*Code reviser’s note: Ord. 1123 adds this section through SMC 17.130.305 as SMC 17.130.290, 17.130.310 and 17.130.300, respectively. We have renumbered them to avoid duplication of numbering and for continuity.
A. Purpose. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, codified in 47 U.S.C. Section 1455(a), generally requires that State and local governments “may not deny, and shall approve” requests to collocate, remove or replace transmission equipment at an existing tower or base station. Federal Communication Commission regulations interpret this statute and create procedural rules for local review, which generally preempt certain subjective land-use regulations, limit permit application content requirements and provide the applicant with a potential “deemed granted” remedy when the State or local government fails to approve or deny the request within 60 days after submittal (accounting for any tolling periods). Moreover, whereas Section 704 of the Telecommunications Act of 1996, Pub. L. 104-104, codified in 47 U.S.C. Section 332, applies to only “personal wireless service facilities” (e.g., cellular telephone towers and equipment), Section 6409(a) applies to all “wireless” facilities licensed or authorized by the FCC (e.g., cellular, Wi-Fi, satellite, microwave backhaul, etc.).
The overlap between wireless deployments covered under Section 6409(a) and other wireless deployments, combined with the different substantive and procedural rules applicable to such deployments, creates a potential for confusion that harms the public interest in both efficient wireless facilities deployment and carefully planned community development in accordance with local values. A separate permit application and review process specifically designed for compliance with Section 6409(a) contained in a section devoted to Section 6409(a) will mitigate such potential confusion, streamline local review and preserve the City’s land-use authority to maximum extent possible.
C. Approval Required. Any request to collocate, replace or remove transmission equipment at an existing wireless tower or base station submitted with a written request for a Section 6409(a) approval shall be subject to the Planning Director’s approval, conditional approval or denial without prejudice pursuant to the standards and procedures contained in this chapter.
D. Other Regulatory Approvals. No collocation or modification approved under any Section 6409(a) approval may occur unless the applicant also obtains all other applicable permits or regulatory approvals from the City and State or Federal agencies. Furthermore, any Section 6409(a) approval granted under this chapter shall remain subject to any and all lawful conditions or requirements associated with such other permits or regulatory approvals from the City and State or Federal agencies.
E. Application Requirement. The City shall not approve any wireless facility subject to this chapter except upon a duly filed application consistent with this section and any other written rules the City or the Planning Director may establish from time to time. An application must include the information required by SMC 17.130.070 and the following additional information:
1. A title report prepared within the six months prior to the application filing date in order for the City to verify the property owner’s identity. If the applicant does not own the subject property, the application must include a written authorization signed by the property owner that empowers the applicant to file the application and perform all wireless facility construction, installation, operation and maintenance to the extent described in the application.
2. A written statement that explains in plain factual detail whether and why Section 6409(a) and the related FCC regulations at 47 CFR Section 1.40001 et seq. require approval for the specific project. A complete written narrative analysis will state the applicable standard and all the facts that allow the City to conclude the standard has been met. Bare conclusions not factually supported do not constitute a complete written analysis. As part of this written statement the applicant must also include (a) whether and why the support structure qualifies as an existing tower or existing base station; and (b) whether and why the proposed collocation or modification does not cause a substantial change in height, width, excavation, equipment cabinets, concealment or permit compliance.
F. Procedures for a Duly Filed Application. The City shall not review any application unless duly filed in accordance with this section, as follows:
1. Pre-Submittal Conference. Before application submittal, applicants must schedule and attend a pre-application meeting with the Planning Director for all proposed modifications submitted for approval pursuant to Section 6409(a). The pre-submittal conference is intended to streamline the review process through informal discussion that includes, without limitation, the appropriate project classification, including whether the project qualifies for Section 6409(a); any latent issues in connection with the existing tower or base station; potential concealment issues (if applicable); coordination with other City departments responsible for application review; and application completeness issues. To mitigate unnecessary delays due to application incompleteness, applicants are encouraged (but not required) to bring any draft applications or other materials so that City staff may provide informal feedback about whether such applications or other materials may be incomplete or unacceptable. The Planning Director may, in the Planning Director’s discretion, grant a written exemption to the submittal appointment under subsection (F)(2) of this section or for a specific requirement for a complete application to any applicant who (a) schedules, attends and fully participates in any pre-submittal conference and (b) shows to the Planning Director’s satisfaction that such specific requirement duplicates information already provided in other materials to be submitted or is otherwise unnecessary to the City’s review under facts and circumstances in that particular case. Any written exemption will be limited to the project discussed at the pre-submittal conference and will not be extended to any other project.
2. Submittal Appointment. All applications must be filed with the City at a pre-scheduled appointment. Applicants may generally submit one application per appointment but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. Any application received without an appointment, whether delivered in person or through any other means, will not be considered duly filed unless the applicant received a written exemption from the Planning Director at a pre-submittal conference.
3. Appointment Scheduling Procedures. For any event in the submittal process that requires an appointment, applicants must submit a written request to the Planning Director. The Planning Director shall endeavor to provide applicants with an appointment as soon as reasonably feasible and within five business days after a written request is received.
4. Applications Deemed Withdrawn. To promote efficient review and timely decisions, an application will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the City within 90 calendar days after the City deems the application incomplete in a written notice to the applicant. The Planning Director may, in the Planning Director’s discretion, grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the ninetieth day that shows good cause to grant the extension. Delays due to circumstances outside the applicant’s reasonable control will be considered good cause to grant the extension.
5. Departmental Forms, Rules and Other Regulations. The City Council authorizes the Planning Director to develop and publish permit application forms, checklists, informational handouts and other related materials that the Planning Director finds necessary, appropriate or useful for processing requests for Section 6409(a) approvals. Without further authorization from the City Council, the Planning Director may from time to time update and alter any such permit application forms, checklists, informational handouts and other related materials as the Planning Director deems necessary, appropriate or useful to respond to regulatory, technological or other changes related to this chapter. The City Council authorizes the Planning Director to establish other reasonable rules and regulations, which may include without limitation regular hours for appointments with applicants, as the Planning Director deems necessary or appropriate to organize, document and manage the application intake process.
G. Administrative Review – Decision Notices. The Planning Director shall administratively review an application for a Section 6409(a) approval and act on such an application without prior notice or a public hearing. Within five working days after the Planning Director conditionally approves or denies an application submitted for Section 6409(a) approval or before the FCC timeframe for review expires (whichever occurs first), the Planning Director shall send a written notice to the applicant. In the event that the Planning Director determines that an application submitted for approval pursuant to Section 6409(a) does not qualify for approval, the Planning Director will send written notice to the applicant that includes the reasons to support the review authority’s decision and states that the application will be automatically denied without prejudice on the sixtieth day after the date the application was filed unless the applicant withdraws the application.
H. Required Findings for Section 6409(a) Approval. The Planning Director may approve or conditionally approve an application submitted for Section 6409(a) approval when the Planning Director finds that the proposed project:
2. Does not substantially change the physical dimensions of the existing wireless tower or base station.
I. Criteria for Denial Without Prejudice. Notwithstanding any other provisions in this chapter, and consistent with all applicable Federal laws and regulations, the Planning Director may deny without prejudice an application submitted for approval pursuant to Section 6409(a) when it finds that the proposed project:
1. Does not satisfy the criteria for approval;
2. Violates any legally enforceable standard or permit condition reasonably related to public health and safety then in effect; or
3. Involves the replacement of the entire support structure.
J. Conditional Section 6409(a) Approvals. Subject to any applicable limitations in Federal or State law, nothing in this chapter is intended to limit the City’s authority to conditionally approve an application for a Section 6409(a) approval to protect and promote the public health, safety and welfare.
K. Appeals. Notwithstanding any provision of the SMC to the contrary, including but not limited to Chapter 17.455 SMC and any other section of this chapter, an applicant may appeal a decision by the Planning Director to deny without prejudice a Section 6409(a) application. The appeal must be filed within 10 days from the Planning Director’s decision. The appeal must state in plain terms the grounds for reversal and the facts that support those grounds. The City Manager shall serve as the appellate authority for all appeals of all actions of the Planning Director taken pursuant to this section. The City shall provide notice for an administrative hearing by the City Manager. The City Manager shall limit its review to whether the project should be approved or denied in accordance with the provisions in subsections H and I of this section. The decision of the City Manager shall be final and not subject to any further administrative appeals.
L. Standard Conditions of Approval. In addition to all other conditions adopted by the Planning Director, all Section 6409(a) approvals, whether approved by the Planning Director or deemed approved by the operation of law, shall be automatically subject to the following conditions in this section; provided, however, that the Planning Director shall have discretion to modify or amend these conditions on a case-by-case basis as may be necessary or appropriate under the circumstances:
1. Approved Plans. Before the permittee submits any application for a building permit or other permits required by the SMC, the permittee must incorporate the wireless telecommunications facility permit granted under this section, all conditions associated with the wireless telecommunications facility permit and the approved plans and any photo simulations (the “Approved Plans”) into the project plans. The permittee must construct, install and operate the wireless telecommunications facility in strict compliance with the Approved Plans. The permittee shall submit an as-built drawing within 90 days after installation of the facility.
2. Permit Term. The City’s grant or grant by operation of law of a Section 6409(a) approval constitutes a Federally mandated modification to the underlying permit or other prior regulatory authorization for the subject tower or base station. The City’s grant or grant by operation of law of a Section 6409(a) approval will not extend the permit term, if any, for any conditional use permit, or other underlying prior regulatory authorization. Accordingly, the term for a Section 6409(a) approval shall be coterminous with the underlying permit or other prior regulatory authorization for the subject tower or base station.
3. Accelerated Permit Terms Due to Invalidation. In the event that any court of competent jurisdiction invalidates any portion of Section 6409(a) or any FCC rule that interprets Section 6409(a) such that Federal law would not mandate approval for any Section 6409(a) approval, such 6409(a) approvals shall automatically expire one year from the effective date of the judicial order, unless the decision would not authorize accelerated termination of previously approved Section 6409(a) approvals or the Planning Director grants an extension upon written request from the permittee that shows good cause for the extension, which includes without limitation extreme financial hardship. Notwithstanding anything in the previous sentence to the contrary, the Planning Director may not grant a permanent exemption or indefinite extension. A permittee shall not be required to remove its improvements approved under the invalidated Section 6409(a) approval when it has applied for a conditional use permit for those improvements before the one-year period ends.
4. No Waiver of Standing. The City’s grant or grant by operation of law of a Section 6409(a) approval does not waive, and shall not be construed to waive, any standing by the City to challenge Section 6409(a), any FCC rules that interpret Section 6409(a) or any Section 6409(a) approval.
5. Build-Out Period. The Section 6409(a) approval will automatically expire one year from the issuance date unless the permittee obtains all other permits and approvals required to install, construct and operate the approved wireless facility, which includes without limitation any permits or approvals required by any Federal, State or local public agencies with jurisdiction over the subject property, the wireless facility or its use. The Planning Director may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension submitted at least 30 days prior to the automatic expiration date in this condition. Any further extensions may be granted by the Planning Commission.
6. Maintenance Obligations – Vandalism. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the Approved Plans and all conditions in this Section 6409(a) approval. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no cost to the City, shall remove and remediate any graffiti or other vandalism at the site within 48 hours after the permittee receives notice or otherwise becomes aware that such graffiti or other vandalism occurred.
7. Compliance with Laws. The permittee shall maintain compliance at all times with all Federal, State and local statutes, regulations, orders or other rules that carry the force of law (“laws”) applicable to the permittee, the subject property, the wireless facility or any use or activities in connection with the use authorized in this Section 6409(a) approval. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee’s obligations to maintain compliance with all laws.
8. Adverse Impacts on Other Properties. The permittee shall use all reasonable efforts to avoid any and all undue or unnecessary adverse impacts on nearby properties that may arise from the permittee’s construction, installation, operation, modification, maintenance, repair, removal or other activities at the site. The permittee shall not perform or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines on any day and at any time prohibited under the SMC. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons, or any work during an emergency declared by the City. The Planning Director may issue a stop work order for any work that violates this condition.
9. Noise Complaints. The permittee shall conduct all activities on the site in compliance with the noise standards in the SMC. In the event that any person files a noise complaint and the City verifies that such complaint is valid, the permittee must remedy the violation within 10 days after notice from the City, which may include a demonstration that the permittee has amended its operational guidelines in situations where the violation arises from the permittee’s personnel rather than the permittee’s equipment.
10. Inspections – Emergencies. The permittee expressly acknowledges and agrees that the City or its designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the City or its designee may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disable or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to property or persons. The permittee will be permitted to supervise the City or its designee while such inspection or emergency access occurs.
11. Contact Information. The permittee shall furnish the City with accurate and up-to-date contact information for a person responsible for the wireless facility, which includes without limitation such person’s full name, title, direct telephone number, facsimile number, mailing address and email address. The permittee shall keep such contact information up-to-date at all times.
12. Indemnification. The permittee and, if applicable, the property owner upon which the wireless facility is installed shall defend, indemnify and hold harmless the City, its agents, officers, officials, employees and volunteers from any and all (a) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs and other actions or proceedings (“claims”) brought against the City or its agents, officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside, void or annul the City’s approval of this Section 6409(a) approval, and (b) other claims of any kind or form, whether for personal injury, death or property damage, that arise from or in connection with the permittee’s or its agents’, directors’, officers’, employees’, contractors’, subcontractors’, licensees’, or customers’ acts or omissions in connection with this Section 6409(a) approval or the wireless facility. In the event the City becomes aware of any claims, the City will use best efforts to promptly notify the permittee and the private property owner and shall reasonably cooperate in the defense. The permittee expressly acknowledges and agrees that the City shall have the right to approve, which approval shall not be unreasonably withheld, the legal counsel providing the City’s defense, and the property owner or permittee (as applicable) shall promptly reimburse City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. The permittee expressly acknowledges and agrees that the permittee’s indemnification obligations under this condition are a material consideration that motivates the City to approve this Section 6409(a) approval, and that such indemnification obligations will survive the expiration or revocation of this Section 6409(a) approval.
13. Performance Bond. Before the City issues any construction permit in connection with the wireless facility, the permittee shall post a performance bond from a surety and in a form acceptable to the City Manager in an amount equal to or greater than a written estimate from a qualified contractor with experience in wireless facilities removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code Section 65964(a), the City Manager shall take into consideration information provided by the permittee regarding the cost to remove the wireless facility.
14. Record Retention. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals issued in connection with the wireless facility, which includes without limitation this approval, the approved plans and photo simulations incorporated into this approval, all conditions associated with this approval and any ministerial permits or approvals issued in connection with this approval. In the event that the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved through an inspection of the missing records will be construed against the permittee.
15. Compliance Obligations. An applicant or permittee will not be relieved of its obligation to comply with every applicable provision in the SMC, any permit, any permit condition or any applicable law or regulation by reason of any failure by the City to timely notice, prompt or enforce compliance by the applicant or permittee. (Ord. 1123 § 3 (Exh. A § 4), 2019)