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HomeMy WebLinkAbout50A - ORD TELECOMMUNICATIONS FACREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: AUGUST 21, 2018 TITLE: ORDINANCE REPEALING AND REENACTING IN ITS ENTIRETY ARTICLE X OF CHAPTER 33 OF THE SANTA ANA MUNICIPAL CODE REGARDING TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY {STRATEGIC PLAN NOS. 6, 1G; 3,2C) CI MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: UTJ00J;TG7J5lJb1 ❑ As Recommended ❑ As Amended ❑ Ordinance on 1 at Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Adopt an ordinance repealing and reenacting in its entirety Article X of Chapter 33 of the Santa Ana Municipal Code regulating telecommunication facilities in the public right-of-way. DISCUSSION In 2011, the City Council adopted Ordinance NS -2816 adding Article X to Chapter 33 of the Santa Ana Municipal Code to regulate telecommunications facilities in the public right-of-way. In order to accommodate advancement in wireless technologies and new Federal and State laws, staff proposes an update to the ordinance which will establish the methods by which the City will review, process, and control wireless communication facilities in the public right-of-way. Telecommunications advancements and consumer demand for network data capacity have led the wireless industry to seek to deploy smaller and more densified wireless antenna facilities in the public rights-of-way. Different types and sizes of wireless facilities deliver different wireless coverages and capacities. A "macro cell' is typically used for larger coverage, with a radius of several miles, and these facilities are typically located on freestanding towers, faux tree poles, tall buildings, water tanks, etc. These "macro cells" are the types that have been traditionally utilized by the wireless industry. In recent years, wireless providers have increasingly sought to place "small cell' antennas and equipment on existing infrastructure located within the public right-of-way. Typically, a small cell antenna is attached to a streetlight or utility pole, or placed mid -span on wires between utility poles. Wireless providers typically place these small cells in locations that are densely populated in order to provide additional network capacity, such as downtown areas and around heavily used traffic corridors. The small cell antennas are also sometimes deployed in areas that cannot be 50A-1 Ordinance to Repeal and Reenact Article X of SAMC Chapter 33 Telecommunications in the Public Right -of -Way August 21, 2018 Page 2 effectively served by a traditional macro cell. A small cell is not intended to replace macro cell sites but to supplement them. Wireless providers have already deployed many of these facilities under the existing ordinance, but have expressed a desire to deploy hundreds more of these antennas and associated equipment throughout the City. Although Chapter 33 of the City's municipal code regulates wireless installations in the public right-of-way, the ordinance is in need of an update to address the increased demand for deployments and changes in state and federal law that have occurred since Ordinance NS -2816 was adopted in 2011. Among other changes in state and federal law, Congress enacted the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act). Section 6409 of the Spectrum Act requires a local government to approve any "eligible facilities request" for a modification of an existing tower or base station that does not substantially change the physical dimensions of such facility. An implementing order adopted by the FCC in 2014 defines key terms in the statute, sets timeframes for the approval process, and creates a "deemed granted" remedy for failure to meet the timeframe. In 2015, the California Legislature adopted AB 57 (codified as Government Code 65964.1), which provides a "deemed approved" remedy for the failure to meet timelines for action on other types of wireless permit applications that are subject to "shot clocks" established by the FCC in orders released in 2009 and 2014. The ordinance has been modified to reflect these and other changes in state and federal law. With the help of the City's consultant, Magellan Advisors, staff from the City Attorney's Office, Information Technology Department, and the Public Works Agency have prepared an updated ordinance to regulate wireless telecommunications facilities in the public right-of-way. Staff reviewed a number of other cities' ordinances, including the Cities of San Francisco, Huntington Beach, Santa Monica, and Long Beach. Components of the proposed changes to the ordinance were presented to the Economic Development, Infrastructure, Budget & Technology Council Committee at its May 14, 2018, meeting. Staff has also coordinated with and received input from wireless telecommunication providers on the proposed set of regulations. The draft ordinance sets forth a streamlined procedure for applicants seeking permits for small, low -impact, aesthetically acceptable wireless facilities in the public right-of-way. Primary to the streamlining component is a notification radius reduction for small cell applications from 300 feet to 150 feet, and a reduction in public comment review period from 30 days to 20 days. Since 2014, over 25,000 notices to adjacent land owners and tenants have resulted in less than 30 comments, responses, or questions to staff. Other changes to the draft ordinance include revisions to the definitions, for consistency with federal and state requirements, consideration of newer technologies, and inclusion of provisions to restrict electric meters. The ordinance adds permit term limitations, revocation procedures, and a process for optional pre -submittal consultation with staff. To allow for greater flexibility moving forward, the draft ordinance also removes much of the design standards and site selection criteria from the code, which will now be contained within a Standards and Guidelines Policy to be approved and administered by the Executive Director of the Public Works Agency. 50A-2 Ordinance to Repeal and Reenact Article X of SAMC Chapter 33 Telecommunications in the Public Right -of -Way August 21, 2018 Page 3 The draft ordinance continues to specify the information to be submitted with an application for a wireless facility in the public right-of-way. The draft ordinance also allows for review of the analyses by a qualified radio frequency consultant. The application will also include photo simulations and a statement that the installation will comply with all applicable radio frequency emission standards. Ultimately, the draft ordinance provides the Public Works Agency with the ability to more effectively regulate wireless telecommunications facilities in the public right-of-way. Wireless telecommunications installations proposed to be placed outside of public street and alley right-of-way (such as within parks and on private property) will continue to require a permit administered by the Planning and Building Agency; that process will remain unchanged. This ordinance regulates the issuance of permits to place wireless facilities in the public rights-of- way. It does not authorize the use of City -owned infrastructure located in the public rights-of-way. In a future Request for Council Action, staff will recommend approval of a Master License Agreement, which will provide terms to allow providers to install small cell antennas on City - owned facilities, such as streetlights. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #3 — Economic Development, Objective #3 (promote a solutions -based customer focus in all efforts to facilitate development and investment in the community), Strategy C (explore opportunities to encourage a business - friendly environment within the city through the reduction of non-essential regulatory requirements and improved coordination between agencies for development review). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. There fs no fiscal impact associated with this action. K Fuad S. weiss, PE, PLS Executivf Director Public Wrrks Agency FSS/EWG/TH Exhibit: 1. Ordinance ad L Jacl iulla Chi f ethnology Innovations Officer Information Technology Department y' 1 I Imf 8/14/2018 ORDINANCE NO. NS -XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA REPEALING AND REENACTING IN ITS ENTIRETY ARTICLE X OF CHAPTER 33 OF THE SANTA ANA MUNICIPAL CODE REGARDING TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Santa Ana hereby finds, determines, and declares as follows. A. In 2011, the City of Santa Ana adopted Ordinance No. NS -2816 for the purpose of adding Article X to Chapter 33 of the Santa Ana Municipal Code to establish standards for the design, placement, permitting, and monitoring of telecommunications facilities in the public right-of-way. B. Article X of Chapter 33 was enacted at a time where the most traditional form of wireless installation was a "macro cell," the large communications towers that are commonly seen in the urban landscape. In the years following, a variety of new technologies have emerged that can use smaller facilities and cover smaller areas than traditional macro cells. These are commonly referred to as "small cells." C. Wireless providers increasingly use small cells to supplement their macro cells, for example by deploying them in areas that cannot be effectively served by a traditional macro cell, or by expanding and upgrading their network capacity to serve the rapidly growing number of wireless device users. Typically, a small cell antenna is attached to a streetlight or utility pole, or placed mid -span on wires between utility poles. Wireless providers often ptace-these- small cells in locations that are densely populated; such as downtown areas and around heavily used traffic corridors. D. Wireless providers have already deployed many of these facilities under the existing ordinance, but have expressed a desire to deploy hundreds more of these antennas and associated equipment throughout the City. Although Article X of Chapter 33 of the City's municipal code regulates wireless installations in the public right-of-way, it is in need of a comprehensive update to address the increased demand for deployments and changes in state and federal law that have occurred since Ordinance No. NS -2816 was adopted in 2011. E. Accordingly, Article X of Chapter 33 of the Santa Ana Municipal Code shall be updated by repealing and reenacting such article. By this update, the City seeks to establish reasonable and uniform standards and streamlined procedures for the approval and installation of small cell and similar wireless facilities in the public right-of-way in a Ordinance No. NS -XXX Page 1 of 21 manner that protects and promotes the public health, safety and welfare and is consistent with federal and state law. SECTION 2. Article X of Chapter 33 of the Santa Ana Municipal Code is hereby repealed in its entirety. SECTION 3. Article X of Chapter 33 of the Santa Ana Municipal Code is hereby reenacted in its entirety as follows: ARTICLE X. - WIRELESS FACILITIES IN THE PUBLIC RIGHT-OF-WAY Sec. 33-230. - Purpose and Intent. The City Council finds and determines that it is in the interest of the City of Santa Ana to establish a process that balances the need for Santa Ana residents to access wireless communications, the general welfare of Santa Ana residents, and the requirements of state and federal law, to guide applicants for wireless facilities within or along the public right-of-way. Accordingly, this Article is adopted: (a) To provide uniform standards for the community desired design, placement, permitting and monitoring of wireless facilities consistent with applicable state and federal requirements. (b) To manage the public right-of-way as to the time, place, and manner in which It is accessed. (c) To minimize the environmental and aesthetic impacts of wireless facility installations in the public right-of-way. (d) To preserve view corridors, to discourage visual blight and clutter, and to encourage aesthetic placement of wireless facilities. (e) To accommodate public and City use of the public right-of-way, so as to permit maintenance of wireless facilities, and to minimize disruption to -Vehicular traffic and pedestrian flow and bn-street parkirig. (f) To minimize unnecessary disruption of the public right-of-way by coordinating installations so as to effectively manage use of the public right-of-way. (g) To ensure the structural integrity, reliability, performance, safety, quality, ease of maintenance, and aesthetic integrity of the public right-of-way. (h) To ensure that similarly -situated public right-of-way users are treated in a competitively neutral and non-discriminatory manner while complying with applicable state and federal requirements. (i) To ensure compliance with all federal, state, county, and local laws. Q) To prevent hazardous conditions within and along the public right-of-way. Ordinance No. Ns -XXX Page 2 of 21 (k) To manage the long-term use of the public right-of-way. This Ordinance establishes standards for the siting, design, permitting, construction, operation, inspection, maintenance, repair, modification, removal and replacement of communications facilities in recognition of applicable state and federal law. Sec. 33-231. - Definitions. For the purpose of this Article, the following words or phrases are defined below: (a) "Accessory equipment" means any equipment serving or being used as part of a wireless facility that is not an antenna or a pole. This equipment includes, but is not limited to, utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets, storage sheds, shelters, vaults, or other structures. (b) "Agency" means the City's Public Works Agency. (c) "Antenna" means that part of a wireless facility designed to radiate or receive radio frequency signals. (d) "Base station" means the same as defined by the FCC in 47 C.F.R. § 1.40001(b)(1), as may be amended. (e) "Cell on Wheels" or "COW" means a portable self-contained wireless .facility that can be moved to a location and set up to provide wireless services on a temporary or emergency basis. A COW is normally vehicle -mounted and contains a.telescoping boom as the Antenna support structure. (f) "Concealment Elements" means any of the following: 1. Radio Frequency transparent screening. 2. Approved, specific colors. 3. Minimizing the size of the site. 4. Integrating -the installation -into -existing utility -Infrastructure. 5. Installing new infrastructure that matches existing infrastructure in the area surrounding the proposed Site. 6. Controlling the installation location. (g) "Director" means the Executive Director of the Public Works Agency or a designee. (h) "Distributed Antenna System" or "DAS" means a network of spatially separated antennas (sometimes called "nodes") connected to a common source (sometimes called a "hub") by a transport medium, such as fiber optic cable, that provide wireless service within a specific geographic area. This definition includes, without limitation, DAS owned by one entity and shared by multiple providers. Ordinance No. NS -XXX Page 3 of 21 50A-7 (i) "Eligible facilities request" means an application that qualifies for approval under the criteria set forth in Section 1455 of Title 47 of the United States Code and 47 C.F.R. § 1.40001, (j) "Eligible support structure" means "eligible support structure" as that term is defined by the FCC in 47 C.F.R. § 1.40001(b)(4), as may be amended. (k) "FCC" means the Federal Communications Commission. (1) "Guidelines" means Standards and Guidelines for Wireless Facilities in the Public Right -of -Way policy promulgated by the Director of Public Works pursuant to Section 33-234, as it may be amended from time to time. (m) "Laws" means any and all applicable federal, state and local ordinances, resolutions, regulations, administrative orders, or other legal requirements. (n) Parkway" means that area between the sidewalk and the curb of any street, and where there is sidewalk adjacent to the curb, that area between the sidewalk and the right-of-way line, and where there is no sidewalk, that area between the curb or edge of the roadway and the right-of-way line adjacent thereto. (o) "Person" means any individual, firm, company, partnership, corporation, entity, agency, or other organization. (p) "Pole" means a single shaft of wood, steel, concrete or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of this code and the Guidelines. (q) "Public right-of-way" or "PROW" or "right-of-way" means the area on, below, or above a City -owned or -controlled street or alley public right-of-way and the sidewalk and/or parkway adjacent thereto. (r) "Replacement- pole" means in connection with an existing pole; a pole that is installed in the same location or in the immediate vicinity of an existing pole that is removed. (s) "Roadway" means that portion of a public street improved, designed or ordinarily used for vehicular traffic. (t) "Routine maintenance" means ensuring that a wireless facility is kept in good operating condition. Routine maintenance includes, but is not limited to inspections and testing. (u) "Site" means the area in proximity to the structure and to other transmission equipment already deployed on the ground, as defined by the FCC in 47 C.F.R. § 1.40001(b)(6), or as may be amended. (v) "Substantial change" means the same as defined by the FCC in 47 C.F.R. § 1.40001(b)(7), as may be amended. Ordinance No. NS -XXX Page 4 of 21 (w) "Wireless facility' "facility' or "facilities" mean any fixed facility that transmits and/or receives electromagnetic waves using FCC -licensed or unlicensed spectrum. It includes, but is not limited to, antennas and/or other types of equipment for the transmission or receipt of such signals, poles, communications monopoles or similar structures supporting such equipment, related accessory equipment, and other accessory installations. (x) "Work" means all labor, materials, equipment, services, and all other things necessary for a person to install a wireless facility in the public right-of-way, Including without limitation any changes requested by the City, in accordance with this Article and all applicable laws and regulations. Sec. 33-232. - Permit Required. No person shall install or maintain any wireless facility which in whole or in part rests upon the public right-of-way without first obtaining a permit from the Director under this Article. Additional permits may still be required depending on the type of wireless facility and the scope of work required for installation. Sec. 33-233. - Siting Preferences. (a) To the extent possible, wireless facilities shall be located outside the public rights-of-way. (b) Whenever possible, wireless facilities shall not be located in public rights-of-way adjacent to property zoned or used for residential purposes. (c) Whenever possible, wireless facilities shall be located on existing poles or replacement poles rather than on new poles. (d) Wireless facilities should not be located immediately in front of, beside, or behind historic resources as recognized by the City pursuant to Chapter 30 of this Code. Sec. 33-234. - Director's Guidelines. (a) Each application for a wireless facility is subject to the most current Guidelines, which may be amended from time to time. The primary purpose of these Guidelines shall be to provide procedural and design guidance and specific design standards and requirements for project applicants proposing wireless facilities (categorized in different tiers) in the public right-of-way that are subject to the requirements of this Article. The Guidelines document is also intended for use and reference by City staff in reviewing and approving designs and verifying compliance with this Article. All such Guidelines will be publicly available and posted on the Public Works website. (b) To the extent not preempted by applicable laws, the Director may prescribe in the Guidelines additional standards covering the location, Ordinance No. NS -XXX Page 5 of 21 ' m • y size, and depth of excavations in public streets and sidewalks related to wireless facility installation, as the Director may deem necessary for the public safety and welfare. Where such guidelines are general in character and are designed to apply to all excavations of a certain type or nature, they shall be promulgated in writing showing the date of their enactment, and a copy thereof, duly certified to by the Director shall be kept on file where they may be made available for public inspection upon the demand of any person. All work performed under this Article shall be subject to such guidelines. Sec. 33.235. - Pre -Submittal Requests. The applicant may request a pre -application consultation with the City. This consultation is for the applicant to ask questions, receive guidance on specific requirements of this Article, and receive verbal feedback on specific elements to assist in the design of their site. Multiple proposal options maybe provided for the same location under one application. A pre -submittal application request is to be made on a City -approved form to the Public Works Agency and shall include any required fee as established by City Council resolution for each submittal. Once conceptual review comments have been sent to the applicant, the Public Works Agency and the applicant may communicate to address comments and resolve issues identified in advance of an application being submitted. When necessary, at the request of the applicant, city staff may conduct site visits with the applicant to address and/or resolve specific issues related to the site. The applicant may request a meeting with city staff to review and discuss conceptual review comments, subject to any applicable fees. Sec. 33.236. - Application Required. Before a permit is issued, a written application must be filed with the Agency, subject to the requirements of this Section and the Guidelines. (a) Where the applicant does not assert that the proposed facility is an eligible facilities request, the application shall include: 1. The name, address and telephone number of both the applicant and the owner of the wireless facility. 2. The name, address and telephone number of the responsible person whom the City may contact at any time concerning the wireless facility. 3. A copy of the applicant's authorization to construct the proposed facilities in the public rights-of-way (e.g., a certificate of public convenience and necessity or a wireless identification registration). 4. If the applicant's proposed facility involves installing a replacement structure (e.g., a pole) in the public right-of-way and attaching additional facilities, or installing a facility on a pole owned by a third party, the applicant shall also provide a signed copy of the license, lease, pole attachment agreement, or Ordinance No. NS -XXX Page 6 of 21 50A-10 whatever authorizations are required for the placement of the wireless facility at the location proposed, including proof that applicant is authorized by the owner of the structure to install and operate the proposed wireless facility on the structure. Such submissions need not disclose financial terms. 5. Where applicable, the pole number(s), address, and latitudellongitude GPS coordinates of the location of the pole or poles. 6. At the request of the Director, a photograph and model number of the wireless facility being proposed. 7. A project description letter containing: A. A list of all facilities proposed to be installed (including antennas, associated equipment, poles, power and fiber to the facility), along with the corresponding volume of each. B. The height of each, as measured from the ground. C. A description of the concealment elements associated with the wireless communication facility, including but not limited to painting and shielding. D. The materials that comprise the facilities. E. A description of any ground disturbance necessary to complete the proposed project. F. A description of the noise levels the facilities will emit. G. A description of any lighting to be installed along with the facilities. H. A description of any signage to be installed along with the facilities. I. A description of the security plan for the site, including an emergency contact, and a description of the emergency breaker switch. J. A description of three alternative sites that would also accommodate the proposed Facilities, and a brief explanation as to why -the proposed site was selected (Le., proximity to power source). 8. A coverage map indicating the area which will be served by the proposed wireless facility. 9. A construction plan and schedule, to include start and end dates and phasing, as required by the Agency. 10. Information regarding any additional locations where the applicant plans to install wireless facilities within five (5) years from the date of application submittal. In the event an Applicant states it does not know its construction plans for a five-year period, the Applicant must provide a declaration stating that fact and shall provide its construction plans as known in Applicant's management and engineering planning processes, which shall be for a reasonable period of time but in no event less than two (2) years. 11. Engineering certification demonstrating compliance with all existing Ordinance No. NS -XXX Page 7 of 21 50A-11 RF emission standards. 12. A non-refundable application and processing fee, in an amount established by resolution of the City Council to defray the City's costs to process the application and to inspect the facility. 13. Electronic plans (in .pdf file format and electronic GIS file format compatible with the City's geographic information system database) that include the following: A. A title sheet. B. A site plan, showing: I. The exact location and route requested for applicant's proposed facilities, including other improvements in the area. fl. If excavation is required, the plans must include the the location and depth of all overhead and underground public utility, cable, water, sewer drainage, fiber optic, and other facilities in the public right-of-way along the proposed route. iii. The location(s), if any, for interconnection with the facilities of any other parties. iv. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate. 14. Verification from a California licensed professional engineer certifying that the support structure involved in the deployment is structurally and mechanically capable of supporting the proposed mounted components of the wireless facility. 15. Detailed plans and design drawings of all facilities proposed (and where applicable including a detailed description of any existing wireless facilities and of the modifications that are proposed to be made to it), and the dimensions (including the volume) and specific location of the wireless facility and its elements, including but not liMited to any accessory equipment that will be ihsfalled. The description must include detail on any excavations and deployment outside the current site, including any physical, wireline, interconnections to other locations, noting existing wireline connections and new ones. 16. Photo simulations of the facility before and after installation (including any above -ground pedestals, vents, conduit and exposed cable). 17. For applications involving modifications of existing facilities, the applicant shall provide the original permit and approved plans for the existing facility and any associated authorizations (e.g., related to prior modification requests). 18. For applications involving new poles, or wireless facilities in underground utility areas, the applicant must include information to demonstrate that the facility is necessary to avoid prohibiting or Ordinance No. NS -XXX Page 8 of 21 50A-12 having the effect of prohibiting the provision of personal wireless services pursuant to the United States Telecommunications Act of 1996 (47 U.S.C. §332(c)(7)(13)(1)(II)). (b) Applications for eligible facilities requests shall include: 1. A project description letter containing: A. A list of all facilities proposed to be installed (including antennas, cabinets and other associated equipment, power and fiber to the facility), along with the corresponding volume of each. B. The height of each, as measured from the ground. C. A description of the concealment elements associated with the wireless facility, including but not limited to painting and shielding. D. The materials that comprise the facilities. E. A description of any ground disturbance necessary to complete the proposed project. F. A description of any deployment outside the public right-of- way necessary to complete the proposed project. 2. Detailed plans and design drawings of the proposed installation, including a detailed description of the existing wireless facility and of the modifications that are proposed to be made to the existing wireless facility; the exact location of the proposed facility; the dimensions (including the volume) and specific location of the wireless facility and its elements, including but not limited to any accessory equipment that will be installed. The description must include detail on any excavations and deployment outside the current site, including any physical, wireline, interconnections to other locations, noting existing wireline connections and new ones. 3. A copy of all approvals and/or -permits for -the tower or base station that is to be modified, and any subsequent modification applications and permits, even if denied, and of any required conditions (imposed by the City and/or third party) placed on the initial or subsequent permits. 4. A report signed by a California licensed professional engineer specializing in structural engineering, containing the following: A. In the case of an attached wireless facility, documentation of the ability of the structure to accept the antennas, the proposed method of affixing the antennas, and the precise point at which the antennas shall be mounted. Ordinance No. NS -XXX Page 9 of 21 50A-13 B. In the case of a wireless facility with a support structure (e.g. monopole), documentation that the structure is capable of supporting the antennas and complies with applicable laws and codes, as well as the structure's capacity for additional collocated antennas, and the precise point at which the antennas shall be mounted. Sec. 33-237. - Distributed Antenna System (DAS). Applications for wireless facilities comprising a DAS shall be submitted simultaneously and each Individual location within the system shall be processed and considered for approval separately. Permitting fees will be assessed per application. Each location will be evaluated and must comply with the installation design guidelines as detailed in the Guidelines. Sec. 33-238. - Fees. (a) Processing Fees. The fee for any permit or application required by this Article shall be set by the City Council by resolution from time to time. All fees must be paid in full before any permit shall be issued from the City. Application processing fees must be paid at the time that the application is submitted and are non-refundable. These fees are for permit processing only and are in addition to any other applicable fee or any separate payments that may be required for rent of City infrastructure. (b) Independent Consultant. As reasonably required, the Applicant may be required to provide an authorization waiver to permit the City to hire an independent qualified consultant to evaluate any technical aspect of the proposed telecommunication facility. Any authorization for this purpose shall include an agreement by the applicant to reimburse the City for all reasonable costs associated with the consultation. Sec. 33-239. - Notice of Application Submittal. (a) Excluding applications for eligible facility requests and Tier 1 facilities (as defined by the Guidelines), within ten (10) business days of acceptance of a complete application, tKe'applicant shall give -or cause notice of the submission to be given to certain members of the community, as specified below. The notice must be approved by the City. The notice shall provide: 1. A date of notice. 2. A brief description of the proposed wireless facility, including all proposed accessory equipment. 3. A City contact for inquiries and instructions to send any comments to a designated City address and/or email address, and a statement that the City will accept comments for twenty days following the date of notice. 4. Photo simulations of the proposed facility before and after installation (include any vents, conduit and exposed cable). Ordinance No. NS -XXX Page 10 of 21 50A-14 5. A radius map indicating: A. For Tier 2 facilities, one -hundred and fifty (150) feet of the exterior boundaries of the proposed installation site. B. For Tier 3 facilities, three -hundred (300) feet of the exterior boundaries of the proposed installation site. (b) For purposes of the notice requirements below, the City will provide to the Applicant a list of names and addresses of all property owners within five (5) business days, as shown on the latest assessment roll of the county assessor. 1. For applications for Tier 2 facilities (as defined by the Guidelines), the applicant shall provide notice by: A. Mailing notices to property owners located in residential zones and within one -hundred and fifty (150) feet of the exterior boundaries of the proposed installation site. B. Mailing notices to any neighborhood association representing residential property located within one - hundred and fifty (150) feet of the exterior boundaries of the proposed installation site. C. Posting a copy of the notice at the proposed installation site on the existing utility pole, street light or similar structure to be modified or replaced, or as close thereto as reasonably possible. 2. For applications, for Tier 3 facilities (as defined by the Guidelines), the same notice requirements shall apply, except that notice shall be delivered to the persons listed above within a three -hundred (300) foot radius of the proposed site. (c) Written comments from members of the public received by the Director shall be --considered as part of the staff -review. Comments shall be accepted for twenty (20) days following the date the notice is provided. (d) The applicant shall work cooperatively with the City to consider or otherwise respond to comments received by the Director. Sec. 33-240. Permit Issuance. (a) A permit for a wireless facility shall be granted, denied, or conditionally granted by the Director. In the event that an application is deemed granted by rule of law, all conditions and design guidelines as required by this ordinance for the facility are still applicable and required for the facility. Ordinance No. NS -XXX Page 11 of 21 5OA-15 (b) For an eligible facilities request, the Director shall issue a permit if the Director finds that the proposed facility qualifies as an eligible facilities request and does not represent a substantial change. (c) For any facility other than an eligible facilities request, the Director shall issue a permit if the Director makes all of the following findings: 1. The proposed facility conforms to the Guidelines, including any volumetric limits, design criterion, and location restrictions detailed therein. 2. The proposed wireless facility is visually compatible with the surrounding neighborhoods. 3. The applicant has demonstrated that the installation will not substantially interfere with the use of the public right-of-way and existing subterranean infrastructure, including interference with the flow of pedestrian or vehicular traffic, the ingress or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near the proposed site of the wireless facility. 4. The applicant has demonstrated that the wireless facility will not endanger or is not reasonably likely to endanger the safety of persons or property. 5. The proposed wireless facility complies with all applicable regulations of the FCC. 6. The applicant has coordinated the final siting location of the facility with the Director. 7. The applicant has posted a performance bond or other security In an amount rationally related to the cost of removal. 8. All notification requirements for the prof osed facility have been met. (d) In granting or denying an application, the Director shall make a written finding which shall specify all facts relied upon in rendering his decision. A copy of the decision shall be filed with the Public Works Agency and mailed to the applicant and to any person who has submitted a comment on the proposed application pursuant to Section 33-239. (e) Permits are issued fora period of ten (10) years from the date issued. Sec. 33-241. - Renewal. To extend a wireless facility permit for an additional five (5) year period, the applicant shall provide proof that it continues to have the legal authority to occupy and use the PROW for the purpose set forth in its permit, that its site as it exists at the time Ordinance No. NS -XXX Page 12 of 21 50A-16 of the renewal is in full compliance with the applicable City permits issued for the site, and pay the fees for renewal. Additionally, the applicant must provide an affidavit confirming that the site is still in compliance with the FCC regulations. Additional procedural and substantive requirements may be detailed in the Guidelines. Failure to submit such an affidavit or proof of legal authority to occupy or use the PROW, or to meet any additional requirements regarding renewal specified in the Guidelines, shall be grounds for non -renewal of the permit. The burden is on the applicant to demonstrate that the site complies with the requirements herein. Sec. 33.242. - Appeal. Any interested person may appeal the decision of the Director pursuant to Chapter 3 of this Code. Sec. 33-243. - Revocation. Any wireless facility permit may be revoked or modified for cause in accordance with the provisions of this Section. (a) Revocation proceedings may be initiated by the Director. (b) Public notice of the hearing shall be given. (c) After conducting a duly -noticed public hearing, the Director or designee shall act on the proposed revocation. (d) Required Findings. The Director or designee may revoke or modify the permit if the Director makes any of the following findings: 1. The applicant obtained the approval by means of fraud or misrepresentation of a material fact. 2. The applicant substantially expanded or altered the use or structure beyond what is set forth in the permit or substantially changed the character of the facility. 3. The facility has not been utilized for six (6) months or more. 4. Failure to comply with any condition of a permit issued. 5. Failure to comply with this Article. 6. Failure to comply with the Guidelines. 7. A substantive change of law affecting to the applicant's rights to occupy or use the PROW or the City's ability to impose regulations relating to such occupation or use. B. A facility's interference with a City project. 9. A facility's interference with vehicular or pedestrian use of the PROW. 10. Failure to make a safe and timely restoration of the PROW or failure to address damage or disrepair with respect to the wireless facility and/or its supporting structure. Ordinance No. NS -XXX Page 13 of 21 50A-17 11. Circumstances arise under which failure to revoke the permit and remove the facility would result in hazardous or dangerous conditions, or otherwise compromise the safety of the PROW. (e) Notice of Action. A written determination of revocation shall be mailed to the applicant within ten (10) days of such determination. (f) An applicant whose permit has been revoked may have the revocation reviewed, upon written appeal as follows: 1. Within fourteen (14) days of the revocation, a written appeal shall be filed with the Director. The appeal must contain a statement listing the reasons why the applicant believes that the revocation should be reviewed. The Director shall render a decision within twenty-one (21) days of receipt of the statement described herein. 2. If the Director denies the appeal, the permiftee may file a written notice of appeal with the City Council within twenty-one (21) days of notification of the Director's denial. The appeal to the City Council must contain a statement of any significant factors and/or hardships as well as alternatives explored, and a response to the findings of the Director that resulted in the denial. The appeal shall be conducted in accordance with Chapter 3 of this Code. Sec. 33-244. - Site Selection Guidelines and Criteria. (a) The Director may authorize new poles within the public rights-of-way, or wireless facilities in underground utility areas, only with a finding that such new pole or wireless facility, as applicable, is necessary to avoid prohibiting or having the effect of prohibiting the provision of personal wireless services pursuant to the United States Telecommunications Act of 1996 (47 U.S.C. §332(c)(7)(B)(i)(II)). (b) Traffic Obstruction. The placement of the facility shall not permanently impede vehicular or pedestrian traffic flow, nor shall such installation Violate siting regufatioris imposed -by the Califorhia Public Utilities Commission. (c) No modification to above -ground or at -grade facilities, including those related to size, color and shape of the housing, may be made by the applicant without first having obtained approval of the Director. Sec. 33-245. - Visual Impact Guidelines. (a) Unobtrusive Design. Wireless facilities shall be designed to be as visually unobtrusive as feasible. Colors and designs must be visually neutral, integrated and compatible with surrounding buildings and/or uses in the area. Facilities shall be sited to avoid or minimize obstruction of views from adjacent properties and otherwise preserve the aesthetic integrity of the public right-of-way. Ordinance No. NS -XXX Page 14 of 21 50A-18 (b) No component of a wireless facility shall extend seven (7) feet beyond the top of a pole. However, no facility located within one -hundred and forty (140) feet of a residential property shall exceed thirty-five (35) feet in height. Additionally, no facility shall exceed sixty (60) feet in height from the ground level as measured from the nearest street curb. The Director may waive these requirements if necessary to accommodate General Order 95 of the California Public Utilities Commission. (c) No facility shall be illuminated unless specifically required by the Federal Aviation Administration or other governmental agency for security or clearance purposes. (d) Signs and Advertising. No advertising signage or identifying logos shall be displayed on any facility except for small identification, address, warnings, and other similar information plates. Such information plates shall be identified in the application and shall be subject to approval by the Director. Sec. 33-246. - Noise. Wireless facilities and all accessory equipment and transmission equipment must comply with all noise regulations pursuant to Article VI of Chapter 18 of this Code. Sec. 33-247. - Public Safety Guidelines. (a) Arterial Highway Pedestrian Passage. In public rights-of-way that are designated in the Circulation Element of the City's General Pian as "arterial" streets or highways, and which have an existing sidewalk, the facility should be located on the sidewalk or parkway such that there is a minimum of six feet (6') of unobstructed distance between the edge of the facility and any private property, in order to provide sufficient clearance for pedestrians and wheelchairs. If the paved sidewalk is less than six feet (6') wide, the applicant may propose to construct additional sidewalk to- meet -this requirement; provided, however, that a sufficient length of sidewalk shall be constructed to meet the six-foot (6') standard described in this subsection. The facility shall be installed in the public right-of-way with a minimum of eighteen inches (18") of unobstructed distance maintained between the edge of the facility and the edge of the curb face. (b) Non -Arterial Highway Pedestrian Passage. In public rights-of-way that are not designated in the Circulation Element of the City's General Plan as "arterial" streets or highways, and which have an existing sidewalk, the facility shall be located on the sidewalk or parkway such that there is a minimum four feet (4') unobstructed distance between the edge of the facility and any private property line, in order to provide sufficient clearance for pedestrians and wheelchairs. If the paved sidewalk is less than four feet (4') wide, the applicant may propose to construct additional sidewalk to meet this requirement if possible; provided, however, that a Ordinance No. NS -XXX Page 15 of 21 50A-19 sufficient length of sidewalk shall be constructed to leave no discontinuities in the new path of access. The facility shall be installed in the public right-of-way with a minimum of eighteen inches (18") of unobstructed distance maintained between the edge of the facility and the edge of the curb face. (c) Unpaved Sidewalks. In public rights-of-way with no existing sidewalk pavement, the facility shall be located in the parkway such that there is a minimum four feet (4') unobstructed distance between the edge of the facility and any private property line, in order to provide sufficient clearance for pedestrians and wheelchairs by one of the following methods: 1. Where there is no curb face, the facility shall be installed in the public right-of-way with a minimum of four feet (4') of unobstructed distance between the edge of the facility and the edge of the paved street. 2. Where there is a curb face, the facility shall be installed in the public right-of-way with a minimum of eighteen inches (18") of unobstructed distance between the edge of the facility and the edge of the curb face. (d) Vehicular Line of Sight and Sight Distance. The facility shall not be located in the "visibility triangle," defined as that portion of both public and private property located at any corner and bounded by the curb line or edge of roadway of the intersecting streets and a line joining the points on the curb or edge of the roadway of the intersection streets forty-five feet (45') from the.point of intersection of the extended curb lines or edges of roadway. The facility shall not be located adjacent to street intersections, driveways and alley intersections where they would reduce the sight distance for existing vehicular traffic to less than the distance required by City standards on file with the Public Works Agency. Sec. 33-248.'- Cellon Wheels (COW). (a) The Director of Public Works will direct the applicant as to what permit(s) are required to place a COW in the PROW, on a case-by-case basis. (b) The setup location requested for the COW will be reviewed and at the discretion of the Director or designee may be modified to ensure public health and safety. (c) The duration of a permit for a COW will be no longer than is necessary to establish the network and provide the temporary coverage required by the event or emergency. (d) At the discretion of the Director or his or her designee, the permit may be revoked or modified when in the best interest of the City. Ordinance No. NS -XXX Page 16 of 21 50A-20 Sec. 33-249. - Maintenance Standards. All wireless facilities subject to this section shall comply with the following standards: (a) Inspection and Reporting. The owner of the facility when directed by the City, must perform an inspection of the facility and submit a report to the Public Works Agency. Additionally, as the City performs maintenance on City infrastructure, additional maintenance concerns regarding the facility may be identified. These will be reported to the owner of the facility. The City shall give the applicant thirty (30) days to correct the identified maintenance concerns after which the City reserves the right to take any action it deems necessary to rectify the issue, which could Include revocation of the permit, and applicant shall reimburse the City for all expenses associated with that ameliorative action. The burden is on the applicant to demonstrate that the proposed facility complies with the requirements herein and the Guidelines. (b) Safety and Maintenance. The applicant 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 site plans, the Guidelines, this Section, and all conditions in the permit. The applicant shall keep the site area free from all litter and debris at all times. The applicant, at no cost to the City, shall remove and remediate any graffiti or other vandalism at the site within forty-eight (48) hours after the applicant receives notice or otherwise becomes aware that such graffiti or other vandalism occurred. The applicant shall provide on-going maintenance of its facilities, including ensuring the facilities are reasonably free of: 1. General dirt and grease. 2. Chipped, faded, peeling and cracked paint. 3. Rust and corrosion. 4. Cracks, dents, blemishes and discoloration. 5. Graffiti, bills, stickers, advertisements, etc. 6. Broken and misshapen structural parts. (c) If an applicant discontinues use or abandons any facility for a period of six (6) months or more, the applicant shall immediately notify the Director, remove the equipment and restore the site to the condition it existed prior to installation of the facility in a manner approved by the Director. (d) Facilities shall be replaced, in kind, within forty-five (45) days, if routine or emergency maintenance is not sufficient to return the equipment to the condition at the time of installation. Ordinance No. NS -XXX Page 17 of 21 50A-21 Sec. 33.250. - Compliance with Applicable Law and Regulations. This Article is not intended to be the exclusive means of regulating installation of wireless facilities in the public rights-of-way and nothing herein is intended to waive any other applicable City requirements, including but not limited to building permit, storm water runoff, business license, excavation and undergrounding regulations. The applicant shall obtain all permits, licenses, and similar authorizations that are required by other governmental entities for the installation of its wireless facilities. The applicant must also comply with all applicable statutes, ordinances, rules, regulations, orders, and decisions issued by any federal, state or local governmental body or agency, including without limitation those issued by the California Public Utilities Commission and the Federal Communications Commission. Sec. 33-251. - Nonexclusive Use of Public Rights -of -Way. All permits to construct or place wireless facilities in the public right-of-way shall be nonexclusive. The granting of a permit under this Article by the City does not provide any permittee with an exclusive use of the public right-of-way. All facilities permitted by this Article shall, upon the reasonable demand of the Director, be relocated if required by the City to avoid potential conflicts with a proper governmental use of a street, alley, sidewalk or other public place. All expenses incurred in relocating shall be paid by the applicant. Sec. 33-252. - Submittals. Prior to the issuance of any permit, each Applicant shall provide the Agency with evidence that it has obtained all applicable business licenses, state permits, and other licenses, as well as insurance in an amount and form specified by the Agency. Sec. 33-253. - Indemnity; Insurance. (a) Asa condition ofpermitissuance-under this Article, each applicant shall: Indemnify and hold harmless and defend the City of Santa Ana, its officers and employees from and against any and all suits, actions, judgments, losses, costs, demands, claims, expenses (including attorney's fees), damages, and liabilities of every kind for any and all claims for damage to property, or injury to, or death of persons arising out of or resulting from the issuance of the permit or the placement of the facility, except to the extent any damage or injury is due to the negligence or willful misconduct of the City, its officers or employees. Obtain and file with the Clerk of the Council, and thereafter maintain during the term of any such permit, certificates evidencing Ordinance No. NS -XXX Page 18 of 21 50A-22 commercial general liability Insurance policy or policies, approved as to form by the City, issued by an insurance company or companies authorized to do business in the State of California. The City of Santa Ana, its officers and employees shall be named as additional insureds on said policy or policies. Unless the Guidelines specify otherwise, the policy limits of said insurance policy or policies shall be not less than one million dollars ($1,000,000.00) combined single limit for both bodily injury and property damage, or equivalent. Said policy or policies shall also contain a provision that no termination, cancellation, or change of coverage of insured or additional insured shall be effective until after twenty (20) days' notice thereof has been given in writing to the Clerk of the Council. (b) Applicants who self -insure shall so state and attest in writing in the Application, which self-insurance in an amount equal to the amount required by this Article or the Guidelines, whichever is higher, shall be subject to approval by the City. Sec. 33-254. - Coordination with other Projects In Public Rights -Of -Way. To the maximum extent possible and as permitted by law, an applicant shall design and schedule its Work so as to coordinate its Work with other persons installing, constructing, or maintaining wireless facilities and other infrastructure in the public right-of-way and with the City. Sec. 33-255. - Provisions for Underground Utility Districts. If a wireless facility is placed on a utility pole or other structure that becomes an underground utility district, adopted by resolution of the City Council, the wireless facility must be relocated to another structure at the owner's expense. Relocation of the wireless facility is subject to this code. Sec. 33-256. - Protection of Urban Forest. The -applicant may- be. required. to .retain,at its own cost, a certified -arborist -to advise the applicant's contractor doing underground work in the public right-of-way as to appropriate locations for underground vaults, conduits and other equipment and root pruning techniques, if needed, so as to ensure minimal impact to existing trees and other landscaping materials that are a part of the City's urban forest. The applicant's arborist shall coordinate their work with city staff. Sec. 33-257. - Non -Compliance; No Waivers. No permittee shall be excused from complying with any of the provisions of this Article by any failure of the City on any one or more occasions to seek, or insist upon, compliance with any requirements or provisions of this Code. Regardless of the City's failure to seek compliance on any occasion, such action shall not be considered a waiver of any requirements of this Code. Ordinance No. NS -XXX Page 19 of 21 50A-23 Sec. 33-258. - Future Changes in the Law. The City's rights under this Article are coextensive with the City's rights under state law with regard to the use of the public right-of-way by telephone corporations (as defined by the Public Utilities Code). If future changes to state or federal law authorize the City to regulate telephone corporation activity within the City and the public rights- of-way to a greater degree than is now authorized by this Article, nothing in this Article will be deemed to limit, restrict in any way, or to modify the City's exercise of that regulatory authority. SECTION 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentence, clauses, phrases, or portions be declared invalid or unconstitutional. SECTION 5. Neither the adoption of this ordinance nor the repeal hereby of any ordinance shall in any manner affect the prosecution for violation of ordinances, which violations were committed prior to the effective date hereof, nor be construed as affecting any of the provisions of such ordinance relating to the collection of any such license or penalty or the penal provision applicable to any violation thereof, nor to affect the validity of any bond or cash deposit in lieu thereof, required to be posted, filed or deposited pursuant to any ordinance and all rights and obligations thereunder appertaining shall continue in full force and effect. SECTION 6. This ordinance shall become effective thirty (30) days after its adoption. SECTION 7. The Clerk of the Council shall certify the adoption of this ordinance and shall cause the same to be published as required by law. ADOPTED this day of 2018. Miguel A. Pulido Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By: QtL 5V - J M. Funk Assistant City Attorney Ordinance No. NS -XXX Page 20 of 21 50A-24 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS -XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on , and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana 50A-25 Ordinance No. NS -XXX Page 21 of 21 50A-26