
,A ireless tower for purposes of this definition.
(3) `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.
(4) "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 ain 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) Clnan.gin.g 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 10% 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 1 the
discretionary ermit process; provided that in no event shall the
height exceed the maximum height permitted imder the city's
regulations.
(e) Increasing by more than 10% any af. 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 fiom the vdreless tower in
any direction by more than 1.0%.
(g) Adding more than two 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)(3)f)_unless such arrays were
approved pursuant to Government Code Section 65850.6
(h) The mounting of the new or replacement transmission
equipment would involve installing new equipment cabinet(s)
not permitted under the initial approval and that will not fit
within the existing), enclosure for the wireless tower or base
station or would require installation of a new cabinet or
enclosure, excluding new equipment and cabinets that will be
installed underground.
(5) A Wireless 'relccommLmications Master Plan contains design prototypes for
wireless telecommunication antenna facilities, locational criteria for each
prototype. number of facilities, and proposed screening and .landscaping.
(6) A Wireless Telecommunications Use Pennit is a discretionary request for the
approval of a wireless telecommunications facility in the public ri�yht-of-way.
Each application submitted under Subsection (D) of this Section shall be accompanied
by:
(1) a detailed description of the proposed modification to the existing facilities,
(2) a photograph or description of the wireless tower as originally constructed, if
available, and a photograph of the existing wireless tower and/or base station,
and a graphic depiction of the wireless tower and/or base station after
modification sho«ring all relevant dimensions:
(3} a description of all. construction that will. be performed in. connection with the
proposed modification: and
(4) a signed statement by a professional engineer, licensed and qualified in
California attesting that the modifications to be performed will not trigger
discretionary review under this section.
Anv hermit issued under Subsection (D) of this Section will be conditioned and may be
revoked and the wireless telecommunication facility required to be removed if (a) any
statement made with respect to the wireless telecommunications facility is not accurate
f or b) the City Engineer finds that the modifications necessitated discretionary
review.