Ordinance Number 1066URGENCY ORDINANCE NO. 1066
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN
u
JUAN CAPISTRANO TO AMEND THE SAN JUAN CAPISTRANO MUNICIPAL
CODE, TITLE 7, TO ADD A NEW CHAPTER 10, "WIRELESS FACILITIES IN
RIGHTS-OF-WAY."
WHEREAS, pursuant to the laws of the State of California, the City of San Juan
Capistrano ("City") has the authority to adopt such ordinances as it deems necessary
and appropriate to assure good government in the City, to protect and preserve the
City's rights, property and privileges, and to preserve peace, safety and good order;
and
WHEREAS, the City deems it to be necessary and appropriate to provide for
certain standards and regulations relating to the location, placement, design,
construction and maintenance of telecommunications towers, antennas and other
structures within the City's rights-of-way, and providing for the enforcement of said
standards and regulations, consistent with federal and state law limitations on that
authority.
WHEREAS, the City deems it necessary and appropriate to enact regulations for
wireless facilities in the right-of-way by urgency ordinance under Cal. Gov. Code
Section 36937(b) because the matters herein concern "the immediate preservation of
the public peace, health or safety" of the City's citizens.
NOW, THEREFORE, BE IT ENACTED AND ORDAINED by the City Council:
SECTION 1: The foregoing Recitals are adopted as findings of the City Council
as though set forth in fully within the body of this ordinance.
SECTION 2: Urgency Findings.
(a) The City adopts this ordinance as an urgency measure pursuant to
Government Code Section 36937(b) to protect the public peace, health
and safety.
(b) Since the City Council last amended the portions of the City Municipal
Code ("Code") applicable to wireless facilities, the deployment of wireless
facilities in right-of-way has increased nationwide and significant changes
in federal laws that affect local authority over wireless facilities and other
related infrastructure deployments have occurred, including, but not
limited to, the following:
(1) On August 2, 2018, the Federal Communications Commission
("FCC") adopted a Third Report & Order and Declaratory Ruling in
the rulemaking proceeding titled Accelerating Wireline and Wireless
Broadband Deployment by Removing Barriers to Infrastructure
Investment, 33 FCC Rcd. 7705 (rel. Aug. 3, 2018) (the "August
Order"), that, among other things, contained a declaratory ruling
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(c)
(d)
(e)
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prohibiting express and de facto moratoria for all personal wireless
services, telecommunications services and their related facilities
under 47 U.S.C. § 253(a) and directed the Wireless
Telecommunications Bureau and Wireline Competition Bureau to
hear and resolve all complaints on an expedited basis. The
declaratory ruling in the August Order was made effective upon
release of the August Order which occurred on August 3, 2018; and
(2) On September 26, 2018, the FCC adopted a Declaratory Ruling
and Third Report and Order in the same rulemaking proceeding, 33
FCC Rcd 9088, FCC 18-133 (rel. Sep. 27, 2018) (the "September
Order"), which, among many other things, created new shorter
"Shot clocks" for small wireless facilities (as defined in the
September Order); altered existing "shot clock" regulations to
require local public agencies to do more in less time; established a
national standard for an effective prohibition related to small
wireless facilities that replaced the existing "significant gap" test
adopted by the United States Court of Appeals for the Ninth Circuit
and provided that a failure to act within the applicable timeframe
presumptively constitutes an effective prohibition. The September
Order was made effective 90 days after publication in the Federal
Register, that is, on January 14, 2019. The September Order also
established that local governments should publish aesthetic
standards by April 15, 2019 and that the standards must be in place
before an application is submitted in order for the standards to
apply to that proposed wireless facility.
In light of the FCC Orders, the City deems it to be necessary and
appropriate to provide for certain standards and regulations relating to the
location, placement, design, construction, and maintenance of
telecommunications antennas and infrastructure within the City's right-of-
way, and providing for the enforcement of said standards and regulations,
consistent with federal and state law limitations on that authority.
Further, numerous carriers have expressed interest in submitting
applications for the installation of wireless facilities in the right-of-way.
Most portions of the FCC Orders are already in effect, so if the City does
not immediately amend the Code, then there is a risk that the City may not
be able to enforce provisions of its Code or comply with the new federal
regulations.
The City's right-of-way is a valuable resource, and the regulation of
wireless installations in the right-of-way is necessary to protect and
preserve aesthetics in the community.
If not adequately regulated, then the installation of wireless facilities within
the right-of-way can pose a threat to the public health, safety, and welfare,
including disturbance to the right-of-way through the installation and
maintenance of wireless facilities; traffic and pedestrian safety hazards
due to the unsafe location of wireless facilities; impacts to trees where
proximity conflicts may require unnecessary trimming of branches or
require removal of roots due to related undergrounding of equipment or
connection lines; land use conflicts and incompatibilities including
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excessive height or poles and towers; creation of visual and aesthetic
blights and potential safety concerns arising from excessive size, heights,
noise, or lack of camouflaging of wireless facilities, including the
associated pedestals, meters, equipment and power generators, all of
which may negatively impact the City and its citizens.
(g) Therefore, the City deems it necessary and appropriate to enact
regulations for wireless telecommunications facilities in the right-of-way by
urgency ordinance under Cal. Gov. Code Section 36937(b) because the
matters herein concern "the immediate preservation of the public peace,
health or safety" of the City's citizens.
SECTION 3: Title 7 of the San Juan Capistrano Municipal Code ("Code") shall
be amended to add a new Chapter 10, entitled "Wireless Facilities in Rights -Of -Way"
as follows:
CHAPTER 10
WIRELESS FACILITIES IN RIGHTS-OF-WAY
Section 7-10.01. Purpose.
The purpose of this Article is to establish a process for managing, and uniform
standards for acting upon, requests for the placement of wireless facilities within the
rights-of-way of the City consistent with the City's obligation to promote the public
health, safety, and welfare, to manage the rights-of-way, and to ensure that the public is
not incommoded by the use of the rights-of-way for the placement of wireless facilities.
The City recognizes the importance of wireless facilities to provide high-quality
communications service to the residents and businesses within the City, and the City
also recognizes its obligation to comply with applicable Federal and State law regarding
the placement of personal wireless services facilities in its rights-of-way. This ordinance
shall be interpreted consistent with those provisions.
Section 7-10.02. Definitions. The terms used in this Article shall have the following
meanings:
Application: A formal request, including all required and requested
documentation and information, submitted by an applicant to the City for a wireless
encroachment permit.
Applicant: A person filing an application for placement or modification of a
wireless facility in the right-of-way.
Base Station: shall have the meaning as set forth in 47 C.F.R. Section
1.6100(b)(1), or any successor provision.
Eligible Facilities Request: shall have the meaning as set forth in 47 C.F.R.
Section 1.6100(b)(3), or any successor provision.
FCC: The Federal Communications Commission or its lawful successor.
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Municipal Infrastructure: City -owned structures, objects, and equipment in the
rights-of-way, including, but not limited to, street lights, traffic control structures,
banners, street furniture, bus stops, billboards, or other poles, lighting fixtures, or
electroliers located within the rights-of-way. f
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Permittee: any person or entity granted a wireless encroachment permit
pursuant to this Article.
Personal Wireless Services: shall have the same meaning as set forth in 47
U.S.C. Section 332(c)(7)(C)(i).
Personal Wireless Services Facility: means a wireless facility used for the
provision of personal wireless services.
Rights -of -Way ("ROW"): Means the surface of and the space above and below
the public streets, roads, and alley right-of-way, and public utility easements or other
public ways of any type whatsoever, now or thereafter located and existing within the
City of San Juan Capistrano limits, whether or not improved.
Small Cell Facility: shall have the same meaning as "small wireless facility" in
47 C.F.R. 1.6002(1), or any successor provision (which is a personal wireless
services facility that meets the following conditions that, solely for convenience, have
been set forth below):
(1) The facility—
(i) is mounted on a structure 50 feet or less in height, including antennas,
as defined in 47 C.F.R. Section 1.1320(d), or
(ii) is mounted on a structure no more than 10 percent taller than other
adjacent structures, or
(iii) does not extend an existing structure on which it are located to a
height of more than 50 feet or by more than 10 percent, whichever is greater;
(2) Each antenna associated with the deployment, excluding associated antenna
equipment (as defined in the definition of antenna in 47 C.F.R. Section 1.1320(d)), is
no more than three cubic feet in volume;
(3) All other wireless equipment associated with the structure, including the
wireless equipment associated with the antenna and any pre-existing associated
equipment on the structure, is no more than 28 cubic feet in volume;
(4) The facility does not require antenna structure registration under 47 C.F.R.
Part 17;
(5) The facility is not located on Tribal lands, as defined under 36 C.F.R. Section
800.16(x); and
(6) The facility does not result in human exposure to radiofrequency radiation in
excess of the applicable safety standards specified in 47 C.F.R. Section 1.1307(b).
Support Structure: Any structure capable of supporting a base station.
Tower: Any structure built for the sole or primary purpose of supporting any
FCC -licensed or authorized antennas and their associated facilities, including
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structures that are constructed for personal wireless services including, but not
limited to, private, broadcast, and public safety services, as well as unlicensed
wireless services and fixed wireless services such as microwave backhaul, and the
associated site. This definition does not include utility poles.
Underground areas: Those areas where there are no electrical facilities or
facilities of the incumbent local exchange carrier in the ROW; or where the wires
associated with the same are or are required to be located underground; or where
the same are scheduled to be converted from overhead to underground. Electrical
facilities are distribution facilities owned by an electric utility and do not include
transmission facilities used or intended to be used to transmit electricity at nominal
voltages in excess of 35,000 volts.
Utility Pole: A structure in the ROW designed to support electric, telephone and
similar utility lines. A tower is not a utility pole.
Wireless Encroachment Permit: A permit issued pursuant to this Article
authorizing the placement or modification of a wireless facility of a design specified
in the permit at a particular location within the ROW; and the modification of any
existing support structure to which the wireless facility is proposed to be attached.
Wireless Facility, or Facility: The transmitters, antenna structures and other
types of installations used for the provision of wireless services at a fixed location,
including, without limitation, any associated tower(s), support structure(s), and base
station(s).
Wireless Infrastructure Provider: A person that owns, controls, operates or
manages a wireless facility or portion thereof within the ROW.
Wireless Regulations: Those regulations adopted pursuant to Section 5 and
implementing the provisions of this Article.
Wireless Service Provider: An entity that provides personal wireless services
to end users.
Section 7-10.03. Scope.
(a) In general. There shall be a type of encroachment permit entitled a "wireless
encroachment permit," which shall be subject to all of the same requirements as an
encroachment permit would, in addition to all of the requirements of this Article.
Unless exempted, every person who desires to place a wireless facility in the rights-
of-way or modify an existing wireless facility in the rights-of-way must obtain a
wireless encroachment permit authorizing the placement or modification in
accordance with this Article. Except for small cell facilities, facilities qualifying as
eligible facilities requests, or any other type of facility expressly allowed in the right-
of-way by state or federal law, no other wireless facilities shall be permitted pursuant
to this Article.
(b) Exemptions. This Chapter does not apply to:
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(1) The placement or modification of facilities by the City or by any other
agency of the state solely for public safety purposes.
(2) Installation of a "cell on wheels," "cell on truck" or a similar structure for a
temporary period in connection with an emergency or event, but no longer
than required for the emergency or event, provided that installation does not
involve excavation, movement, or removal of existing facilities.
(3) Installation of a wireless facility on the strand between two utility poles,
provided that the cumulative volume of all wireless facilities on the strand
shall not exceed one cubic foot and provided further that the installation
does not require replacement of the strand, or excavation, modification or
replacement of the utility poles.
(c) Other applicable requirements. In addition to the wireless encroachment
permit required herein, the placement of a wireless facility in the ROW requires the
persons who will own or control those facilities to obtain all permits required by
applicable law, and to comply with applicable law, including, but not limited to,
applicable law governing radio frequency (RF) emissions.
(d) Pre-existing Facilities in the ROW. Any wireless facility already existing in the
ROW as of the date of this Article's adoption shall remain subject to the provisions of
the City Code in effect prior to this Article, unless and until an extension of such
facility's then -existing permit is granted, at which time the provisions of this Article
shall apply in full force going forward as to such facility. The review of any request
for a renewal of a permit for such pre-existing facilities shall be conducted pursuant
to this Article, rather than the portion(s) of the City Code under which it was
previously reviewed.
(e) Public use. Except as otherwise provided by California law, any use of the right-
of-way authorized pursuant to this Chapter will be subordinate to the City's use and
use by the public.
Section 7-10.04. Administration.
(a) The City Engineer or its designee is responsible for administering this Article. As
part of the administration of this Article, the City Engineer may:
(1) Interpret the provisions of this Article;
(2) Develop and implement standards governing the placement and
modification of wireless facilities consistent with the requirements of this
Article, including regulations governing collocation and resolution of
conflicting applications for placement of wireless facilities;
(3) Develop and implement acceptable designs and development standards for
wireless facilities in the rights-of-way, taking into account the zoning districts
bounding the rights-of-way;
(4) Develop forms and procedures for submission of applications for placement
or modification of wireless facilities, and proposed changes to any support
structure consistent with this Article;
(5) Determine the amount of and collect, as a condition of the completeness of
any application, any fee established by this Article;
(6) Establish deadlines for submission of information related to an application,
and extend or shorten deadlines where appropriate and consistent with
state and federal laws and regulations;
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(7) Issue any notices of incompleteness, requests for information, or conduct or
commission such studies as may be required to determine whether a permit
should be issued;
(8) Require, as part of, and as a condition of completeness of any application,
notice to members of the public that may be affected by the placement or
modification of the wireless facility and proposed changes to any support
structure;
(9) Subject to appeal as provided herein, determine whether to approve,
approve subject to conditions, or deny an application; and
(10) Take such other steps as may be required to timely act upon applications
for placement of wireless facilities, including issuing written decisions and
entering into agreements to mutually extend the time for action on an
application.
(b) Appeal.
(1) Any person adversely affected by the decision of the City Engineer pursuant
to this Article may appeal the City Engineer's decision to the City Manager,
which may decide the issues de novo, and whose written decision will be
the final decision of the City. An appeal by a wireless infrastructure provider
must be taken jointly with the wireless service provider that intends to use
the personal wireless services facility.
(2) Where the City Engineer grants an application based on a finding that denial
would result in a prohibition or effective prohibition under applicable federal
law, the decision shall be automatically appealed to the City Manager. All
appeals must be filed within two (2) business days of the written decision of
the City Engineer, unless the City Engineer extends the time therefore. An
extension may not be granted where extension would result in approval of
the application by operation of law.
(3) Any appeal shall be conducted so that a timely written decision may be
issued in accordance with applicable law.
Section 7-10.05. General Standards for Wireless Facilities in the Rights -of -
Way.
(a) Generally. Wireless facilities in the ROW shall meet the minimum requirements
set forth in this ordinance and the wireless regulations, in addition to the
requirements of any other applicable law.
(b) Regulations. The wireless regulations and decisions on applications for
placement of wireless facilities in the ROW shall, at a minimum, ensure that the
requirements of this section are satisfied, unless it is determined that applicant has
established that denial of an application would, within the meaning of federal law,
prohibit or effectively prohibit the provision of personal wireless services, or
otherwise violate applicable laws or regulations. If that determination is made, then
the requirements of this Article may be waived, but only to the minimum extent
required to avoid the prohibition or violation.
(c) Minimum Standards. All applicants shall design and locate the wireless
facilities in accordance with the standards and wireless regulations set forth
separately though the resolution adopted by the City Council.
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Section 7-10.06. Applications.
(a) Submission. Unless the wireless regulations provide otherwise, applicant shall
submit a paper copy and an electronic copy of any application, amendments, or
supplements to an application, or responses to requests for information regarding an f
application to: City Engineer, at 32400 Paseo Adelanto, San Juan Capistrano, CA
92675.
(b) Pre -application meeting. Prior to filing an application for a wireless
encroachment permit, an applicant is encouraged to schedule a pre -application
meeting with the City Engineer to discuss the proposed facility, the requirements of
this Article, and any potential impacts of the proposed facility.
(c) Content. An application must contain: An applicant shall submit an application
on the form approved by the City Engineer, which may be updated from time -to -time,
but in any event shall require the submission of all required fee(s), documents,
information, and any other materials necessary to allow the City Engineer to make
required findings and ensure that the proposed facility will comply with applicable
federal and state law, the City Code, and will not endanger the public health, safety,
or welfare. If no form has been approved, then applications must contain all
information necessary to show that applicant is entitled to the wireless
encroachment permit requested, and must specify whether the applicant believes
state or federal law requires action on the application within a specified time period.
(d) Fees. A fee in the form of a deposit shall be submitted with any application for a
wireless encroachment permit. The amount of the fee deposit is based on the
estimated work to complete the plan checking and field review of each of the sites
where wireless facilities are planned. The City Council is hereby authorized to
determine, or cause to be determined, the amount, type, and other terms of such
fee(s) from time to time by means of resolution. Notwithstanding the foregoing, no
application fee shall be refundable, in whole or in part, to an applicant for a wireless
encroachment permit unless paid as a deposit and not fully spent. Unspent amounts
shall be refunded.
(e) Waivers. Requests for waivers from any requirement of this section shall be
made in writing to the City Engineer or his or her designee. The City Engineer may
grant or deny a request for a waiver pursuant to this subsection. The City Engineer
may grant a request for waiver if it is demonstrated that, notwithstanding the
issuance of a waiver, the City will be provided all information necessary to
understand the nature of the construction or other activity to be conducted pursuant
to the permit sought. All waivers approved pursuant to this subsection shall be (1)
granted only on a case-by-case basis, and (2) narrowly -tailored to minimize
deviation from the requirements of the City Code.
(0 Incompleteness. For personal wireless facilities and eligible facilities requests,
applications will be processed, and notices of incompleteness provided, in
conformity with state, local, and federal law. If such an application is incomplete,
then the City Engineer may notify the applicant in writing, and specifying the material
omitted from the application.
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Section 7-10.07. Findings; Decisions; Consultants.
(a) Findings Required for Approval.
(1) Except for eligible facilities requests, the City Engineer, as the case may be,
shall approve an application if, on the basis of the application and other
materials or evidence provided in review thereof, it finds the following:
(i) The facility is not detrimental to the public health, safety, and welfare;
(ii) The facility complies with this Article and all applicable design and
development standards; and,
(iii) The facility meets applicable requirements and standards of state and
federal law.
(2) For eligible facilities requests, the City Engineer, as the case may be, shall
approve an application if, on the basis of the application and other materials
or evidence provided in review thereof, it finds the following:
(i) That the application qualifies as an eligible facilities request; and
(ii) That the proposed facility will comply with all generally -applicable laws.
(b) Decisions. Decisions on an application by the City Engineer shall be in writing
and include the reasons for the decision.
(c) Independent Consultants. The City Engineer, as the case may be, is
authorized, in its discretion, to select and retain independent consultant(s) with
expertise in telecommunications in connection with the review of any application
under this Article. Such independent consultant review may be retained on any
issue that involves specialized or expert knowledge in connection with an
application, including, but not limited to, application completeness or accuracy,
structural engineering analysis, or compliance with FCC radio frequency emissions
standards. The cost for the independent consultant shall be borne by the applicant
as outlined in section 7-10.08 (d) Fees.
Section 7-10.08. Conditions of Approval.
(a) Generally. In addition to any supplemental conditions imposed by the City
Engineer, as the case may be, all permits granted pursuant to this Article shall be
subject to the following conditions, unless modified by the approving authority:
(1) Code Compliance. The permittee shall at all times maintain compliance with
all applicable federal, state and local laws, regulations and other rules,
including, without limitation, those applying to use of rights-of-way.
(2) Permit Duration. A wireless encroachment permit shall be valid for a period
of ten (10) years, unless pursuant to another provision of the Code or these
conditions, it expires sooner or is terminated. At the end of ten (10) years
from the date of issuance, such Permit shall automatically expire, unless an
extension or renewal has been granted. A person holding a wireless
encroachment permit must either (1) remove the facility within thirty (30)
days following the permit's expiration (provided that removal of support
structure owned by City, a utility, or another entity authorized to maintain a
support structure in the right of way need not be removed, but must be
restored to its prior condition, except as specifically permitted by the City);
or (2) at least ninety (90) days prior to expiration, submit an application to
renew the permit, which application must, among all other requirements,
demonstrate that the impact of the wireless facility cannot be reduced. The
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wireless facility must remain in place until it is acted upon by the City and all
appeals from the City's decision exhausted.
(3) Timing of Installation. The installation and construction authorized by a
wireless encroachment permit shall begin within one (1) year after its
approval, or it will expire without further action by the City. This period may
be extended at the Director's discretion if good cause is shown. The
installation and construction authorized by a wireless encroachment permit
shall conclude, including any necessary post -installation repairs and/or
restoration to the ROW, within thirty (30) days following the day construction
commenced.
(4) Commencement of Operations. The operation of the approved facility shall
commence no later than one (1) month after the completion of installation,
or the wireless encroachment permit will expire without further action by the
City. This period may be extended at the Director's discretion if good cause
is shown.
(5) As -Built Drawings after installation of the facility. As-builts shall be in an
electronic format acceptable to the City.]
(6) Inspections; Emergencies. The City or its designee may enter onto the
facility area to inspect the facility upon forty-eight (48) hours prior notice to
the permittee. The permittee shall cooperate with all inspections and may be
present for any inspection of its facility by the City. The City reserves the
right to enter or direct its designee to enter the facility and support, repair,
disable, or remove any elements of the facility in emergencies or when the
facility threatens imminent harm to persons or property. The city shall make
an effort to contact the permittee prior to disabling or removing any facility
elements, but in any case shall notify permittee within twenty-four (24) hours
of doing so.
(7) Contact. The permittee shall at all times maintain accurate contact
information for all parties responsible for the facility, which shall include a
phone number, street mailing address and email address for at least one
natural person.
(8) Insurance. Permittee shall obtain and maintain throughout the term of the
permit commercial general liability insurance with a limit of $5 million per
occurrence for bodily injury and property damage and $6 million general
aggregate including premises operations, contractual liability, personal
injury, and products completed operations. The relevant policy(ies) shall
name the City, its elected/appointed officials, commission members,
officers, representatives, agents, and employees as additional insureds.
Permittee shall use its best efforts to provide thirty (30) days' prior notice to
the City of the cancellation or material modification of any applicable
insurance policy.
(9) Indemnities. The permittee and, if applicable, the owner of the property
upon which the wireless facility is installed shall defend, indemnify and hold
harmless the City, its agents, officers, officials, and employees (i) from any
and all damages, liabilities, injuries, losses, costs, and expenses, and from
any and all claims, demands, law suits, writs of mandamus, and other
actions or proceedings brought against the city or its agents, officers,
officials, or employees to challenge, attack, seek to modify, set aside, void i
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or annul the city's approval of the permit, and (ii) from any and all damages,
liabilities, injuries, losses, costs, and expenses, and any and all claims,
demands, law suits, or causes of action and other actions or proceedings of
any kind or form, whether for personal injury, death or property damage,
arising out of or in connection with the activities or performance of the
permittee or, if applicable, the property owner or any of each one's agents,
employees, licensees, contractors, subcontractors, or independent
contractors. In the event the city becomes aware of any such actions or
claims the city shall promptly notify the permittee and, if applicable, the
private property owner and shall reasonably cooperate in the defense. The
City shall have the right to approve, which approval shall not be
unreasonably withheld, the legal counsel providing the City's defense, and
the property owner and/or permittee (as applicable) shall reimburse City for
any costs and expenses directly and necessarily incurred by the City in the
course of the defense.
(10) Adverse Impacts on Adjacent Properties. Permittee shall undertake all
reasonable efforts to avoid undue adverse impacts to adjacent properties
and/or uses that may arise from the construction, operation, maintenance,
modification, and removal of the facility.
(11) Noninterference. Permittee shall not move, alter, temporarily relocate,
change, or interfere with any existing structure, improvement, or property
without the prior consent of the owner of that structure, improvement, or
property. No structure, improvement, or property owned by the City shall be
moved to accommodate a permitted activity or encroachment, unless the
City determines that such movement will not adversely affect the City or any
surrounding businesses or residents, and the Permittee pays all costs and
expenses related to the relocation of the City's structure, improvement, or
property. Prior to commencement of any work pursuant to a wireless
encroachment permit, the Permittee shall provide the City with
documentation establishing to the city's satisfaction that the Permittee has
the legal right to use or interfere with any other structure, improvement, or
property within the right-of-way to be affected by Permittee's facilities.
(12) No Right, Title, or Interest. The permission granted by a wireless
encroachment permit shall not in any event constitute an easement on or an
encumbrance against the right-of-way. No right, title, or interest (including
franchise interest) in the right-of-way, or any part thereof, shall vest or
accrue in Permittee by reason of a wireless encroachment permit or the
issuance of any other permit or exercise of any privilege given thereby.
(13) No Possessory Interest. No possessory interest is created by a wireless
encroachment permit. However, to the extent that a possessory interest is
deemed created by a governmental entity with taxation authority, Permittee
acknowledges that City has given to Permittee notice pursuant to California
Revenue and Taxation Code Section 107.6 that the use or occupancy of
any public property pursuant to a wireless encroachment permit may create
a possessory interest which may be subject to the payment of property
taxes levied upon such interest. Permittee shall be solely liable for, and shall
pay and discharge prior to delinquency, any and all possessory interact
taxes or other taxes, fees, and assessments levied against Permittee's right
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to possession, occupancy, or use of any public property pursuant to any
right of possession, occupancy, or use created by this permit.
(14) General Maintenance. The site and the facility, including, but not limited to,
all landscaping, fencing, and related transmission equipment, must be
maintained in a neat and clean manner and in accordance with all approved
plans. All graffiti on facilities must be removed at the sole expense of the
permittee within forty-eight (48) hours after notification from the City.
(15) RF Exposure Compliance. All facilities must comply with all standards and
regulations of the FCC and any other state or federal government agency
with the authority to regulate RF exposure standards. After transmitter and
antenna system optimization, but prior to unattended operations of the
facility, permittee or its representative must conduct on-site post -installation
RF emissions testing to demonstrate actual compliance with the FCC OET
Bulletin 65 RF emissions safety rules for general population/uncontrolled RF
exposure in all sectors. For this testing, the transmitter shall be operating at
maximum operating power, and the testing shall occur outwards to a
distance where the RF emissions no longer exceed the uncontrolled/general
population limit.
(16) Testing. Testing of any equipment shall take place on weekdays only, and
only between the hours of 8:30 a.m. and 4:00 p.m., except that testing is
prohibited on holidays that fall on a weekday. In addition, testing is
prohibited on weekend days.
(17) Modifications. No changes shall be made to the approved plans without
review and approval in accordance with this Article.
(18) Agreement with City. If not already completed, permittee shall enter into the
appropriate agreement with the City, as determined by the City, prior to
constructing, attaching, or operating a facility on Municipal Infrastructure.
This permit is not a substitute for such agreement.
(19) Conflicts with Improvements. For all facilities located within the ROW, the
permittee shall remove or relocate, at its expense and without expense to
the city, any or all of its facilities when such removal or relocation is deemed
necessary by the city by reason of any change of grade, alignment, or width
of any right-of-way, for installation of services, water pipes, drains, storm
drains, power or signal lines, traffic control devices, right-of-way
improvements, or for any other construction, repair, or improvement to the
right-of-way. Relocation shall occur within 90 days after receiving
notification from the City.
(20) Abandonment. If a facility is not operated for a continuous period of ninety
(90) days, then the wireless encroachment permit and any other permit or
approval therefor shall be deemed abandoned and terminated
automatically, unless before the end of the ninety (90) day period (i) the City
Engineer has determined that the facility has resumed operations, or (ii) the
City has received an application to transfer the permit to another service
provider. No later than ninety (90) days from the date the facility is
determined to have ceased operation or the permittee has notified the City
Engineer of its intent to vacate the site, the permittee shall remove all
equipment and improvements associated with the use and shall restore the
site to its original condition to the satisfaction of the City Engineer. The
12 01066
permittee shall provide written verification of the removal of the facilities
within thirty (30) days of the date the removal is completed. If the facility is
not removed within thirty (30) days after the permit has been discontinued
pursuant to this subsection, then the site shall be deemed to be a nuisance,
and the City may cause the facility to be removed at permittee's expense or
by calling any bond or other financial assurance to pay for removal. If there
are two (2) or more users of a single facility or support structure, then this
provision shall apply to the specific elements or parts thereof that were
abandoned, but will not be effective for the entirety thereof until all users
cease use thereof.
(21) Encourage Co -location. Where the facility site is capable of accommodating
a co -located facility upon the same site in a manner consistent with the
permit conditions for the existing facility, the owner and operator of the
existing facility shall allow co -location of third party facilities, provided the
parties can mutually agree upon reasonable terms and conditions.
(22) Records. The permittee must maintain complete and accurate copies of all
permits and other regulatory approvals issued in connection with the 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 or fails to produce true
and complete copies of such records within a reasonable time after a written
request from the city, any ambiguities or uncertainties that would be
resolved through an inspection of the missing records will be construed
against the permittee.
(23) Attorney's Fees. In the event the City determines that it is necessary to take
legal action to enforce any of these conditions, or to revoke a permit, and
such legal action is taken, the Permittee shall be required to pay any and all
costs of such legal action, including reasonable attorney's fees, incurred by
the City, even if the matter is not prosecuted to a final judgment or is
amicably resolved, unless the City should otherwise agree with Permittee to
waive said fees or any part thereof. The foregoing shall not apply if the
Permittee prevails in the enforcement proceeding.
(b) Eligible Facilities Requests. In addition to the conditions provided in Section 7-
10.08(a) of this Article and any supplemental conditions imposed by the City
Engineer as the case may be, all permits for an eligible facility requests granted
pursuant to this Article shall be subject to the following additional conditions, unless
modified by the approving authority:
(1) Permit subject to conditions of underlying permit. Any permit granted in
response to an application qualifying as an eligible facilities request shall be
subject to the terms and conditions of the underlying permit.
(2) No permit term extension. The city's grant or grant by operation of law of an
eligible facilities request permit constitutes a federally -mandated
modification to the underlying permit or approval for the subject tower or
base station. Notwithstanding any permit duration established in another
permit condition, the city's grant or grant by operation of law of a eligible
13 01066
facilities request permit will not extend the permit term for the underlying
permit or any other underlying regulatory approval, and its term shall be
coterminous with the underlying permit or other regulatory approval for the
subject tower or base station.
(3) No waiver of standing. The city's grant or grant by operation of law of an
eligible facilities request does not waive, and shall not be construed to
waive, any standing by the city to challenge Section 6409(a) of the
Spectrum Act, any FCC rules that interpret Section 6409(a) of the Spectrum
Act, or any modification to Section 6409(a) of the Spectrum Act.
(c) Small Cell Facilities Requests. In addition to the conditions provided in Section
7-10.08(a) of this Article and any supplemental conditions imposed by the City
Engineer as the case may be, all permits for a small cell facility granted pursuant to
this Article shall be subject to the following condition, unless modified by the
approving authority:
(1) No waiver of standing. The city's grant of a permit for a small cell facility
request does not waive, and shall not be construed to waive, any standing
by the city to challenge any FCC orders or rules related to small cell
facilities, or any modification to those FCC orders or rules.
Section 7-10.09. Breach; Termination of Permit.
(a) For breach. A wireless encroachment permit may be revoked for failure to
comply with the conditions of the permit or applicable law. Upon revocation, the
wireless facility must be removed; provided that removal of a support structure
owned by City, a utility, or another entity authorized to maintain a support structure
in the right-of-way need not be removed, but must be restored to its prior condition,
except as specifically permitted by the City. All costs incurred by the City in
connection with the revocation and removal shall be paid by entities who own or
control any part of the wireless facility.
(b) For installation without a permit. An wireless facility installed without a
wireless encroachment permit (except for those exempted by this Article) must be
removed; provided that removal of support structure owned by City, a utility, or
another entity authorized to maintain a support structure in the right of way need not
be removed, but must be restored to its prior condition, except as specifically
permitted by the City. All costs incurred by the City in connection with the revocation
and removal shall be paid by entities who own or control any part of the wireless
facility.
(c) Municipal Infraction. Any violation of this Article will be subject to the same
penalties as a violation of the San Juan Municipal Code Section 7-4.03.
Section 7-10.010. Infrastructure Controlled By City. The City, as a matter of
policy, will negotiate agreements for use of Municipal Infrastructure. The placement of
wireless facilities on those structures shall be subject to the agreement. The agreement
shall specify the compensation to the City for use of the structures. The person seeking
the agreement shall additionally reimburse the City for all costs the City incurs in
connection with its review of, and action upon the person's request for, an agreement.
14 01066
Section 7-10.011. Nondiscrimination. In establishing the rights, obligations and
conditions set forth in this article, it is the intent of the City to treat each applicant or
right-of-way user in a competitively neutral and nondiscriminatory manner, to the extent
required by law, and with considerations that may be unique to the technologies,
situation and legal status of each particular applicant or request for use of the rights-of-
way.
SECTION 4: The City Manager, or his or her delegate, is directed to execute all
documents and to perform all other necessary City acts to implement effect this
Ordinance.
SECTION 5: CEQA. This Ordinance is not a project within the meaning of
Section 15378 of the State of California Environmental Quality Act ("CEQA")
Guidelines, because it has no potential for resulting in physical change in the
environment, directly or indirectly. The Ordinance does not authorize any specific
development or installation on any specific piece of property within the City's
boundaries. Moreover, when and if an application for installation is submitted, the City
will at that time conduct preliminary review of the application in accordance with CEQA.
Alternatively, even if the Ordinance is a "project" within the meaning of State CEQA
Guidelines section 15378, the Ordinance is exempt from CEQA on multiple grounds.
First, the Ordinance is exempt CEQA because the City Council's adoption of the
Ordinance is covered by the general rule that CEQA applies only to projects which
have the potential for causing a significant effect on the environment. (State CEQA
Guidelines, § 15061(b)(3)). That is, approval of the Ordinance will not result in the
actual installation of any facilities in the City. In order to install a facility in accordance
with this Ordinance, the wireless provider would have to submit an application for
installation of the wireless facility. At that time, the City will have specific and definite
information regarding the facility to review in accordance with CEQA. And, in fact, the
City will conduct preliminary review under CEQA at that time. Moreover, in the event
that the Ordinance is interpreted so as to permit installation of wireless facilities on a
particular site, the installation would be exempt from CEQA review in accordance with
either State CEQA Guidelines section 15302 (replacement or reconstruction), State
CEQA Guidelines section 15303 (new construction or conversion of small structures),
and/or State CEQA Guidelines section 15304 (minor alterations to land). The City
Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of
the County of Orange within five working days of the passage and adoption of the
Ordinance.
SECTION 6: Severability. If any section, subsection, provision, sentence,
clause, phrase or word of this Ordinance is for any reason held to be illegal or
otherwise invalid by any court of competent jurisdiction, then such invalidity shall be
severable, and shall not affect or impair any remaining section, subsection, provision,
sentence, clause, phrase or word included within this Ordinance, it being the intent of
the City that the remainder of the Ordinance shall be and shall remain in full force and
effect, valid, and enforceable.
15 01066
SECTION 7: In accordance with California Government Code Section
36937(b), this ordinance shall become effective immediately upon its passage and
adoption.
PASSED AND ADOPTED BY THE COUNCIL OF SAN JUAN CAPISTRANO this
16th day of April 2019.
BRkAWL:'MARY.OTT, MAYOR
ATTEST: i
MARIA MORRIS, CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, City Clerk of the City of San Juan Capistrano, do hereby certify
that the foregoing is a true and correct copy of Urgency Ordinance No. 1066 was
duly adopted and passed at the Regular Meeting of the City Council on the 16th day
of April 2019 by the following vote, to wit:
AYES: COUNCIL MEMBERS: Reeve, Taylor, Farias, Bourne, and Mayor Maryott
NOES COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
MARIA MORRIS, CITY'CLERK
16 01066
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, declare as follows:
That I am the duly appointed and qualified City Clerk of the City of San Juan
Capistrano; That in compliance with State laws, Government Code section 36933(1)
of the State of California, on the 5th day of April 2019, at least 5 days prior to the
adoption of the ordinance, I caused to be posted a certified copy of the proposed
ordinance entitled:
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SAN JUAN CAPISTRANO TO AMEND THE SAN JUAN
CAPISTRANO MUNICIPAL CODE, TITLE 7, TO ADD A NEW
CHAPTER 10, "WIRELESS FACILITIES IN RIGHTS-OF-WAY."
This document was posted in the Office of th7 ity Clerk
MARIA MORRIS, CITY CLERK
San Juan Capistrano, California
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss AFFIDAVIT OF POSTING
CITY OF SAN JUAN CAPISTRANO )
I, MARIA MORRIS, declare as follows:
That I am the duly appointed and qualified City Clerk of the City of San Juan
Capistrano; that in compliance with State laws, Government Code section 36933(1)
of the State of California.
On the 17th day of April, I caused to be posted a certified copy of Urgency
Ordinance No. 1066, adopted by the City Council on April 16, 2019, entitled:
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF SAN JUAN CAPISTRANO TO AMEND THE SAN JUAN
CAPISTRANO MUNICIPAL CODE, TITLE 7, TO ADD A NEW
CHAPTER 10, "WIRELESS FACILITIES IN RIGHTS-OF-WAY."
This document was posted in the Office of the City Clerk
t� �, I ,
MAM, MORRIS, CITY CLERK
San Juan Capistrano, California
17 01066