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Home My WebLink About4.0 - Wireless Telecommunications Facilities Ordinance Update - CA2012-004 - PA2012-057CITY OF NEWPORT BEACH PLANNING COMMISSION STAFF REPORT November 21, 2013 Agenda Item No. 4 SUBJECT: Wireless Telecommunications Facilities Ordinance Update (PA2012 -057) • Code Amendment No. CA2012 -004 PLANNER: James Campbell, Principal Planner (949) 644 -3210, Icampbell(a)newportbeachca.gov PROJECT SUMMARY An amendment to the Newport Beach Municipal Code ( "NBMC ") to update regulations regarding wireless telecommunication facilities ( "Telecom Facilities "). Regulations currently contained in Chapter 15.70 would be updated and relocated to Title 20 (Planning and Zoning) and Chapter 15.70 would be rescinded in its entirety. RECOMMENDED ACTION 1. Conduct a public hearing; and 2. Adopt the attached resolution recommending City Council approval of the proposed update of the Wireless Telecommunication Ordinance (CA2012 -004) (Attachment PC -1). DISCUSSION The amendment relocates telecom regulations from Title 15 (Building and Construction) to Title 20 (Zoning). The amendment will provide a balanced review process consistent with existing procedures provided within the Zoning Code. Proposed telecom facilities that are not visible will be permitted by the Zoning Clearance process. Proposed telecom facilities that would be visible, including proposed installations within the public right -of -way, will require a Minor Use Permit. A Conditional Use Permit will be required if a new free standing structure is proposed. The proposed amendment also does not increase the potential height of telecom facilities and does not allow them in areas where they are currently prohibited. The amendment includes development and screening standards to ensure that future telecom facilities are visually compatible with the community. Lastly, the proposed amendment includes provisions reflective of state and federal law that require administrative review of minor modifications to, or the collocation of, existing telecom facilities. The Planning Commission conducted two study sessions in 2012, and two recently, one on September 19, 2013, and the other on October 17, 2013. During the meetings, the Commission discussed the proposed update and provided direction to staff. Based on the dialog, staff updated the draft ordinance (Attachment PC -2) while making the following changes that were not previously discussed: 1. Changed the term "Antenna Class" to "Facility Class" (see Section 20.49.030(G) on page 8 of the draft resolution). Wireless Telecommunications Facilities Ordinance (PA2012 -057) November 21, 2013 Page 2 2. Included a provision to strongly discourage new lattice towers and monopoles. Staff included a statement that the preferred design for a monopole is where antennas are not visible (see Section 20.49.050(F)(4)(a) on page 13 of the draft resolution). 3. Included a provision to strongly discourage artificial trees or shrubbery since they cannot presently be made to resemble natural vegetation in a sufficiently believable and realistic fashion and such attempts to replicate nature in the wrong setting increase, rather than reduce, visual blight (see Section 20.49.050(F)(4)(d) on pages 13 and 14 of the draft resolution). 4. Eliminated the paragraph within the Radio Frequency "RF" compliance report section referring to an independent RF engineer to review the reports. Staff presently reviews the reports and does not foresee the need to hire an independent consulting engineer to review RF compliance reports (see Section 20.49.100 on pages 19 and 20 of the draft resolution). ENVIRONMENTAL REVIEW This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. NOTICE Notice of this amendment was published in the Daily Pilot, including an eighth page advertisement, consistent with the provisions of the Municipal Code. Additionally, the item appeared on the agenda for this meeting, which was posted at City Hall and on the City website and a notice of this item was mailed to the community associations of Balboa Island, Balboa Peninsula, Corona del Mar, Lido Isle, and West Newport. Prepared by: W k J es Campbell, Principal Plariner Attachments Submitted by: ('J w�l r"4" - r n a Wisnesl i, ICP, Deputy Director PC -1 Draft Resolution with Updated Regulations PC -2 Update of draft Chapter 20.49 with marked changes ATTACHMENT PC -1 Draft Resolution Page Intentionally Blank RESOLUTION NO. # # ## A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING CITY COUNCIL ADOPTION OF CODE AMENDMENT NO. CA2012 -004 RELATED TO THE REGULATION OF WIRELESS TELECOMUNICATIONS FACILITIES (PA2012 -057) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. On March 27, 2012, the City Council initiated an amendment of the Municipal Code to comprehensively update the City's wireless telecommunications facilities ordinance. 2. The Planning Commission conducted study sessions on July 19, 2012, September 6, 2012, September 19, 2013, and October 17, 2013, where potential changes to the ordinance were discussed. 3. A public hearing was held on November 21, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. SECTION 3. FINDINGS. 1. The proposed amendment will provide a balanced review process consistent with existing procedures provided within the Zoning Code (Title 20). Proposed telecom facilities that are not visible will be permitted by the Zoning Clearance process. Proposed telecom facilities that would be visible will be subject to either a Minor Use Permit or a Conditional Use Permit if a new free standing structure were proposed. 2. The proposed amendment does not increase the potential height of telecom facilities and does not allow them in areas where they are currently prohibited. 3. The proposed amendment includes adequate development and screening standards to ensure that future telecom facilities are visually compatible with the community. Planning Commission Resolution No. 2of21 4. The proposed amendment includes provisions reflective of State and federal law that require administrative review of minor modifications to, or the collocation of, existing telecom facilities. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby recommends approval of Code Amendment No. CA2012 -004 as set forth in Exhibit "A." PASSED, APPROVED AND ADOPTED THIS DAY OF 2013. AYES: NOES: ABSTAIN: ABSENT: BY: M Bradley Hillgren, Chairman Kory Kramer, Secretary Planning Commission Resolution No. 3of21 EXHIBIT A Code Amendment No. CA2012 -004 Section 1: Chapter 15.70 of the Newport Beach Municipal Code is hereby repealed. Section 2: Table 2 -1 within Section 20.18.020 (Residential Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -1 remaining unchanged: Section 3: Table 2-4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2-4 remaining unchanged: R -A R -1 R -BI RM Specific Use Specific Use R -2 RMD Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication — — — MUP /CUP /LTP Chapter 20.49 Facilities LTP LTP 20.49 Facilities Section 3: Table 2-4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2-4 remaining unchanged: Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: OA OG OM OR Specific Use Specific Use Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities LTP LTP 20.49 Facilities Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: CC CG CM CN Cv Specific Use Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Chapter Telecommunication LTP LTP LTP LTP LTP 20.49 Facilities Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Planning Commission Resolution No. 4of21 Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: MU -V MU -MM (6) MU -DW MU -cV 115th Specific Use MU -W2 Regulations Wireless CUP /MUP/ St. (7) Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ LTP Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: MU -W1 Specific Use Specific Use IG (5)(6) MU -W2 Regulations Wireless CUP /MUP/ CUP /MUP/ Chapter 20.49 Telecommunication LTP CUP /MUP/ Chapter 20.49 Facilities LTP LTP LTP Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use IG Regulations Wireless CUP /MUP/ PF Telecommunication PR Chapter 20.49 Facilities LTP CUP /MUP/ Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use OS PF PI PR Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Telecommunication LTP LTP LTP LTP Chapter 20.49 Facilities Planning Commission Resolution No. 5of21 Section 7: Chapter 20.49 (Wireless Telecommunication Facilities) of the Newport Beach Municipal Code as is hereby approved as shall read as follows. Chapter 20.49 — Wireless Telecommunications Facilities Sections 20.49.010 — Purpose 20.49.020 — Effect of Chapter 20.49.030 — Definitions 20.49.040 — Telecom Facility Preferences and Prohibited Locations 20.49.050 — General Development and Design Standards 20.49.060 — Permit Review Procedures 20.49.070 — Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 — Agreement for Use of City -owned or City -held Trust Property 20.49.090 — Modification and Collocation of Existing Telecom Facilities 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report 20.49.110 — Right to Review, Revoke or Modify a Permit 20.49.120 — Removal of Telecom Facilities 20.49.010 — Purpose A. The purpose of this Chapter is to provide for the installation, modification, operation and maintenance of wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with State and federal law while ensuring public safety, reducing the visual effects of Telecom Facilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the visual impacts of Telecom Facilities on the community. B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and thereby reduce their visual impact on the community. C. The provisions of this Chapter are not intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecom services. This Chapter shall be applied to providers, operators, and maintainers of wireless services regardless of whether authorized by State or federal regulations. This Chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecom services. 20.49.020 — Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities providing wireless voice and /or data transmission such as, but not limited to, cell phone, internet, and radio relay stations. Planning Commission Resolution No. 6of21 B. Permit and /or Agreement Required. Prior to construction or modification of any Telecom Facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use Permit (CUP), Limited Term Permit (LTP), or Zoning Clearance (ZC) in accordance with Section 20.49.060 (Permit Review Procedures). Applicants who obtain a MUP, CUP, LTP, or ZC (and an encroachment permit, if required) for any Telecom Facility approved to be located on any City -owned property or City - held Trust property, shall enter into an agreement prepared and executed by the City Manager or its designee prior to construction of the Facility, consistent with Section 20.49.080 (Agreement for Use of City -owned or City -held Trust Property). C. Exempt Facilities. The following types of facilities are exempt from the provisions of this Chapter: 1. Amateur radio antennas and receiving satellite dish antennas, and citizen band radio antennas regulated by Section 20.48.190 (Satellite Antennas and Amateur Radio Facilities). 2. Dish and other antennas subject to the FCC Over - the -Air Reception Devices ( "OTARD ") rule, 47 C.F.R. § 1.4000 that are designed and used to receive video programming signals from (a) direct broadcast satellite services, or (b) television broadcast stations, or (c) for wireless cable service. 3. During an emergency, as defined by Title 2 of the NBMC, the City Manager, Director of Emergency Services or Assistant Director of Emergency Services shall have the authority to approve the placement of a Telecom Facility in any district on a temporary basis not exceeding ninety (90) calendar days from the date of authorization. Such authorization may be extended by the City on a showing of good cause. 4. Facilities exempt from some or all of the provisions of this Chapter by operation of State or federal law to the extent so determined by the City. 5. Systems installed or operated at the direction of the City or its contractor. 6. Systems installed entirely within buildings for the sole purpose of providing wireless telecommunications or data transmission services to building occupants. D. Other Regulations. Notwithstanding the provisions of this Chapter, all Telecom Facilities within the City shall comply with the following requirements: 1. Rules, regulations, policies, or conditions in any permit, license, or agreement issued by a local, state or federal agency which has jurisdiction over the Telecom Facility. 2. Rules, regulations and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC). E. Regulations not in Conflict or Preempted. All Telecom Facilities within the City shall comply with the following requirements unless in conflict with or preempted by the provisions of this Chapter: 1. All applicable City design guidelines and standards. Planning Commission Resolution No. 7of21 2. Requirements established by any other provision of the Municipal Code and by any other ordinance and regulation of the City. F. Legal Nonconforming Facility. Any Telecom Facility that was lawfully constructed, erected, or approved prior to [INSERT EFFECTIVE DATE OF THIS CHAPTER], that is operating in compliance with all applicable laws, and which Facility does not conform to the requirements of this Chapter shall be accepted and allowed as a legal nonconforming Facility. Legal nonconforming Facilities shall comply at all times with the laws, ordinances, regulations, and any conditions of approval in effect at the time the Facility was approved, and any applicable federal and State laws as they may be amended or enacted, in the future. 20.49.030 — Definitions For the purposes of this Chapter, the following definitions shall apply: A. Antenna. Antenna means a device used to transmit and /or receive radio or electromagnetic waves between earth and /or satellite -based systems, such as reflecting discs, panels, microwave dishes, whip antennas, Antennas, arrays, or other similar devices. B. Antenna Array. Antenna Array means Antennas having transmission and /or reception elements extending in more than one direction, and directional Antennas mounted upon and rotated through a vertical mast or tower interconnecting the beam and Antenna support structure, all of which elements are deemed to be part of the Antenna. C. Base Station. Base Station means the electronic equipment and appurtenant Support Equipment at a Telecom Facility installed and operated by the Telecom Operator that together perform the initial signal transmission and signal control functions. A Base Station does not include the Antennas, Antenna support structure, or any portion of Distributed Antenna System (DAS). D. City -owned or City -held Trust Property. City -owned or City -held Trust Property means all real property and improvements owned, operated or controlled by the City, other than the public right -of -way, within the City's jurisdiction, including but not limited to City Hall, Police and Fire facilities, recreational facilities, parks, beaches, libraries, monuments, signs, streetlights and traffic control standards. E. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. F. Distributed Antenna System, DAS. Distributed Antenna System (DAS) means a network of one or more Antennas and fiber optic nodes typically mounted to streetlight poles, or utility structures, which provide access and signal transfer services to one or more third -party wireless service providers. DAS also includes the equipment location, sometimes called a "hub" or "hotel" where the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. Planning Commission Resolution No. 8of21 G. Facility Classes. Facility Classes are Telecom Facilities and the attendant Support Equipment separated into the following distinct classes: 1. Class 1 (Stealth /Screened): a Facility with Antennas mounted on an existing or proposed non- residential building or other structure not primarily intended to be an antenna support structure where Antennas and Support Equipment, including the base station, are fully screened so that they are not visible to the general public. 2. Class 2 (Visible Antennas): a Facility with Antennas mounted on an existing non - residential building, structure, pole, light standard, Utility Tower, Wireless Tower and /or Lattice Tower. 3. Class 3 (Public Right -of -Way Installations): a Facility with Antennas installed on a structure located in the public right -of -way. 4. Class 4 (Freestanding Structure): a Facility with Antennas mounted on a new freestanding structure constructed for the sole or primary purpose of supporting the Telecom Facility. 5. Class 5 (Temporary): a Facility including associated Support Equipment that is installed at a site on a temporary basis pursuant to a Limited Term Permit. A Class 5 installation may also be installed in connection with a special event upon the approval of a Special Events Permit pursuant to Chapter 11.03 without a Limited Term Permit. H. FCC. FCC means the Federal Communications Commission, the federal regulatory agency charged with regulating interstate and international communications by radio, television, wire, satellite, and cable. I. Feasible or Feasibly. Feasible or Feasibly means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal and technological factors. J. Lattice Tower. Lattice Tower means a freestanding open framework structure used to support Antennas, typically with three or four support legs of open metal crossbeams or crossbars. K. Monopole. Monopole means a single free - standing pole or pole -based structure solely used to act as or support a Telecom Antenna or Antenna Arrays. L. Operator or Telecom Operator. Operator or Telecom Operator means any person, firm, corporation, company, or other entity that directly or indirectly owns, leases, runs, manages, or otherwise controls a Telecom Facility or facilities within the City. The definition does not include a property owner(s) who leases property for a Telecom Facility. M. Public Right -of -Way. Public Right -of -Way or ( "PROW ") means the improved or unimproved surface of any street, or similar public way of any nature, dedicated or improved for vehicular, bicycle, and /or pedestrian related use. PROW includes public streets, roads, lanes, alleys, sidewalks, medians, parkways and landscaped lots. Planning Commission Resolution No. 9of21 N. Stealth or Stealth Facility. Stealth or Stealth Facility means a Telecom Facility in which the Antenna, and the Support Equipment, are completely hidden from view in a monument, cupola, pole -based structure, or other concealing structure which either mimics, or which also serves as, a natural or architectural feature. Concealing structures which are obviously not such a natural or architectural feature to the average observer do not qualify within this definition. An artificial tree is not a Stealth Facility. O. Support Equipment. Support Equipment means the physical, electrical and /or electronic equipment included within a Telecom Facility used to house, power, and /or contribute to the processing of signals from or to the Facility's Antenna or Antennas, including but not limited to a base station, cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters. Support Equipment does not include DAS, Antennas or the building or structure to which the Antennas or other equipment are attached. P. Telecom munication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends and /or receives wireless radio frequency signals or electromagnetic waves, including but not limited to directional, omni - directional and parabolic antennas, structures or towers to support receiving and /or transmitting devices, supporting equipment and structures, and the land or structure on which they are all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios /telephones and their associated transmitting antennas. Q. Utility Pole. Utility Pole means a single freestanding pole used to support services provided by a public or private utility provider. R. Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or steel pole used to support electric transmission facilities. S. Wireless Tower. Wireless Tower means any structure built for the sole or primary purpose of supporting Antennas used to provide wireless services authorized by the FCC. A Distributed Antenna System (DAS) installed pursuant to a Certificate of Public Convenience and Necessity (CPCN) issued by the California Public Utilities Commission on a water tower, utility tower, street light, or other structures built or rebuilt or replaced primarily for a purpose other than supporting wireless services authorized by the FCC, including any structure installed pursuant to California Public Utility Code Section 7901, is not a Wireless Tower for purposes of this definition. For an example only, a prior- existing street light standard which is replaced with a new street light standard to permit the addition of Antennas shall not be considered a Wireless Tower, but rather a replacement street light standard. 20.49.040 — Telecom Facility Preferences and Prohibited Locations A. Preferred Locations. To limit the adverse visual effects of and proliferation of new or individual Telecom Facilities in the City, the following list establishes the order of preference of Facilities, from the most preferred (1) to lease preferred (4). Planning Commission Resolution No. 10 of 21 1. Collocation of a new Facility at an existing Facility. 2. Class 1. 3. Class 2. 4. Class 4. B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: 1. On properties zoned for single -unit or two -unit residential development including equivalent Planned Community District or Specific Plan districts. 2. On properties zoned for multi -unit residential development and mixed -use development including equivalent Planned Community District or Specific Plan districts where the maximum allowable number of dwelling units is four (4) units. 3. In the Open Space (OS) zoning district, unless Telecom Facilities are collocated on an existing Utility Tower within a utility easement area, or collocated on an existing Facility. 4. On traffic control standards (traffic signal poles). 20.49.050 — General Development and Design Standards A. General Criteria. All Telecom Facilities shall employ design techniques to minimize visual impacts and provide appropriate screening to result in the least visually intrusive means of providing the service. Such techniques shall be employed to make the installation, appearance and operations of the Facility as visually inconspicuous as practicable. To the greatest extent Feasible, Facilities shall be designed to minimize the visual impact of the Facility by means of location, placement, height, screening, landscaping, and shall be compatible with existing architectural elements, building materials, other building characteristics, and the surrounding area. In addition to the other design standards of this Section, the following criteria shall be considered by the review authority in connection with its processing of any MUP, CUP, LTP, or ZC for a Telecom Facility: 1. Blending. The extent to which the proposed Telecom Facility blends into the surrounding environment or is architecturally compatible and integrated into the structure. 2. Screening. The extent to which the proposed Telecom Facility is concealed or screened by existing or proposed new topography, vegetation, buildings or other structures. 3. Size. The total size of the proposed Telecom Facility, particularly in relation to surrounding and supporting structures. 4. Location. Proposed Telecom Facilities shall be located so as to utilize existing natural or man- made features in the vicinity of the Facility, including topography, vegetation, buildings, or Planning Commission Resolution No. 11 of 21 other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop. 5. Collocation. In evaluating whether the Collocation of a Telecom Facility is Feasible, the criteria listed in 1 -4 above shall be used to evaluate the visual effect of the combined number of Facilities at the proposed location. B. Public View Protection. All new or modified Telecom Facilities, including those facilities considered through an administrative process, shall comply with Section 20.30.100 (Public View Protection). Additionally, potential impacts to public views that are not identified by General Plan Policy NR 20.3 (Public Views) shall be considered and evaluated consistent with Section 20.30.100. C. Height. 1. The Planning Commission or City Council may approve or conditionally approve a CUP for a Telecom Facility that exceeds the maximum height limit for the zoning district in which the Facility is located provided it does not exceed the maximum height limit by 15 feet after making all of the required findings in Section 20.49.060(1) (Permit Review Procedures). 2. All Telecom Facilities shall comply with height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport Environs Land Use Plan for John Wayne Airport and Airport Land Use Commission Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. 3. Telecom Facilities installed on streetlights, Utility Poles, Utility Towers or other similar structures within the public right -of -way shall not exceed 35 feet in height above the finished grade. 4. Telecom Facilities may be installed on existing Utility Poles or Utility Towers that exceed 35 feet above the finished grade where the purposes of the existing Utility Pole or Utility Tower is to carry electricity or provide other wireless data transmission provided that the top of the proposed Antennas do not extend above the top of the Utility Pole or Utility Tower. 5. Telecom Facilities disguised as flagpoles may be installed provided they meet applicable height limits for flagpoles provided in Section 20.30.060. D. Setbacks. Proposed Telecom Facilities shall comply with the required setback established by the development standards for the zoning district in which the Facility is proposed to be located. Setbacks shall be measured from the any part of the Facility closest to the applicable lot line or structure. E. Design Techniques. Design techniques shall result in the installation of a Telecom Facility that is in harmony and scale with the surrounding area, screens the installation from view, and prevents the Facility from visually dominating the surrounding area. Design techniques may include the following: Planning Commission Resolution No. 12 of 21 1. Screening elements to disguise, or otherwise hide the Telecom Facility from view from surrounding uses. 2. Painting and /or coloring the Telecom Facility to blend into the predominant visual backdrop. 3. Siting the Telecom Facility to utilize existing features (buildings, topography, vegetation, etc.) to screen or hide the Facility. 4. Utilizing simulated natural features (trees, rocks, etc.) to screen or hide the Telecom Facility. 5. Providing Telecom Facilities of a size that, as determined by the City, is not visually obtrusive such that any effort to screen the Facility would not create greater visual impacts than the Facility itself. 6. To the greatest extent practicable, new Class 4 Facilities shall be designed and sited to allow for the collocation of one additional Telecom Operator. F. Screening Standards. For Collocation installations, the screening method shall be materially similar to those used on the existing Telecom Facility, and shall not diminish the screening of the Facility. If determined necessary by the review authority, use of other improved and appropriate screening methods may be required to screen the Antennas and Support Equipment from public view. The Following is a non - exclusive list of potential design and screening techniques that must be considered for all Facility installations: 1. For Class 1 (Stealth /Screened) Installations: a. All Telecom Facility components, including all Antennas, Antenna panels, cables, wires, conduit, mounting brackets, and Support Equipment, shall be fully screened, and mounted either inside the building or structure, or behind screening elements and not on the exterior face of the building or structure. b. Screening materials shall match in color, size, proportion, style, and quality with the exterior design and architectural character of the structure and the surrounding visual environment. If determined necessary by the reviewing authority, screening to avoid adverse impacts to views from land or buildings at higher elevations shall be required. c. When a Telecom Facility is proposed within an existing or new architectural feature such as a steeple, religious symbol, tower, cupola, clock tower, sign tower, etc., the Facility shall blend architecturally compatible with the existing structure or building. 2. For Class 2 (Visible) Installations: a. Building or structure mounted Antennas shall be painted or otherwise coated to match or complement the predominant color of the structure on which they are mounted and shall be compatible with the architectural texture and materials of the building to which the Planning Commission Resolution No. 13 of 21 Antennas are mounted. No cables, wires, conduit, mounting brackets or any other associated support equipment shall be visible. b. All Antenna components and Support Equipment shall be treated with exterior coatings of a color and texture to match the predominant visual background and /or adjacent architecture so as to visually blend in with the surrounding development. Subdued colors and non - reflective materials that blend with surrounding materials and colors shall be used. 3. For Class 3 (Public Right -of -Way) Installations: a. Whenever Feasible, new Antennas proposed to be installed in the public right -of -way shall be placed on existing utility structures, streetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles, or Utility Poles shall be screened by means of canisters, radomes, shrouds other screening measures whenever Feasible, and treated with exterior coatings of a color and texture to match the existing pole. b. New or replacement vertical structures may be allowed where approved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed provided they match existing or planned poles within the area. c. If Antennas are proposed to be installed without screening, they shall be flush- mounted to the pole and shall be treated with exterior coatings of a color and texture to match the pole. 4. For Class 4 (Freestanding Structure) Installations: a. The installation of new Lattice Towers or Monopoles with visible antennas or Antenna Arrays is strongly discouraged. Preferred Monopole designs include fully screened Antennas without visible brackets, cables, or conduit. Additionally, any Lattice Tower or Monopole should be sited in the least obtrusive location as possible. b. The construction of new freestanding structures such as signs, monoliths, pyramids, light houses, or other similar vertical structures shall be designed and sited to appropriately complement a site and screen all elements of the Telecom Facility. c. The installation of artificial rocks shall match in scale and color other with rock outcroppings in the general vicinity of the proposed site. An artificial rock screen may not be considered appropriate in areas that do not have natural rock outcroppings. d. The installation of artificial trees or shrubbery is strongly discouraged. When an artificial tree or shrubbery is proposed, it shall be designed for and located in a setting that is compatible with the proposed screening method. Such installations shall be situated so as Planning Commission Resolution No. 14 of 21 to utilize existing natural or manmade features including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening. All Antennas and Antenna supports shall be contained within the canopy of the tree design or other vegetation comparable to that being replicated by the proposed screening elements. Finally, the addition of new comparable living vegetation may be necessary to enhance the artificial tree or shrubbery screening elements. e. Flagpoles shall not exceed 24 inches in width at the base of the flagpole and also shall not exceed 20 inches in width at the top of the flagpole. 5. For Class 5 (Temporary) Installations: A temporary Telecom Facility installation may require screening to reduce visual impacts depending on the duration of the permit and the setting of the proposed site. If screening methods are determined to be necessary by the review authority, the appropriate screening methods will be determined through the permitting process reflecting the temporary nature of the Facility. 6. Support Equipment. All Support Equipment associated with the operation of any Telecom Facility shall be placed or mounted in the least visually obtrusive location practicable, and shall be screened from view. a. Installations on Private Property. The following is a non - exclusive list of potential screening techniques for Telecom Facilities located on private property: (1) Building- Mounted Telecom Facilities. For building or structure - mounted Antenna installations, Support Equipment for the Facility may be located inside the building, in an underground vault, or on the roof of the building that the Facility is located on, provided that both the equipment and any screening materials are architecturally compatible and /or painted the color of the building, roof, and /or surroundings thereby providing screening. If placed in an underground vault, flush -to -grade vents, or vents that extend no more than 24 inches above the finished grade and are screened from public view may be incorporated. (2) Roof - Mounted Telecom Facilities. All screening materials for roof - mounted Facilities shall be of a quality and design compatible with the architecture, color, texture and materials of the building to which it is mounted. If determined necessary by the review authority, screening to avoid adverse impacts to views from land or buildings at higher elevations shall be required. (3) Freestanding Telecom Facilities. For freestanding Facilities installations, not mounted on a building or structure, Support Equipment for the Facility may be visually screened by locating the Support Equipment in a fully enclosed building, in an underground vault, or in a security enclosure consisting of walls and /or landscaping to effectively screen the Support Equipment at the time of installation. Planning Commission Resolution No. 15 of 21 (4) All wall and landscaping materials shall be selected so that the resulting screening will be visually integrated with the architecture and landscape architecture of the surroundings. (5) Screening enclosures may utilize graffiti- resistant and climb- resistant vinyl -clad chain link with a "closed- mesh" design (i.e. one -inch gaps) or may consist of an alternate enclosure design approved by the review authority. In general, the screening enclosure shall be made of non - reflective material and painted to blend with surrounding materials and colors. (6) If placed in an underground vault, flush -to -grade vents, or alternatively, vents that extend no more than 24 inches above the finished grade and are screened from public view may be utilized. b. Installations in a Public Right -of -Way. The following is a non - exclusive list of potential screening techniques for Telecom Facilities located in a public right -of -way: (1) Where the existing utilities services (e.g., telephone, power, cable TV) are located underground, the Support Equipment shall be placed underground, consistent with Chapter 13.20. Flush -to -grade underground vault enclosures, including flush -to -grade vents, or vents that extend no more than 24 inches above the finished grade and are screened from public view may be incorporated. Electrical meters required for the purpose of providing power for the proposed Telecom Facility may be installed above ground on a pedestal in a public right -of -way. (2) Support equipment approved to be located above ground in a public right -of -way shall be painted or otherwise coated to be visually compatible with the existing or replacement pole, lighting and /or traffic signal equipment without substantially increasing the width of the structure. (3) All transmission or amplification equipment such as remote radio units, tower mounted amplifiers, and surge suppressors shall be mounted inside the streetlight pole without increasing the pole diameter or shall be installed in the vault enclosure supporting the Facility. G. Night Lighting. Telecom Facilities shall not be lighted except for security lighting at the lowest intensity necessary for that purpose or as may be recommended by the U.S. Flag Code. Such lighting shall be shielded so that direct illumination does not directly shine on nearby properties. The review authority shall consult with the Police Department regarding proposed security lighting for Facilities on a case -by -case basis. H. Signs and Advertising. No advertising signage or identifying logos shall be displayed on any Telecom Facility except for small identification, address, warning, and similar information plates. Such information plates shall be identified in the telecom application and shall be subject to approval by the review authority. Signage required by state or federal regulations shall be allowed in its smallest permissible size. Planning Commission Resolution No. 16 of 21 I. Nonconformities. A proposed Telecom Facility shall not create any new or increased nonconformity as defined in the Zoning Code, such as, but not limited to, a reduction in and /or elimination of, required parking, landscaping, or loading zones unless relief is sought pursuant to applicable Zoning Code procedures. J. Maintenance. The Telecom Operator shall be responsible for maintenance of the Telecom Facility in a manner consistent with the original approval of the Facility, including but not limited to the following: 1. Any missing, discolored, or damaged screening shall be restored to its original permitted condition. 2. All graffiti on any components of the Telecom Facility shall be removed promptly in accordance the Newport Beach Municipal Code. 3. All landscaping required for the Telecom Facility shall be maintained in a healthy condition at all times, and shall be promptly replaced if dead, dying, or damaged. 4. All Telecom Facilities shall be kept clean and free of litter. 5. All equipment cabinets shall display a legible contact number for reporting maintenance problems to the Telecom Operator. 6. If a flagpole is used for a Telecom Facility, flags shall be flown and shall be properly maintained at all times. The use of the United States flag shall comply with the provisions of the U.S. Flag Code (4 U.S.C. § 1 etseq.). 20.49.060 — Permit Review Procedures A. Application Procedures. Applications for Telecom Facilities shall be subject to Chapters 20.50 (Permit Application Filing and Processing), 20.52 (Permit Review Procedures), and 20.54 (Permit Implementation, Time Limits, and Extensions) unless otherwise modified by this Section. Applications shall be processed consistent with the FCC Declaratory Ruling FCC 09 -99 ( "Shot Clock ") deadlines or as redefined in the future by applicable State or federal law. All costs associated with the permit application review shall be the responsibility of the applicant, including any expense incurred for any outside third -party technical or legal services in connection with the application. B. Installations in the Public Right -of -Way. All Telecom Facilities proposed to be located in the public right -of way shall comply with the provisions of Title 13. C. Application Submission Requirements for Telecom Facilities on City -owned or City -held Trust Properties. Prior to the submittal for any application for any Facility located on any City -owned property or City -held trust property, the applicant shall first obtain written authorization from the City Manager or its designee to submit an application. Planning Commission Resolution No. 17 of 21 D. Permit Required. All Telecom Facilities shall obtain a MUP, CUP, LTP, or ZC if not prohibited by subsection 20.49.040(B) as provided in Table 4 -1. Notwithstanding permits identified in Table 4 -1, any application for a Facility that proposes to exceed the maximum height limit of the applicable zoning district in which the Facility is located shall require the issuance of a CUP by the Planning Commission. Table 4 -1 Permit Requirement for Telecom Facilities Facility Class Permit Class 1 ZC Class 2 MUP Class 3 MUP Class CUP Class 5 LTP E. Review of Collocated Facilities. Notwithstanding any provision of this Chapter to the contrary, pursuant to California Government Code section 65850.6 (as amended or superseded), the addition of a new Facility to an existing Facility resulting in the establishment of a Collocated Telecom Facility shall be allowed without a discretionary review provided it meets section 20.49.090. If such a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6 and Section 20.49.090, the Facility shall be reviewed pursuant the review procedures provided in Table 4 -1. F. Emergency Communications Review. At the time an application is submitted to the Community Development Department, a copy of the Plans, Map, and Emission Standards shall be sent to the Chief of the Newport Beach Police Department. The Police Department or its designee shall review the plan's potential conflict with emergency communications. The review may include a pre - installation test of the Telecom Facility to determine if any interference exists. If the Police Department determines that the proposal has a high probability that the Facility will interfere with emergency communications devices, the applicant shall work with the Police Department to avoid interference. G. Public Notice and Public Hearing Requirements. An application for a MUP, CUP or LTP shall require public notice and a public hearing in accordance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all Facilities requiring discretionary review: 1. General. The review authority may approve or conditionally approve an application for a Telecom Facility only after first finding each of the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits), and each of the following: Planning Commission Resolution No. 18 of 21 a. The proposed Telecom Facility is visually compatible with the surrounding neighborhood. b. The proposed Telecom Facility complies with height, location and design standards, as provided for in this Chapter. c. An alternative site(s) located further from a Residential District, Public Park or Public Facility cannot Feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. d. An alternative plan that would result in a higher priority Facility Class category for the proposed Facility is not available or reasonably Feasible and desirable under the circumstances. 2. Findings to Increase Height. The Planning Commission may approve, or conditionally approve an application for a Telecom Facility which includes a request to exceed the maximum height limit for the zoning district in which the Facility is located up to a maximum of 15 feet only after making each of the following findings in addition to the required findings above, as well the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits): a. The increased height will not result in undesirable or abrupt scale changes or relationships being created between the proposed Telecom Facility and existing adjacent developments or public spaces. b. Establishment of the Telecom Facility at the requested height is necessary to provide service. 20.49.070 — Permit Implementation, Time Limits, Extensions, and Appeals A. The process for implementation or "exercising' of permits issued for a Telecom Facility, time limits, and extensions, shall be in accordance with Chapter 20.54 (Permit Implementation, Time Limits, and Extensions). B. Appeals. Any appeal of the decision of the review authority of an application for a Telecom Facility shall be processed in compliance with Chapter 20.64 (Appeals). 20.49.080 — Agreement for Use of City -Owned or City -Held Trust Property When applying for a permit pursuant to this Chapter, all Telecom Facilities located on City -owned or City -held trust property shall require a license agreement approved as to form by the City Attorney, and as to substance (including, but not limited to, compensation, term, insurance requirements, bonding requirements, and hold harmless provisions) by the City Manager, consistent with provisions in the City Council Policy Manual. Planning Commission Resolution No. 19 of 21 Prior to entering into an agreement, the applicant shall obtain a MUP, CUP, LTP or ZC. Upon the issuance of a MUP, CUP, LTP or ZC, as required, and upon entering into an agreement, the applicant shall obtain any and all necessary ministerial permits, including, encroachment permits for work to be completed in the public right -of -way, and building permits, etc. All costs of said permits shall be at the sole and complete responsibility of the applicant. All work shall be performed in accordance with the applicable City standards and requirements. 20.49.90 — Modification and Collocation of Existing Telecom Facilities Notwithstanding any provision in this Chapter of the Zoning Code, a request to modify an existing Facility that involves the Collocation of new transmission equipment, the removal of existing transmission equipment, or the replacement of existing transmission equipment shall be subject to a ministerial review and approval of a ZC without processing any discretionary permit provided that such modification does not substantially change the existing Facility from the original permit for the Facility. A substantial change means a single change, or series of changes overtime, that exceeds five percent (5%) of the physical dimensions of the original approved Telecom Facility, or as defined by applicable State or federal law in the future. Each application submitted under this section for a modification or collocation to an existing Telecom Facility shall be accompanied by: 1. A detailed description of the proposed modifications to the existing Telecom Facility(ies); 2. A photograph or description of the Telecom Facility as originally constructed, if available; a current photograph of the existing Facility; and, a graphic depiction of the Facility after modification showing all relevant dimensions; 3. A detailed description of all construction that will be performed in connection with the proposed modification; and 4. A written statement signed and stamped by a professional engineer, licensed and qualified in California, attesting that the proposed modifications do not constitute a substantial change of the existing permitted Facility. Any permit issued will be conditioned upon, and may be revoked, and the Telecom Facility shall be required to be removed or restored to its pre- modification condition if any material statement made with respect to the Facility application is false or the modifications as actually made would have required a discretionary review had the plan for the Facility depicted the modifications. 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report At all times, the operator shall ensure that its Telecom Facilities shall comply with the most current regulatory, operations standards, and radio frequency emissions standards adopted by the FCC. The operator shall be responsible for obtaining and maintaining the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and Planning Commission Resolution No. 20 of 21 standards. Said information shall be made available by the operator upon request at the discretion of the Community Development Director. Within thirty (30) days after installation of a Telecom Facility, a radio frequency (RF) compliance and emissions report prepared by a qualified RF engineer acceptable to the City shall be submitted in order to demonstrate that the Facility is operating at the approved frequency and complies with FCC standards for radio frequency emissions safety as defined in 47 C.F.R. § 1.1307 et seq. Such report shall be based on actual field transmission measurements of the Facility operating at its maximum effective radiated power level, rather than on estimations or computer projections. If the report shows that the Facility does not comply with the FCC's 'General Population /Uncontrolled Exposure' standard as defined in 47 C.F.R. § 1.1310 Note 2 to Table 1, the Director shall require use of the Facility be suspended until a new report has been submitted confirming such compliance. Upon any proposed increase of at least ten percent (10 %) in the effective radiated power or any proposed change in frequency use of the Telecom Facility by the Telecom Operator, the Telecom Operator shall be required to provide an updated, certified radio frequency (RF) compliance and RF emissions safety report. 20.49.110 — Right to Review, Revoke or Modify a Permit The reservation of right to review any permit for a Telecom Facility granted by the City is in addition to, and not in lieu of, the right of the City to review and revoke or modify any permit granted or approved hereunder for any violations of the conditions imposed on such permit. 20.49.120 — Removal of Telecom Facilities A. Discontinued Use. Any Telecom Operator who intends to abandon or discontinue use of a Telecom Facility must notify the Community Development Director by certified mail no less than thirty (30) days prior to such abandonment or discontinuance of use. The Telecom Operator or owner of the affected real property shall have ninety (90) days from the date of abandonment or discontinuance, or a reasonable additional time as may be approved by the Community Development Director, within which to complete one of the following actions: 1. Reactivate use of the Telecom Facility. 2. Transfer the rights to use the Telecom Facility to another Telecom Operator and the Telecom Operator immediately commences use within a reasonable period of time as determined by the Community Development Director. 3. Remove the Telecom Facility and restore the site. B. Abandonment. Any Telecom Facility that is not operated for transmission and /or reception for a continuous period of ninety (90) days or whose Telecom Operator did not remove the Facility in accordance with Subsection A shall be deemed abandoned. Upon a finding of abandonment, the City shall provide notice to the Telecom Operator last known to use such Facility and, if Planning Commission Resolution No. 21 of 21 applicable, the owner of the affected real property, providing thirty days from the date of the notice within which to complete one of the following actions: 1. Reactivate use of the Telecom Facility. 2. Transfer the rights to use the Telecom Facility to another Telecom Operator who has agreed to reactivate the Facility within 30 days of the transfer. 3. Remove the Telecom Facility and restore the site. C. Removal by City. 1. The City may remove an abandoned Telecom Facility, repair any and all damage to the premises caused by such removal, and otherwise restore the premises as is appropriate to be in compliance with applicable codes at any time after thirty (30) days following the notice of abandonment. 2. If the City removes an abandoned Telecom Facility, the City may, but shall not be required to, store the removed Facility or any part thereof. The owner of the premises upon which the abandoned Facility was located and all prior operators of the Facility shall be jointly liable for the entire cost of such removal, repair, restoration and storage, and shall remit payment to the City promptly after demand therefore is made. In addition, the City Council, at its option, may utilize any financial security required in conjunction with granting the telecom permit as reimbursement for such costs. Also, in lieu of storing the removed Facility, the City may convert it to the City's use, sell it, or dispose of it in any manner deemed by the City to be appropriate. D. City Lien on Property. Until the cost of removal, repair, restoration, and storage is paid in full, a lien shall be placed on the abandoned personal property and any real property on which the Telecom Facility was located for the full amount of the cost of removal, repair, restoration and storage. The City Clerk shall cause the lien to be recorded with the Orange County Recorder, with the costs of filing, processing, and release of such City Lien being added to the other costs listed in this subsection. ATTACHMENT PC -2 Update to draft Chapter 20.49 with marked changes Page Intentionally Blank Chapter 20.49 - Wireless Telecommunications Facilities Sections 20.49.010 - Purpose 20.49.020 - Effect of Chapter r . PFA pFeyigionfi 20.49.030 - Definitions 20.49.040 -Avail-able TerhRelegy — LeGatleaTelecom Facility Preferences and Prohibited Locations 20.49.050 - General Development and Design Standards 20.49.060 - Permit Review Procedures 20.49.858070 - Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 - Agreement for Use of City -owned or City -held Trust Property 20.49.4-98090- Modification and Collocation of Existing Telecom Facilities 20.49.100 - Operational and Radio Frequency Compliance and Emissions Report 20.49.4-29110 - Right to Review-e4,, Revoke or Modify a Permit 20.49.120 - Removal of Telecom Facilities 20.49.010 - Purpose A. The purpose of this Chapter is to provide for the installation, modification, operation and maintenance of wireless telecommunication facilities ( "Telecom Facilities') on public and private property consistent with State and federal law while ensuring public safety, reducing the visual effects of Telecom eq eFiJacilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the visual impacts of e the leeatiAR Af nRteRR iR RAR ..:dential 2) GelleeatieR at Telecom Facilities ..,heFe ;_;d_ y FSe vi -gu..I :.„pacts on the community and PUbl,,..,:eWS a. ....:..:....:...... B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and thereby reduce their visual impact on the community. &C The provisions of this Chapter are not intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecom services. This Chapter shall be applied to providers, operators, and maintainers of wireless services regardless of whether authorized by State or federal regulations. This Chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecom services. Page 11 20.49.020 -Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities providing wireless voice and /or data transmission such as, but not limited to, cell phone, internet, and radio relay stations. B. Permit and /or Agreement Required. Prior to construction or modification of any Telecom Facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use Permit (CUP), Limited Term Permit (LTP), or Zoning Clearance (ZC`, depeRd'RT the ffelaesed ',,eati .. Antenna Class, �d FAethF;d Af °� " • °��,� in accordance with Section 20.49.979060 (Permit Review Procedures). Applicants who obtain a MUP, CUP, LTP, or ZC (and an encroachment permit, if required) for any Telecom Facility approved to be located on any City -owned property or City -held Trust property, shall enter into an agreement prepared and executed by the City Manager or its designee prior to construction of the Facility, consistent with Section 20.49.999080 (Agreement for Use of City -owned or City - held Trust Property). C. Exempt Facilities. The following types of facilities are exempt from the provisions of this Chapter: 1. Amateur radio antennas and receiving satellite dish antennas, and citizen band radio antennas regulated by Section 20.48.190 (Satellite Antennas and Amateur Radio Facilities). 2. Dish and other antennas subject to the FCC Over- the -Air Reception Devices ( "OTARD ") rule, 47 C.F.R. § 1.4000 that are designed and used to receive video programming signals from (a) direct broadcast satellite services, or (b) television broadcast stations, or (c) for wireless cable service. 3. During an emergency, as defined by Title 2 of the NBMC, the City Manager, Director of Emergency Services or Assistant Director of Emergency Services shall have the authority to approve the placement of a Telecom Facility in any district on a temporary basis not exceeding ninety (90) calendar days from the date of authorization. Such authorization may be extended by the City on a showing of good cause. 4. Facilities exempt from some or all of the provisions of this Chapter by operation of State or federal law to the extent so determined by the City. 5. Systems installed or operated at the direction of the City or its contractor. 6. Systems installed entirely within buildings for the sole purpose of providing wireless telecommunications qPF-deeTor data transmission services to building occupants. D. Other Regulations. Notwithstanding the provisions of this Chapter, all Telecom Facilities within the City shall comply with the following requirements: Page 12 1. Rules, regulations, policies, or conditions in any permit, license, or agreement issued by a local, state or federal agency which has jurisdiction over the Telecom Facility. 2. Rules, regulations and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC). E. Regulations not in Conflict or Preempted. All Telecom Facilities within the City shall comply with the following requirements unless in conflict with or preempted by the provisions of this Chapter: 1. All applicable City design guidelines and standards. 2. Requirements established by any other provision of the Municipal Code and by any other ordinance and regulation of the City. F. Legal Nonconforming Facility. Any Telecom Facility that+swas lawfully constructed, erected, or approved prior to the ^ca^^«;.,^ date ^c this THIS CHAPTERI, that is operating in compliance with all applicable laws, and which Facility does not conform to the requirements of this Chapter shall be accepted and allowed as a legal nonconforming Facility if etheFWiSe ^. eved and ^r «.,, « ^a Legal nonconforming T,zler.AR; Facilities shall comply at all times with the laws, ordinances, aad- regulations any conditions of approval in effect at the time the apgl+ea>ieaFaciliA was deemed eampleteapproved, and any applicable federal and State laws as they may be amended or enacted, and shall at all times remply with @RY 69R&OGRS af appfevigLn the future. 20.49.030 — Definitions: For the purposes of this Chapter, the following definitions shall apply: A. Antenna. Antenna means a device used to transmit and /or receive radio or electromagnetic waves between earth and /or satellite -based systems, such as reflecting discs, panels, microwave dishes, whip antennas, Antennas, arrays, or other similar devices. B. Antenna Array. Antenna Array means Antennas having transmission and /or reception elements extending in more than one direction, and directional Antennas mounted upon and rotated through a vertical mast or tower interconnecting the beam and Antenna support structure, all of which elements are deemed to be part of the Antenna. C. Antenna Classes. ^R«^R ^,Base Station. Base Station means the electronic equipment and appurtenant Support Equipment at a Telecom Facility installed and operated by the Telecom Operator that together perform the initial signal transmission and signal control functions. A Base Station does not include the Antennas, Antenna support structure, or anv portion of Distributed Antenna System (DAS). D. City -owned or City -held Trust Property. Citv -owned or City -held Trust Property means all real property and improvements owned, operated or controlled by the City, other than the Page 13 Public right -of -way, within the City's iurisdiction, including but not limited to City Hall, Police and Fire facilities, recreational facilities, parks, beaches, libraries, monuments, signs, streetlights and traffic control standards. E. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. F. Distributed Antenna System, DAS. Distributed Antenna System (DAS) means a network of one or more Antennas and fiber optic nodes typically mounted to streetlight poles, or utility structures, which provide access and signal transfer services to one or more third -party wireless service providers. DAS also includes the equipment location, sometimes called a "hub" or "hotel" where the DAS network is interconnected with third -party wireless service providers to provide the signal transfer services. &G. Facility Classes. Facility Classes are Telecom Facilities and the attendant Support Equipment separated into the following distinct classes: 1. Class 1 (Stealth /Screened): a Facility with Antennas mounted on an existing or proposed non - residential building or other structure not primarily intended to be an antenna support structure where Antennas and Support Equipment, including the base station, are fully screened so that they are not visible to the general public. 2. Class 2 (Visible Antennas): a Facility with Antennas mounted on an existing non- residential building, structure, pole, light standard, Utility Tower, Wireless Tower and /or Lattice Tower. 3. Class 3 (Public Right -of -Way Installations): a Facility with Antennas installed on a structure located in the public right -of -way. 4. Class 4 (Freestanding Structure): a Facility with Antennas mounted on a new freestanding structure constructed for the sole or primary purpose of supporting the Telecom Facility. 5. Class 5 (Temporary): a Facility including associated Support Equipment that is installed at a site on a temporary basis pursuant to a Limited Term Permit. A Class 5 installation may also be installed in connection with a special event upon the approval of a Special Events Permit pursuant to Chapter 11.03 without a Limited Term Permit. • . .. Page 14 H. FCC. FCC means the Federal Communications Commission, the federal regulatory agency charged with regulating interstate and international communications by radio, television, wire, satellite, and cable. I. Feasible or Feasibly. Feasible or Feasibly means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal and technological factors. J. Lattice Tower. Lattice Tower means a freestanding open framework structure used to support Antennas, typically with three or four support legs of open metal crossbeams or crossbars. K. Monopole. Monopole means a single free - standing pole or pole -based structure solely used to act as or support a Telecom Antenna or Antenna Arrays. L. Operator or Telecom Operator. Operator or Telecom Operator means any person, firm, corporation, company, or other entity that directly or indirectly owns, leases, runs, manages, or otherwise controls a Telecom Facility or facilities within the City. The definition does not include a property owner(s) who leases property for a Telecom Facility. M. Public Right -of -Way. Public Right -of -Way or ( "PROW ") means the improved or unimproved surface of any street, or similar public way of any nature, dedicated or improved for vehicular, bicycle, and /or pedestrian related use. PROW includes public streets, roads, lanes, alleys, sidewalks, medians, parkways and landscaped lots. N. Stealth or Stealth Facility. Stealth or Stealth Facility means a Telecom Facility in which the Antenna, and the Support Equipment, are completely hidden from view in a monument, cupola, pole -based structure, or other concealing structure which either mimics, or which also serves as, a natural or architectural feature. Concealing structures which are obviously not such a natural or architectural feature to the average observer do not qualify within this definition. A fRIgPAn artificial tree is not a Stealth Facility. Page 15 1� 'Milo 111111141POWIll H. FCC. FCC means the Federal Communications Commission, the federal regulatory agency charged with regulating interstate and international communications by radio, television, wire, satellite, and cable. I. Feasible or Feasibly. Feasible or Feasibly means capable of being accomplished in a successful manner within a reasonable period of time, taking into account environmental, physical, legal and technological factors. J. Lattice Tower. Lattice Tower means a freestanding open framework structure used to support Antennas, typically with three or four support legs of open metal crossbeams or crossbars. K. Monopole. Monopole means a single free - standing pole or pole -based structure solely used to act as or support a Telecom Antenna or Antenna Arrays. L. Operator or Telecom Operator. Operator or Telecom Operator means any person, firm, corporation, company, or other entity that directly or indirectly owns, leases, runs, manages, or otherwise controls a Telecom Facility or facilities within the City. The definition does not include a property owner(s) who leases property for a Telecom Facility. M. Public Right -of -Way. Public Right -of -Way or ( "PROW ") means the improved or unimproved surface of any street, or similar public way of any nature, dedicated or improved for vehicular, bicycle, and /or pedestrian related use. PROW includes public streets, roads, lanes, alleys, sidewalks, medians, parkways and landscaped lots. N. Stealth or Stealth Facility. Stealth or Stealth Facility means a Telecom Facility in which the Antenna, and the Support Equipment, are completely hidden from view in a monument, cupola, pole -based structure, or other concealing structure which either mimics, or which also serves as, a natural or architectural feature. Concealing structures which are obviously not such a natural or architectural feature to the average observer do not qualify within this definition. A fRIgPAn artificial tree is not a Stealth Facility. Page 15 O. Support Equipment. Support Equipment means the physical, electrical and /or electronic equipment included within a Telecom Facility used to house, power, and /or contribute to the processing of signals from or to the Facility's Antenna or Antennas, including but not limited to a base station, cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters. Support Equipment does not include DAS, Antennas or the building or structure to which the Antennas or other equipment are attached. P. Telecom munication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends and /or receives wireless radio frequency signals or electromagnetic waves, including but not limited to directional, omni - directional and parabolic antennas, structures or towers to support receiving and /or transmitting devices, supporting equipment and structures, and the land or structure on which they are all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios /telephones and their associated transmitting antennas. Q. Utility Pole. Utility Pole means a single freestanding pole used to support services provided by a public or private utility provider. R. Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or steel pole used to support electric transmission facilities. S. Wireless Tower. Wireless Tower means any structure built for the sole or primary purpose of supporting Antennas used to provide wireless services authorized by the FCC. A Distributed Antenna System (DAS) installed pursuant to a Certificate of Public Convenience and Necessity (CPCN) issued by the California Public Utilities Commission on a water tower, utility tower, street light, or other structures built or rebuilt or replaced primarily for a purpose other than supporting wireless services authorized by the FCC, including any structure installed pursuant to California Public Utility Code Section 7901, is not a Wireless Tower for purposes of this definition. For an example only, a prior- existing street light standard which is replaced with a new street light standard to permit the addition of Antennas shall not be considered a Wireless Tower, but rather a replacement street light standard. 20.49.990 —'I aG;itinn040 – Telecom Facility Preferences= and Prohibited Locations A. Preferred Locations. To limit the adverse visual effects of and proliferation of new or individual Telecom Facilities in the City, the following list establishes the order of preference Of TPIPGRFR Facilities, from highest n Fity ISGRtiAR ,RGI to the most preferred (1) to 4R est-. ease preferred (41 1. Collocation of a new Facility at an existing Facility. 2. Class 1. E 3. Class 2. —Class 4. &4. Clagg 5 B. Prohibited Locations. Telecom Facilities are prohibited in the following locations: 1. On properties zoned for single -unit or two -unit residential development; including equivalent f- GPlanned Community District d85igRatieaor Specific Plan districts. 2. On properties zoned for multi -unit residential development and mixed -use development including equivalent Planned Community District or Specific Plan districts where the maximum allowable number of dwelling units is four (4) units. 3. In the Open Space (OS) zoning district, unless Telecom Facilities are collocated on an existing Utility Tower within a utility easement area, or collocated on an existing TzlPr.ARq Facility. 4. On traffic control standards (traffic signal poles). 20.49.060 50 – General Development and Design Standards- Page 17 w i el 4. On traffic control standards (traffic signal poles). 20.49.060 50 – General Development and Design Standards- Page 17 A. General Criteria. All Telecom Facilities shall employ design techniques to minimize visual impacts and provide appropriate screening to result in the least visually intrusive means of providing the service. Such techniques shall be employed to make the installation, appearance and operations of the Tplpegm Facility as visually inconspicuous as pees� practicable. To the greatest extent Feasible, T, elpeem Facilities shall be designed to minimize the visual impact of the T�clprnm Facility by means of location, placement, height, screening, landscaping, and shall be compatible with existing architectural elements, building materials, other building characteristics, and the surrounding area. In addition to the other design standards of this Section, the following criteria shall be considered by the review authority in connection with its processing of any MUP, CUP, LTP, or ZC for a Telecom Facility: 1. Blending. The extent to which the proposed Telecom Facility blends into the surrounding environment or is architecturally compatible and integrated into the structure. 2. Screening. The extent to which the proposed Telecom Facility is concealed or screened by existing or proposed new topography, vegetation, buildings or other structures. 3. Size. The total size of the proposed Telecom Facility, particularly in relation to surrounding and supporting structures. 4. Location. Proposed Telecom Facilities shall be located so as to utilize existing natural or man -made features in the vicinity of the TplprAFA Facility, including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop. 5. Collocation. In evaluating whether the Collocation of a Telecom Facility is Feasible, the criteria listed in 1 -4 above shall be used to evaluate the visual effect of the combined number of Facilities at the proposed location. B. Public View Protection. All new or modified Telecom Facilities ORYSIViRg a site adjaeeRt W including those facilities considered through an administrative process, shall comply with Section 20.30.100 (Public View Protection). Additionally, potential impacts to public views that are not identified publie view p9iRt 9F GGFFmd9F, ideR °F° by General Plan Policy NR 20.3 (Public Views-�l shall be Fi-vie• •^•' •^ evaluate the potential nApaet •e publie Yme-yisconsidered and evaluated consistent with Section 20.30.100 (°blb"G VieW PF9tee`i9R' C. Height. E �1. A....II...,F�....� F... ♦I... �..�F..II.. ♦.......F T..I... -..... C....�liF�..� .. ...I F., L..... ....F... fL..... the base height IiFnit f9F the ;ERRORO 6106406t iR WhiGh the TP'PGRFn PAGility OS 19CEIted Shall be subjeet to H- Vie••• ;-;Rd RrtiAR by the PL,....,..,. G,..,.....:.."... The Planning Commission or City Council may approve or conditionally approve a CUP for a Telecom Facility tethat exceeds the maximum height limit for the zoning district in which the Facility is located provided it does not exceed the basemaximum height limit by 15 feet after making all of the required findings in Section 20.49.87814060 I (Permit Review Procedures). 2. All Telecom Facilities shall comply with ARtPRRa height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport Environs Land Use Plan /AC�.�for John Wayne Airport and Airport Land Use Commission (ALWG) Review Requirements) as may be in force at the time the Telecom Facility is permitted or modified. SII�T7RSMIMM i7 TR7 S7TlSA 117LTR1�7C . 5 3. Telecom Facilities installed on °'Fee"igh' StandaF streetlights, Utility Poles, Utility Towers or other similar structures within the public right -of -way shall not exceed 35 feet in height above the finished grade. 9-4. Telecom Facilities may be installed on existing Utility Poles or Utility Towers that exceed 35 feet above the finished grade where the purposes of the existing Utility Pole or Utility Tower is to carry electricity or provide other wireless data transmission provided that the top of the A.Rtt °;tee; proposed Antennas do not extend above the top of the Utility Pole or Utility Tower. 5. Telecom Facilities ^ ^ ~`^ disguised as flagpoles may be installed mprovided they meet applicable height ^F 45 fpRlimits for flagpoles provided in Section 20.30.060. D. Setbacks. Proposed Telecom Facilities shall comply with the required setback established by the development standards for the zoning district in which the T-P'PrAFA Facility is proposed to be located. Setbacks shall be measured from the any of the TeIPF;Rm Facility closest to the applicable lot line or structure. E. Design Techniques. Design techniques shall result in the installation of a Telecom Facility that is in harmony and scale with the surrounding area, 4k[esscreens the installation from pi:edemiRaRt ,; fFam nalRR picepeFtiesview, and prevents theme plprztwn Facility from visually dominating the surrounding area. Design techniques may include the following: `EM 1. Screening elements to disguise, or otherwise hide the Telecom Facility from view from surrounding uses. 2. Painting and /or coloring the Telecom Facility to blend into the predominant visual backdrop. 3. Siting the Telecom Facility to utilize existing features (buildings, topography, vegetation, etc.) to screen or hide the T, elpre„rFacility. 4. Utilizing simulated natural features (trees, rocks, etc.) to screen or hide the Telecom Facility. 5. Providing Telecom Facilities of a size that, as determined by the City, is not visually obtrusive such that any effort to screen the Teleeem Facility would not create greater visual impacts than the T,tlpea„rFacility itself. .6. To the greatest extent practicable, new Class 4 Facilities shall be designed and sited to allow for the collocation of one additional Telecom Operator. F. Screening Standards. For Collocation installations, the screening method shall be materially similar to those used on the existing Telecom Facility, and shall not diminish the screening of the Tpler.RFA Facility. If determined necessary by the review authority, use of other improved and appropriate screening methods may be required to screen the Antennas and Support Equipment from public view. The Following is a non - exclusive list of potential design and screening techniques that SNeeldmust be considered for all Facility installations: 1. For Class 1 (Stealth /Screened) AInstallations: a. All Telecom Facility components, including all Antennas, Antenna panels, cables, wires, conduit, mounting brackets, and Support Equipment, shall be fully screened, and mounted either inside the building or structure, or behind screening elements and not on the exterior face of the building or structure. b. Screening materials shall match in color, size, proportion, style, and quality with the exterior design and architectural character of the structure and the surrounding visual environment. If determined necessary by the reviewing authority, screening to avoid adverse impacts to views from land or buildings at higher elevations shall be required. c. In Ad Mt FR1gq ...L...... the Antenna; and c....,.eq Equipment ... «..II...JWheil a Telecom Facility is proposed within aan existing or new fFeestan. iRg s«.,,,.«,,., (aR architectural feature such as a steeple, religious symbol, tower, cupola, clock tower, sign tower, etc +, the �c 4F� *n a4a#9RFacility shall blend in the ...,.,a,....:......« *".architecturally compatible with the existing structure or building. Page 110 2. For Class 2 (Visible) ARtPRR;; Installations: a. Building or structure mounted Antennas shall be painted or otherwise coated to match or complement the predominant color of the structure on which they are mounted and shall be compatible with the architectural texture and materials of the building to which the Antennas are mounted. No cables -,-m4 wires, conduit, mounting brackets or any other associated support equipment oF wiFeTshall be visible c.,,w...l. aye I.ele;A -F AF thP- q:.JP Af the A.,+,,mmi;.. b. All Antenna components and Support Equipment shall be treated with exterior coatings of a color and texture to match the predominant visual background and /or adjacent architecture so as to visually blend in with the surrounding development. Subdued colors and non - reflective materials that blend with surrounding materials and colors shall be used. 3. For Class 3 (Public Right -of -Way) AT RteRRa Installations: a. Whenever Feasible, new Antennas proposed to be installed in the public right -of- way shall be placed on existing 9F •^^I,G^R^^+ utility structures, 404 +streetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles, +...cg,,. ^^+. ^I tandaFGI. or Utility Poles shall be screened by means of canisters, radomes, shrouds other screening measures whenever Feasible, and treated with exterior coatings of a color and texture to match the existing pole. b. New or replacement vertical structures may be allowed where approved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed provided they match existing or planned poles within the area. b-c.lf Antennas are proposed to be installed without screening, they shall be flush - mounted to the pole and shall be treated with exterior coatings of a color and texture to match the exiStiagpole. if a 06 W aR the shall be G. Rew pale PF9pesed Feplaee existing pale, FeplaeemeRt Pale with the sizee, shape, style and design ef the existing pele, ineluding any 4. For Class 4 (Freestanding Structure) Aga Installations: a. F a false .eek the pFepe ^ J The installation of new Lattice Towers or Monopoles with visible antennas or Antenna Arrays is strongly discouraged. Preferred Monopole designs include fully screened Antennas without visible brackets, cables, Page 111 or conduit. Additionally, any Lattice Tower or Monopole should be sited in the least obtrusive location as possible. b. The construction of new freestanding structures such as signs, monoliths, pyramids, light houses, or other similar vertical structures shall be designed and sited to appropriately complement a site and screen Beall elements of the Telecom Facility. a.c.The installation of artificial rocks shall match in scale and color other with rock outcroppings in the general vicinity of the proposed site. A- falseAn artificial rock screen may not be considered appropriate in areas that do not have natural rock outcroppings. b-d . The installation of a false tFee (seskAs 191A VithAIA limitat:ien -a reer�epl+�eartificial trees or wenepa'w, BF false shrubbery} is strongly discouraged. When an artificial tree or shrubbery is proposed, it shall be designed for and located in a setting that is compatible with the proposed screening method. Such installations shall be situated so as to utilize existing natural or manmade features including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening. PRF 494 *.,.,.. . hFUb eF All Antennas and Antenna supports shall be contained within the canopy of the tree design-,-aad or other vegetation comparable to that being replicated lRrb the proposed 9t F1_1 41FP shall be ,aleR* the ...A to ViCiRity 9f the Rescreening elements. Finally, the addition of new comparable living vegetation may be necessary to enhance the falseartificial tree or shrubbery seFeeR rescreening elements. Fe.PAF iAS*a" ; *",..q of a flagpele, the pe4e lagpoles shall not exceed 24 inches in width at the base of the flagpole and also shall not exceed 20 inches in width at the top of the flagpole. 5. For Class 5 (Temporary) ^Installations: A temporary Telecom Facility installation may require screening to reduce visual impacts depending on the duration of the permit and the setting of the proposed site. If screening methods are determined to be necessary by the review authority, the appropriate screening methods will be determined through the permitting process reflecting the temporary nature of the Tplergm rFacility. 6. Support Equipment. All Support Equipment associated with the operation of any Telecom Facility shall be placed or mounted in the least visually obtrusive location pessiblepracticable, and shall be screened from view. a. Installations on Private Property. The following is a non - exclusive list of potential screening techniques for Telecom Facilities located on private property: Page 112 (1) Building- Mounted Telecom Facilities. For building or structure - mounted Antenna installations, Support Equipment for the Telpeerm Facility may be located inside the building, in an underground vault, or on the roof of the building that the Tplpr.gm Facility is located on, provided that both the equipment and any screening materials are architecturally compatible and /or painted the color of the building, roof, and /or surroundings thereby providing screening. If placed in an underground vault, flush -to -grade vents, or vents that extend no more than 24 inches above the finished grade and are screened from public view may be incorporated. (2) Roof - Mounted Telecom Facilities. All screening materials for roof - mounted Trplesgm Facilities shall be of a quality and design compatible with the architecture, color, texture and materials of the building to which it is mounted. If determined necessary by the review authority, screening to avoid adverse impacts to views from land or buildings at higher elevations shall be required. (3) Freestanding Telecom Facilities. For freestanding Telprgm rFacilities installations, not mounted on a building or structure, Support Equipment for the T�elppe,n Facility may be visually screened by locating the Support Equipment in a fully enclosed building, in an underground vault, or in a security enclosure consisting of walls and /or landscaping to effectively screen the Support Equipment at the time of installation. (4) All wall and landscaping materials shall be selected so that the resulting screening will be visually integrated with the architecture and landscape architecture of the surroundings. (5) Screening enclosures may utilize graffiti- resistant and climb- resistant vinyl -clad chain link with a "closed- mesh" design (i.e. one -inch gaps) or may consist of an alternate enclosure design approved by the review authority. In general, the screening enclosure shall be made of non - reflective material and painted to blend with surrounding materials and colors. (6) If placed in an underground vault, flush -to -grade vents, or alternatively, vents that extend no more than 24 inches above the finished grade and are screened from public view may be utilized. b. Installations in a Public Right -of -Way. The following is a non- exclusive list of potential screening techniques for Telecom Facilities located in a public right -of -way: (1) Where the existing utilities services (e.g., telephone, power, cable TV) are located underground, the Support Equipment shall be placed underground, consistent with Chapter 13.20. Flush -to -grade underground vault enclosures, including flush -to -grade vents, or vents that extend no more than 24 inches above the finished grade and are screened from public view may be Page 113 incorporated. Electrical meters required for the purpose of providing power for the proposed Telecom Facility may be installed above ground on a pedestal in a public right -of -way. (2) Support equipment approved to be located above ground in a public right -of- way shall be painted or otherwise coated to be visually compatible with the existing or replacement pole, lighting and /or traffic signal equipment without substantially increasing the width of the structure. (3) All transmission or amplification equipment such as remote radio units, tower mounted amplifiers, and surge suppressors shall be mounted inside the streetlight pole ^• 4 @4ir GAR49' 5t..RdRFa without increasing the pole diameter or shall be installed in a f1bish�„ - gra4ethe vault enclosure adjacent t,, the ha -se e#iul ortingthepe4eFacility. G. Night Lighting. Telecom Facilities shall not be lighted except for security lighting at the lowest intensity necessary for that purpose or as may be recommended by the U.S. Flag Code. Such lighting shall be shielded so that direct illumination does not directly shine on nearby properties. The review authority shall consult with the Police Department regarding proposed security lighting for Telerem rFacilities on a case -by -case basis. H. Signs and Advertising. No advertising signage or identifying logos shall be displayed on any Telecom Facility except for small identification, address, warning, and similar information plates. Such information plates shall be identified in the telecom application and shall be subject to approval by the review authority. Signage required by state or federal regulations shall be allowed in its smallest permissible size. I. Nonconformities. A proposed Telecom Facility shall not create any new or increased nonconformity as defined in the Zoning Code, such as, but not limited to, a reduction in and /or elimination of, required parking, landscaping, or loading zones unless relief is sought pursuant to applicable Zoning Code procedures. J. Maintenance. The Telecom Operator shall be responsible for maintenance of the Telecom Facility in a manner consistent with the original approval of the T,zlese.; Facility, including but not limited to the following: 1. Any missing, discolored, or damaged screening shall be restored to its original permitted condition. 2. All graffiti on any components of the Telecom Facility shall be removed promptly in accordance the Newport Beach Municipal Code. 3. All landscaping required for the Telecom Facility shall be maintained in a healthy condition at all times, and shall be promptly replaced if dead, dying, or damaged. 4. All Telecom Facilities shall be kept clean and free of litter. Page 114 5. All equipment cabinets shall display a legible contact number for reporting maintenance problems to the €aeil+tyTelecom Operator. 6. If a flagpole is used for a Telecom Facility, flags shall be flown and shall be properly maintained at all times. The use of the United States flag shall comply with the provisions of the U.S. Flag Code (4 U.S.C. § 1 et seq.). 20.49.9-79060 — Permit Review Procedures, A. Application Procedures. Applications for Telecom Facilities shall be subject to Chapters 20.507 (Permit Application Filing and Processing), 20.527 (Permit Review Procedures), and 20.54 (Permit Implementation, Time Limits, and Extensions) unless otherwise modified by this Section. Applications shall be processed consistent with the FCC Declaratory Ruling FCC 09 -99 ( "Shot Clock") deadlines or as redefined in the future by applicable State or federal law. All costs associated with the permit application review shall be the responsibility of the applicant, including any expense incurred for any outside third -party technical or legal services in connection with the application. n PeFFA*t RegunFed.Installations in the Public Right -of -Way. All Telecom Facilities shah obtain MI JP, GI JP, ITn . ZG if Hat .. 9hibited by subs etian 7n no nrn o ,A....,..., iRg eR the ARt....,. -. rl-.�� c;Rd'I..eatieR ..ifi...J iR the Table A •I. i Nonni Facility net leeated in the „th aFeaS I Z-C C69 M IJ R 42412 tTR '. eRtif0pri Page 115 (a) n..,, plie.tipR fAF a T-Pipe(;Fn laaeil;+„ that p ^'proposed to „ ,.a the b;;qp height ..a AFtiRA ,.r ri in 4.ybe located in the PlaRRiRg Gemm°'^^^ +.,,etuFe may be ,ii,.,. ed su ,eet to of a ;Ze.iRg r-leaF..Ree (ZC) ,.,4, ..public right -of way shall comply with the FeqHiFe Rent ^.provisions of Title 13. I4-.C_G�Application Submission Requirements for Telecom Facilities on City -owned or City -held Trust Properties. Prior to the submittal for any application for any T-PlPg.:6; rFacility located on any City -owned property or City -held trust property, the applicant shall first obtain written authorization from the City Manager or its designee to submit an application. D. &— Permit Reauired. All Telecom Facilities shall obtain a MUP. CUP. LTP. or ZC if not Prohibited by subsection 20.49.040(B) as provided in Table 4 -1. Notwithstanding permits identified in Table 4 -1, any application for a Facility that proposes to exceed the maximum heieht limit of the aoolicable zonine district in which the Facilitv is located shall require the issuance of a CUP by the Planning Commission Table 4 -1 Permit Requirement for Telecom Facilities Facility Class srw�ns�ansrra�sura�rrn��mm .xrra eu� a--- • FIVI .. ` Class 3 MUP Class 4 CUP Class 5 LTP D. &— Permit Reauired. All Telecom Facilities shall obtain a MUP. CUP. LTP. or ZC if not Prohibited by subsection 20.49.040(B) as provided in Table 4 -1. Notwithstanding permits identified in Table 4 -1, any application for a Facility that proposes to exceed the maximum heieht limit of the aoolicable zonine district in which the Facilitv is located shall require the issuance of a CUP by the Planning Commission Table 4 -1 Permit Requirement for Telecom Facilities Facility Class Permit Class 1 ZC Class 2 MUP Class 3 MUP Class 4 CUP Class 5 LTP E. Review of Collocated Facilities. Notwithstanding any provision of this Chapter to the contrary, pursuant to California Government Code section 65850.6 (as amended or superseded), the addition of a new T, plpegm Facility to an existing Facility resulting in the establishment of a Collocated Telecom Facility shall be allowed without a Page 116 discretionary review provided it meets section 20.49.499090. If such a Collocated Telecom Facility does not satisfy all of the requirements of Government Code section 65850.6 and Section 20.49.499090, the Facility shall be reviewed pursuant the review procedures provided in Table 4 -1. F. Q Emergency Communications Review. At the time an application is submitted to the Community Development Department, a copy of the Plans, Map, and Emission Standards shall be sent to the Chief of the Newport Beach Police Department. The Police Department or its designee shall review the plan's potential conflict with emergency communications. The review may include a pre - installation test of the Telecom Facility to determine if any interference exists. If the Police Department determines that the proposal has a high probability that the T- PIer.AFP Facility will interfere with emergency communications devices, the applicant shall work with the Police Department to avoid interference. G. #Public Notice and Public Hearing Requirements. An application for a MUP, CUP or LTP shall require a— public notice, and a public hearing gh;;' he— eanddRed, in accordance with Chapter 20.62 (Public Hearings). H. Required Findings for Telecom Facilities. The following findings shall apply to all Tplpeem Facilities requiring discretionary review: 1. 4. General. The review authority may approve or conditionally approve an application for a Telecom Facility only after first finding each of the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits), and each of the following: a. The proposed Telecom Facility is visually compatible with the surrounding neighborhood. b. The proposed Telecom Facility complies with the height, location and design standards, as provided for in this Chapter. c. An alternative site(s) located further from a Residential District, Public Park or Public Facility cannot Feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. d. An alternative ^RtPRRA GARStF,WtiAR plan that would result in a higher priority A tpnn;;Facility Class category for the proposed,zieewn Facility is not available or reasonably Feasible and desirable under the circumstances. 2. Findings to Increase Height. The review aWt eF;tuPlanning Commission may approve, or conditionally approve an application for a Telecom Facility which includes a request to exceed the basemaximum height limit for the zoning district in which the TTCicrAM Facility is located up to a maximum of 15 feet only after making each of the following Page 117 findings in addition to the required findings above, as well the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits): a. The increased height will not result in undesirable or abrupt scale changes or relationships being created between the proposed Telecom Facility and existing adjacent developments or public spaces. b. Establishment of the Telecom Facility at the requested height is necessary to provide service. 20.49.989070 — Permit Implementation, Time Limits, Extensions, and Appeals, A. The process for implementation or "exercising" of permits issued for a Telecom Facility, time limits, and extensions, shall be in accordance with Chapter 20.54 (Permit Implementation, Time Limits, and Extensions). B. Appeals. Any appeal of the decision of the review authority of an application for a Telecom Facility shall be processed in compliance with Chapter 20.64 (Appeals). 20.49.999080 — Agreement for Use of City -Owned or City -Held Trust Property, When applying for a permit pursuant to this Chapter, all Telecom Facilities located on City - owned or City -held trust property shall require a license agreement approved as to form by the City Attorney, and as to substance (including, but not limited to, compensation, term, insurance requirements, bonding requirements, and hold harmless provisions) by the City Manager, consistent with provisions in the City Council Policy Manual. Prior to entering into an agreement, the applicant shall obtain a MUP, CUP, LTP or ZC. Upon the issuance of a MUP, CUP, LTP or ZC, as required, and upon entering into an agreement, the applicant shall obtain any and all necessary ministerial permits, including, encroachment permits for work to be completed in the public right -of -way, and building permits, etc. All costs of said permits shall be at the sole and complete responsibility of the applicant. All work shall be performed in accordance with the applicable City standards and requirements. 20.49.40690 — Modification and Collocation of Existing Telecom Facilities, Notwithstanding any provision in this Chapter of the Zoning Code, a request to modify an existing Facility that involves the Collocation of new transmission equipment, the removal of existing transmission equipment, or the replacement of existing transmission equipment shall be subject to a ministerial review and approval of a ZC without tie— processing€ any discretionary permit provided that such modification does not substantially change the existing Facility from the original permit for the Facility. A substantial change means a single change, or series of changes over time, that exceeds five percent (5%) of the physical dimensions of the original approved Telecom Facility eyed` as paFt of the eFigiRal 61:5,. etie aFy peFFRO defined by applicable State or federal law in the future. Page 118 Each application submitted under this section for a modification or collocation to an existing Telecom Facility shall be accompanied by: 1. A detailed description of the proposed modifications to the existing Telecom Facility(ies); 2. A photograph or description of the Telecom Facility as originally constructed, if available; a current photograph of the existing T,zlprg„rFacility; and, a graphic depiction of the: PlPrA.n Facility after modification showing all relevant dimensions; 3. A detailed description of all construction that will be performed in connection with the proposed modification; and 4. A written statement signed and stamped by a professional engineer, licensed and qualified in California, attesting that the proposed modifications do not constitute a substantial change of the existing permitted Facility. Any permit issued will be conditioned upon, and may be revoked, and the Telecom Facility shall be required to be removed or restored to its pre- modification condition if= any material statement made with respect to the Facility application is false or the modifications as actually made would have required a discretionary review had the plan for the Facility depicted the modifications. ��arsnr sx�ar !�rerr_�ne!�rRS:ss�!�s�r�!!r�n R�s�rs_s�a 20.49.449100 — Operational and Radio Frequency Compliance and Emissions Report, At all times, the operator shall ensure that its Telecom Facilities shall comply with the most current regulatory, operations standards, and radio frequency emissions standards adopted by the FCC. The operator shall be responsible for obtaining and maintaining the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. Said information shall be made available by the operator upon request at the discretion of the Community Development Director. Within thirty (30) days after installation of a Telecom Facility, a radio frequency (RF) compliance and emissions report prepared by a qualified RF engineer acceptable to the City shall be submitted in order to demonstrate that the TRIPrAFacility is operating at the approved frequency and complies with FCC standards for radio frequency emissions safety as defined in 47 C.F.R. § 1.1307 et seq. Such report shall be based on actual field transmission measurements of the T,zlPPAR; rFacility operating at its maximum effective radiated power level, rather than on estimations or computer projections. If the report shows that the Tplergm Facility does not comply with the FCC's 'General Population /Uncontrolled Exposure' standard as defined in 47 C.F.R. § 1.1310 Note 2 to Table 1, the Director shall require ##aat-use of the Teletze , Facility be suspended until a new report has been submitted confirming such compliance. Page 119 Upon any proposed increase of at least ten percent (10 %) in the effective radiated power or any proposed change in frequency use of the Telecom Facility by the Telecom Operator, the Telecom Operator shall be required to provide an updated, certified radio frequency (RF) compliance and RF emissions safety report. ........... 20.49.440110 — Right to Review -eea Revoke or Modify a Permit. The reservation of right to review any permit for a Telecom Facility granted by the City is in addition to, and not in lieu of, the right of the City to review and revoke or modify any permit granted or approved hereunder for any violations of the conditions imposed on such permit. 20.49.439120 — Removal of Telecom Facilities, A. Discontinued Use. Any Telecom Operator who intends to abandon or discontinue use of a Telecom Facility must notify the Community Development Director by certified mail no less than thirty (30) days prior to such abandonment or discontinuance of use. The Telecom Operator or owner of the affected real property shall have ninety (90) days from the date of abandonment or discontinuance, or a reasonable additional time as may be approved by the Community Development Director, within which to complete one of the following actions: 1. Reactivate use of the Telecom Facility. 2. Transfer the rights to use the Telecom Facility to another Telecom Operator and the Telecom Operator immediately commences use within a reasonable period of time as determined by the Community Development Director. 3. Remove the Telecom Facility and restore the site. B. Abandonment. Any Telecom Facility that is not operated for transmission and /or reception for a continuous period of ninety (90) days or whose Telecom Operator did not remove the Telecom Facility in accordance with Subsection A shall be deemed abandoned. Upon a finding of abandonment, the City shall provide notice to the Telecom Operator last known to use such Facility and, if applicable, the owner of the affected real property, providing thirty days from the date of the notice within which to complete one of the following actions: 1. Reactivate use of the Telecom Facility. 2. Transfer the rights to use the Telecom Facility to another Telecom Operator who has agreed to reactivate the Ttl�g Facility within 30 days of the transfer. Page 120 20.49.440110 — Right to Review -eea Revoke or Modify a Permit. The reservation of right to review any permit for a Telecom Facility granted by the City is in addition to, and not in lieu of, the right of the City to review and revoke or modify any permit granted or approved hereunder for any violations of the conditions imposed on such permit. 20.49.439120 — Removal of Telecom Facilities, A. Discontinued Use. Any Telecom Operator who intends to abandon or discontinue use of a Telecom Facility must notify the Community Development Director by certified mail no less than thirty (30) days prior to such abandonment or discontinuance of use. The Telecom Operator or owner of the affected real property shall have ninety (90) days from the date of abandonment or discontinuance, or a reasonable additional time as may be approved by the Community Development Director, within which to complete one of the following actions: 1. Reactivate use of the Telecom Facility. 2. Transfer the rights to use the Telecom Facility to another Telecom Operator and the Telecom Operator immediately commences use within a reasonable period of time as determined by the Community Development Director. 3. Remove the Telecom Facility and restore the site. B. Abandonment. Any Telecom Facility that is not operated for transmission and /or reception for a continuous period of ninety (90) days or whose Telecom Operator did not remove the Telecom Facility in accordance with Subsection A shall be deemed abandoned. Upon a finding of abandonment, the City shall provide notice to the Telecom Operator last known to use such Facility and, if applicable, the owner of the affected real property, providing thirty days from the date of the notice within which to complete one of the following actions: 1. Reactivate use of the Telecom Facility. 2. Transfer the rights to use the Telecom Facility to another Telecom Operator who has agreed to reactivate the Ttl�g Facility within 30 days of the transfer. Page 120 3. Remove the Telecom Facility and restore the site. C. Removal by City. 1. The City may remove an abandoned Telecom Facility, repair any and all damage to the premises caused by such removal, and otherwise restore the premises as is appropriate to be in compliance with applicable codes at any time after thirty (30) days following the notice of abandonment. 2. 2 If the City removes an abandoned Telecom Facility, the City may, but shall not be required to, store the removed Telerem Facility or any part thereof. The owner of the premises upon which the abandoned Telpram Facility was located and all prior operators of the T-TICm Facility shall be jointly liable for the entire cost of such removal, repair, restoration and storage, and shall remit payment to the City promptly after demand therefore is made. In addition, the City Council, at its option, may utilize any financial security required in conjunction with granting the telecom permit as reimbursement for such costs. Also, in lieu of storing the removed Tart Facility, the City may convert it to the City's use, sell it, or dispose of it in any manner deemed by the City to be appropriate. D. City Lien on Property. Until the cost of removal, repair, restoration, and storage is paid in full, a lien shall be placed on the abandoned personal property and any real property on which the Telecom Facility was located for the full amount of the cost of removal, repair, restoration and storage. The City Clerk shall cause the lien to be recorded with the Orange County Recorder, with the costs of filing, processing, and release of such City Lien being added to the other costs listed in this subsection. Page 121 Correspondence Item No. 4a J �1� Wireless Telecommunications Facilities Ordinance Update T PA2 O 12 — O S % Koa C- Power AT &T Services. Inc. T. 91e- 341.3309 G. Fal Anmey 1213 1( $Ines, SUNY 18W R 916448- M Sacmn*No, CA 95e14 kyla.poweloa1LO November 21, 2013 Delivered via Email James Campbell, Principal Planner Community Development Department City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Subject: Proposed Amendment to Wireless Telecommunications Facilities Ordinance (PA2012 -057), Code Amendment No. 2012 -004, as revised November 21, 2013 Dear Mr. Campbell: We appreciate the Planning Commission and staff continuing to take the time to invite and consider industry's comments and proposed changes to the City's Proposed Wireless Telecommunications Facilities Ordinance. While we are pleased that some of industry's proposed changes have been accepted, we respectfully request additional modifications to the ordinance before It is advanced to the City Council. AT &T has conducted a legal review of the latest draft of the ordinance and remains concerned about the overall restrictiveness of ordinance. While we recognize the importance to the City of protecting community aesthetics, the City will be best served if the ordinance strikes a balance between aesthetics and the wireless needs of its residents, businesses, and visitors. The ordinance, as drafted, would continue to seriously impede the ability of carriers to provide wireless service and violate federal and state law provisions raised in ATV's prior comments. Below are some examples of areas in the ordinance that remain problematic under applicable law: Federal Telecommunications Act of 19% and California Public Utilities Code section 7901 As noted previously, the Federal Telecommunications Act of 1996 (47 U.S -C -A. § 151 et seq.) ("Act) grants exclusive authority to the FCC over deployment of wireless telecommunications service and preempts any conflicting state or local government regulations. It also prohibits unreasonable discrimination among providers of functionally equivalent services and any regulations that would have the effect of prohibiting the provision of personal wireless services. (47 U.S.C.A. § 332(c)(3).) Section 7901 of the California Public Utilities Code similarly supports deployment of telecommunications facilities in the public right -of -way. Cities may only exercise reasonable control as to time, place, and manner in which roads are accessed. (Section 7901(a).) Section 7901.1(b) further requires municipal regulations at a minimum to be applied to all entities in a nondiscriminatory manner. November 21, 2013 Page 2 Here, the proposed City ordinance provisions that appear to conflict with the Act and/or Section 7901 include! • Section 20.49.10— Purpose The purpose statement fails to acknowledge the overall federal and state policies promoting wireless deployment. The ordinance purpose should be revised to acknowledge the importance of bringing modem wireless infrastructure to residents and businesses of Newport Beach. Section 20.49.040 — Telecom Facility Preferences and Prohibited Locations The proposed blanket prohibitions on certain residential areas continue to be a major concern. We appreciate the recent revisions to except public right -of -way and some common areas from prohibited locations, but the remaining prohibitions are still extensive. These could prevent wireless providers from bringing service and upgrades to significant portions of the City, in violation of the Act. If one of the prohibited areas Is the only available location for a telecom facility, this would appear to be a complete bar to the ability to provide service. There are many residents who are no longer signing up for wired services, making the need to bring wireless service to residential communities increasingly important. Blanket prohibitions do not provide the flexibility to (bring needed service when residential areas are the only or best option. Rather than providing a list of prohibited locations, we recommend that all locations be prioritized by order of preference. Categories listed as prohibited locations In the current draft could be placed at the bottom of that list, only to be considered if all properties in higher categories were considered and rejected. Section 20.49.50 — General Development and Design Standards This section and other areas of the proposed) ordinance impose a number of rules and restrictions focused around aesthetics, including height limitations, stealthing standards, limits on pole attachments, and undergrounding requirements. These are counter - productive to providing quality service and resulting cost burdens will impact the number of sites AT &T can afford to build and thus negatively impact the service the citizens of Newport Beach (our customers) receive. We believe these run counter to the Act and Section 7901. Additionally, we are very concerned that not all of the latest technologies will be able to meet the City's restrictive aesthetics- oriented standards. To the extent that these rules favor one technology over another, or one company over another, these restrictions are again prohibited under the Act and Section 7901. • Section 20.49.100 — Operational and Radio Frequency Compliance and Emissions Under the Act, the FCC has exclusive jurisdiction over regulation of RF emissions. Some of the proposed requirements appear to be an effort to engage in such regulation and, for that reason, might be subject to challenge. In any event, It is unclear what the City might reasonably do with the required information if not for regulatory purposes. November 21, 2013 Page 3 Section 20.49.60 - Permit Review Procedures The requirement to interface with the Chief of Police is burdensome and appears to exceed what is allowed under the Act. Additionally, we are concerned about bearing the responsibility for all of the expenses of third parry consultants. Without a cap or some form of limitation on this expense, this requirement is open for abuse and can pose a significant burden to provision of service. Also, if this requirement is not consistent with applications for permits by other Industries, it is impermissible discrimination. Middle Class Tax Relief and Job Creation Act of 2012 As previously explained, Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 requires any facility modification that does not substantially change the physical dimensions of the tower or base station at issue to be approved by the City. Proposed City ordinance provisions that appear to violate Section 6409(a) include: • Section 20.49.90 - Modification and Collocation of Existing Telecom Facilities This would appear to violate this act by establishing an unduly restrictive definition of "substantial change," as any change that exceeds five percent of the physical dimensions. Section 20.49.030- Definitions The definitions of "Base Station" and "Wireless Tower" remain problematic. These are too restrictive and narrowing. Thank you for your continuing consideration of our concerns. We are happy to further discuss the issues we have raised and answer any questions you may have. Sincerely, .-►.,/� -�� Kyla C. owell Cc: Bradley Hillgren, Chair, City of Newport Beach Planning Commission Larry Tucker, Vice Chair, City of Newport Beach Planning Commission Members, City of Newport Beach Planning Commission Correspondence Item No. 4b �� Wireless Telecommunications Facilities Ordinance Update PA2012 -057 Chapter 20.49 - Wireless Telecommunications Facilities Sections L /t j .ie --�-� et � 7f ' Z'l: 5- 4 20.49.010 - Purpose / / 1i 20.49.020 - Effect of Chapter 20.49.030 - Definitions 20.49.040 - Telecom Facility Preferences and Prohibitions 20.49.050 - General Development and Design Standards 20.49.060 - Permit Review Procedures 20.49.070 - Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 - Agreement for Use of City -owned or City-held Trust Property 20.49.090 - Modification and Collocation of Existing Telecom Facilities 20.49.100 - Operational and Radio Frequency Compliance and Emissions Report 20.49.110 - Right to Review, Revoke or Modify a Permit 20.49.120 - Removal of Telecom Facilities 20.49.010 - Purpose A. The purpose of this Chapter is to provide for the installation, modification, operation and maintenance of wireless telecommunication facilities ( "Telecom Facilities ") on public and private property consistent with State and federal law while ensuring public safety, FedUrin minimizin the visual effects of Telecom Facilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the visual impacts of Telecom Facilities on the community. B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and *efebr e4we their visual impact on the community. (�� „" � �jNlyyr C. The provisions of this Chapter are n intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecommunication services. This Chapter shall be applied to providers, operators, nd maintainers of wifelesstelecommunication services regardless of whether authorized or subject to 1, 1tate or federal regulations. This Chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent teleceratelecommunication services. 20.49.020 - Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities +ragas defined herein and that provide wireless voice and /or data transmission such as, but not limited to, cell phone, internet, and radio relay stations. { Page 11 B. Permit and /or Agreement Required. PFieff te rengtri, Unless the provisions of this Chapter provide otherwise, prior to installation or modification of any Telecom Facility in the City, the applicant shall obtain a Minor Use Permit (MUP), Conditional Use Permit (CUP), Limited Term Permit (LTP), or Zoning Clearance (ZC) in accordance with Section 20.49.060 (Permit Review Procedures). Applicants who obtain a MUP, CUP, LTP, or ZC (and an encroachment permit, if required) for any Telecom Facility approved to be located on any City -owned property or City -held Trust Property, shall enter into an agreement prepared and executed by the City Manager or ifshis or her'designe prior to eeastfuetieainstallation of the Facility, consistent with Section 20.49.080 (Agreement for Use of City -owned or City - held Trust Property). �1 C. Exempt Facilities. The following types of elecocilities a exempt from the provisions of this Chapter: 1. Amateur radio antennas and receiving satellite dish antennas, and citizen band radio antennas regulated by Section 20.48.190 (Satellite Antennas and Amateur Radio Facilities). 2. Dish and other antennas subject to the FCC Over - the -Air Reception Devices ( "OTARD ") rule, 47 C.F.R. § 1.4000 that are designed and used to receive video programming signals from (a) direct broadcast satellite services, or (b) television broadcast stations, or (c) for wireless cable service. 3. During an emergency, as defined by Title 2 of the NBMC, the City Manager, Director of Emergency Services or Assistant Director of Emergency Services shall have the authority to approve the placement of a Telecom Facility in any district on a temporary basis not exceeding ninety (90) calendar days from the date of authorization. Such authorization may be extended by the City on a showing of good cause. 4. Facilities exempt from some or all of the provisions of this Chapter by operation of State or federal law to the extent so determined by the City. 5. Systems installed or operated at the direction of the City or its contractor. 6. Systems installed entirely within buildings for the sole purpose of providing wireless telecommunications or data transmission services to building occupants. D. Other Regulations. Notwithstanding the provisions of this Chapter, all Telecom Facilities within the City shall comply with the following requirements: 1. Rules, regulations, policies, or conditions in any permit, license, or agreement issued by aany local, state or federal agency which has jurisdiction over the Telecom Facility. 2. Rules, regulations and standards of the Federal Communications Commission (FCC) and the California Public Utilities Commission (CPUC). Page 12 E. Regulations not in Conflict or Preempted. All Telecom Facilities within the City shall comply with the following requirements unless in conflict with or preempted by the provisions of this Chapter: 1. All applicable City design guidelines and standards. 2. Requirements established by any other provision of the Municipal Code and by any other ordinance and regulation of the City. F. Legal Nonconforming Facility. Any Telecom Facility that was lawfully constructed, erected, or approved prior to [INSERT EFFECTIVE DATE OF THIS CHAPTER], that is operating in compliance with all applicable laws, and which Facility does not conform to the requirements of this Chapter shall be aeeepted and allowed —deemed a legal nonconforming Facility. Legal nonconforming Facilities shall comply at all times with the laws, ordinances, r ' s, and any conditions of approval in effect at the time the Facility was approve and y applicable Provisions of the Municipal Code or federal and State laws as they maybe amended or enacted, in the future. / " `�'t 20.49.030 — Definitions pep ` v ' For the purposes of this Chapter, the following definitions shall apply: A. Antenna. Antenna means a device used to transmit and /or receive radio or electromagnetic waves between earth and /or satellite -based systems, such as reflecting discs, panels, microwave dishes, whip antennas, Antennas, arrays, or other similar devices. B. Antenna Array. Antenna Array means Antennas having transmission and /or reception elements extending in more than one direction, and directional Antennas mounted upon and rotated through a vertical mast or tower interconnecting the beam and Antenna support structure, all of which elements are deemed to be part of the Antenna. C. Base Station. Base Station means the electronic equipment and appurtenant Support Equipment at a Telecom Facility installed and operated by the Telecom Operator that together perform the initial signal transmission and signal control functions. A Base Station does not include the Antennas, Antenna support structure, or any portion of Distributed Antenna System (DAS). D. City -owned or City -held Trust Property. City -owned or City -held Trust Property means all real property and improvements owned, operated or controlled by the City, other than the public right -of -way, within the City's jurisdiction, including but not limited to City Hall, Police and Fire facilities, recreational facilities, parks, beaches, libraries, monuments, signs, streetlights and traffic control standards. E. Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are installed on the same building or structure. Page 13 L. Operator or Telecom Operator. Operator or Telecom Operator means any person, firm, corporation, company, or other entity that directly or indirectly owns, leases, runs, manages, or otherwise controls a Telecom Facility or facilities within the City. The definition of Operator or Telecom Operator does not include a property owner(s) wkethat leases property to an Operator for a Telecom Facility. M. Public Right -of -Way. Public Right -of -Way or ( "PROW ") means the improved or unimproved surface of any up blic street, or similar public way of any nature, dedicated or improved for vehicular, bicycle, and /or pedestrian related use. PROW includes public streets, roads, lanes, alleys, sidewalks, medians, parkways and landscaped lots. The PROW does not include private streets. N. Stealth or Stealth Facility. Stealth or Stealth Facility means a Telecom Facility in which the Antenna, and the Support Equipment, are completely hidden from view such as in a monument, cupola, pole -based structure, or other concealing structure which either mimics, or which also serves as, a natural or architectural feature. Concealing structures which are obviously not such a natural or architectural feature to the average reasonable��,9"'� observer do not qualify within this definition. For example, an artificial tree ismav no not be considered to be a Stealth Facility. O. Support Equipment. Support Equipment means the physical, electrical and /or electronic equipment included within a Telecom Facility used to house, power, and /or contribute to the processing of signals from or to the Facility's Antenna or Antennas, including but not limited to a base station, cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters. Support Equipment does not include DAS, Antennas or the building or structure to which the Antennas or other equipment are attached. P. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or Facility. Telecommunication(s) Facility, Telecom Facility, Telecom Facilities, Wireless Telecommunications Facility, or simply Facility or Facilities means an installation that sends and /or receives wireless radio frequency signals or electromagnetic waves, including but not limited to directional, omni - directional and parabolic antennas, structures or towers to support receiving and /or transmitting devices, supporting equipment and structures, and the land or structure on which they are all situated. The term does not include mobile transmitting devices, such as vehicle or hand held radios /telephones and their associated transmitting antennas. Q. Utility Pole. Utility Pole means a single freestanding pole used to support services provided by a public or private utility provider. R. Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or steel pole used to support electric transmission facilities. S. Wireless Tower. Wireless Tower means any structure built for the sole or primary purpose of supporting Antennas used to provide wireless services authorized by the FCC. A Page 15 greatest extent Feasible, Facilities shall be designed to minimize the visual impact of the Facility by means of location, placement, height, screening, landscaping, and shall be compatible with existing architectural elements, building materials, other building characteristics, and the surrounding area. In addition to the other design standards of this Section, the following criteria shall be considered by the review authority in connection with its processing of any MUP, CUP, LTP, or ZC for a Telecom Facility: 1. Blending. The extent to which the proposed Telecom Facility blends into the surrounding environment or is architecturally compatible and integrated into the structure. 2. Screening. The extent to which the proposed Telecom Facility is concealed or screened by existing or proposed new topography, vegetation, buildings or other structures. 3. Size. The total size of the proposed Telecom Facility, particularly in relation to surrounding and supporting structures. 4. Location. Proposed Telecom Facilities shall be located so as to utilize existing natural or man -made features in the vicinity of the Facility, including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening and blending with the predominant visual backdrop. 5. Collocation. In evaluating whether the Collocation of a Telecom Facility is Feasible, the criteria listed in 1 -4 above shall be used to evaluate the visual effect of the combined number of Facilities at the proposed location B. Public View Prote ion. All new or modified Telecom Facilities, whether approved by administrative fsreeessor discretionary review. shall comply wit Section 20.30.100 (Public View Protection). Additionally, potential impacts -to public views that are not identified by the City's General Plan Peliey NR ' ^' 1P ' V4 ~4 olp Kies shall 4 C. Height. p�r ° `��— VA 1. Th/Plann' Co n o oou cil may ipp ove o o ditiofi ally appr6ve a CUP fo Facility that exceeds the maximum height limit for the zoning district in wcility is located provided it does not exceed the maximum height limit by 15 fe er making all of the required findings in Section 20.49.060( +H) (Permit Re dures). 2. All Telecom Facilities shall comply with height restrictions or conditions, if any, required by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport Environs Land Use Plan for John Wayne Airport and Airport Land Use Page 17 F. Screening Standards. For Collocation installations, the screening method shall be materially similar to those used on the existing Telecom Facility, and shall not diminish the screening of the Facility. If determined necessary by the review authority, use of other improved and appropriate screening methods may be required to screen the Antennas and Support Equipment from public view. The Following is a non - exclusive list of potential design and screening techniques that must be considered for all Facility installations: 1. P&P -Class 1(Stealth /Screened) Installations: a. All Telecom Facility components, including all Antennas, Antenna panels, cables, wires, conduit, mounting brackets, and Support Equipment, shall be fully screened, and mounted either inside the building or structure, or behind screening elements and not on the exterior face of the building or structure. b. Screening materials shall match in color, size, proportion, style, and quality with the exterior design and architectural character of the structure and the surrounding visual environment. If determined necessary by the reviewing authority, screening to avoid adverse impacts to views from land or buildings at higher elevations shall be required.' c. When a Teleco Facility is proposed within an existing or new architectural feature such as a ste le, religious symbol, tower, cupola, clock tower, sign tower, etc., the Facility shall architecturally compatible with the existing structure or building. 2. Per -Class 2 (Visible) Installations: a. Building or structure mounted Antennas shall be painted or otherwise coated to match or complement the predominant color of the structure on which they are mounted and shall be compatible with the architectural texture and materials of the building to which the Antennas are mounted. No cables, wires, conduit, mounting brackets or any other associated support equipment shall be visible. b. All Antenna components and Support Equipment shall be treated with exterior coatings of a color and texture to match the predominant visual background and /or adjacent architecture so as to visually blend in with the surrounding development. Subdued colors and non - reflective materials that blend with surrounding materials and colors shall be used. 3. For Class 3 (Public Right -of -Way) Installations: a. Whenever Feasible, new Antennas proposed to be installed in the public right -of- way shall be placed on existing utility structures, streetlights, or other existing vertical structures. Antenna installations on existing or replacement streetlight poles, or Utility Poles shall be screened by means of canisters, radomes, shrouds Page 19 other screening measures whenever Feasible, and treated with exterior coatings of a color and texture to match the existing pole. b. New or replacement vertical structures may be allowed whewewhen authorized by the Municipal Code and approved by the Public Works Department. Replacement poles or streetlights shall be consistent with the size, shape, style, and design of the existing pole, including any attached light arms. New poles or streetlights may be installed provided they match existing or planned poles within the area. c. If Antennas are proposed to be installed without screening, they shall be flush - mounted to the pole and shall be treated with exterior coatings of a color and texture to match the pole. 4. Few Class 4 (Freestanding Structure) Installations: a. The installation of new Lattice Towers or Monopoles with visible antennas or Antenna Arrays is strongly discouraged-. due to the visual effects of such facilities. Preferred Monopole designs include fully screened Antennas without visible brackets, cables, or conduit. Additionally, any Lattice To or Monopole should be sited in the least obtrusive location as,pes�sHAV e b. The construction of new freestanding structures such as signs, monoliths, pyramids, light houses, or other similar vertical structures shall be designed and sited to appropriately complement a site and screen all elements of the Telecom Facility. c. The installation of artificial rocks shall match in scale and color other with rock outcroppings in the general vicinity of the proposed site. An artificial rock screen may not be considered appropriate in areas that do not have natural rock outcroppings. d. The installation of artificial trees or shrubbery is strongly discouraged-. if they are obviously not natural to the average reasonable observer. When an artificial tree or shrubbery is proposed, it shall be designed for and located in a setting that is compatible with the proposed screening method. Such installations shall be situated so as to utilize existing natural or manmade features including topography, vegetation, buildings, or other structures to provide the greatest amount of visual screening. All Antennas and Antenna supports shall be contained within the canopy of the tree design or other vegetation comparable to that being replicated by the proposed screening elements. Finally, the addition of new comparable living vegetation may be necessary to enhance the artificial tree or shrubbery screening elements. e. Flagpoles shall not exceed 24 inches in width at the base of the flagpole and also shall not exceed 20 inches in width at the top of the flagpole. Page 110 H. Required Findings for Telecom Facilities. The following findings shall apply to all Facilities requiring discretionary review: 1. General. The review authority may approve or conditionally approve an application for a Telecom Facility only after first finding each of the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits), and each of the following findings: a. The proposed Telecom Facility is visually compatible with the surrounding neighborhood. b. The proposed Telecom Facility complies with height, location and design standards, as provided for in this Chapter. c. An alternative site(s) located further from a Residential District, Public Park or Public Facility cannot Feasibly fulfill the coverage needs fulfilled by the installation at the proposed site. d. An alternative plan that would result in a higher prierityoreference Facility Class category for the proposed Facility is not available or reasonably Feasible and desirable under the circumstances.d / O 2. Findings to Increase Height. The Planning Commission may /arove, or conditionally approve an application for a Telecom Facility which includequest to exceed the maximum height limit for the zoning district in which the y is located up to a maximum of 15 feet only after making each of the followi ings in addition to the recfuiredGeneral findings ^"^�•ei:set forth in 20.4 .080 1 and the required findings for a MUP or CUP pursuant to Section 20.52.02 nditional Use Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits): a. The increased height will not result in undesirable or abrupt scale changes or relationships being created between the proposed Telecom Facility and existing adjacent developments or public spaces. b. Establishment of the Telecom Facility at the requested height is necessary to provide service. 20.49.070 — Permit implementation, Time Limits, Extensions, and Appeals A. The process for implementation or "exercising" of permits issued for a Telecom Facility, time limits, and extensions, shall be in accordance with Chapter 20.54 (Permit Implementation, Time Limits, and Extensions). B. Appeals. Any appeal of the decision of the review authority of an application for a Telecom Facility shall be processed in compliance with Chapter 20.64 (Appeals). Page 115 W Any permit issued I be conditioned upon, and may be revoked, and the Telecom Facility shall be Feel .'Fed •e be removed efand restored to its pre - modification condition if any material statement made with respect to the Facility application is false or the modifications as actually made would have required a discretionary review had the plan for the Facility accurately depicted the modifications. 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report At all times, the operator shall ensure that its Telecom Facilities shall comply with the most current regulatory, operations standards, and radio frequency emissions standards adopted by the FCC. The operator shall be responsible for obtaining and maintaining the most current information from the FCC regarding allowable radio frequency emissions and all other applicable regulations and standards. Said information shall be made available by the operator upon request at the discretion of the Community Development Director. Within thirty (30) days after installation of a Telecom Facility, a radio frequency (RF) compliance and emissions report prepared by a qualified RF engineer acceptable to the City shall be submitted in order to demonstrate that the Facility is operating at the approved frequency and complies with FCC standards for radio frequency emissions safety as defined in 47 C.F.R. § 1.1307 et seq. Such report shall be based on actual field transmission measurements of the Facility operating at its maximum effective radiated power level, rather than on estimations or computer projections. If the report shows that the Facility does not comply with the FCC's 'General Population /Uncontrolled Exposure' standard as defined in 47 C.F.R. § 1.1310 Note 2 to Table 1, the Director shall require use of the Facility be suspended until a new report has been submitted confirming such compliance. Upon any proposed increase of at least ten percent (10 %) in the effective radiated power or any proposed change in frequency use of the Telecom Facility by the Telecom Operator, the Telecom Operator shall be required to provide an updated, certified radio frequency (RF) compliance and RF emissions safety report. 20.49.110 — Right to Review, Revoke or Modify a Permit The reservation of right to review any permit for a Telecom Facility granted by the City is in addition to, and not in lieu of, the right of the City to review and revoke or modify any permit granted or approved hereunder for any violations of the conditions imposed on such permit. 20.49.120 — Removal of Telecom Facilities A. Discontinued Use. Any Telecom Operator who intends to abandon or discontinue use of a Telecom Facility must notify the Community Development Director by certified mail no less than thirty (30) days prior to such abandonment or discontinuance of use. The Telecom Operator or owner of the affected real property shall have ninety (90) days from the date of abandonment or discontinuance, or a reasonable additional time as may be approved by Page 117 RESOLUTION NO. #### A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH RECOMMENDING CITY COUNCIL ADOPTION OF CODE AMENDMENT NO. CA2012 -004 RELATED TO THE REGULATION OF WIRELESS TELECOMUNICATIONS FACILITIES (PA2012 -057) THE PLANNING COMMISSION OF THE CITY OF NEWPORT BEACH HEREBY FINDS AS FOLLOWS: SECTION 1. STATEMENT OF FACTS. 1. On March 27, 2012, the City Council initiated an amendment of the Municipal Code to comprehensively update the City's wireless telecommunications facilities ordinance. 2. The Planning Commission conducted study sessions on July 19, 2012, September 6, 2012, September 19, 2013, and October 17, 2013, where potential changes to the ordinance were discussed. 3. A public hearing was held on November 21, 2013, in the City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice of time, place and purpose of the meeting was given in accordance with the Newport Beach Municipal Code. Evidence, both written and oral, was presented to, and considered by, the Planning Commission at this meeting. SECTION 2. CALIFORNIA ENVIRONMENTAL QUALITY ACT DETERMINATION. This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15061(b)(3) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. The revisions to the Zoning Ordinance do not authorize any development, and therefore, will not result in a change to the physical environment. Individual wireless telecommunications facilities are subject to CEQA review at the time of application review. SECTION 3. FINDINGS. 1. The proposed amendment will provide a balanced review process consistent with existing procedures provided within the Zoning Code (Title 20). Proposed telecom facilities that are not visible will be permitted by the Zoning Clearance process. Proposed telecom facilities that would be visible will be subject to either a Minor Use Permit or a Conditional Use Permit if a new free standing structure were is proposed. 2. The proposed amendment does not increase the potential height of telesem telecommunications facilities and does not allow them in areas where they are currently prohibited. Planning Commission Resolution No. 2of21 3. The proposed amendment includes adequate design, development, and screening standards to ensure that future telecommunications teleseaRfacilities are visually compatible with the community. 4. The proposed amendment includes provisions reflective of state and federal law and provides for the thatFequ+re administrative review of minor modifications to, or the collocation of, existing telecommunications telesem facilities. NOW, THEREFORE, BE IT RESOLVED: The Planning Commission of the City of Newport Beach hereby recommends approval of Code Amendment No. CA2012 -004 as set forth in Exhibit "A." PASSED, APPROVED AND ADOPTED THIS _ DAY OF 2013. AYES: NOES: ABSTAIN ABSENT: f:Y� Bradley Hillgren, Chairman BY: Kory Kramer, Secretary Planning Commission Resolution No. 3of21 EXHIBIT A Code Amendment No. CA2012 -004 Section 1: on the effective date of this Code Amendment Chapter 15.70 of the Newport Beach Municipal Code is hereby repealed. Section 2: Table 2 -1 within Section 20.18.020 (Residential Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -1 remaining unchanged: Section 3: Table 2 -4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2 -4 remaining unchanged: R -A R -1 R -BI RM Specific Use Specific Use R -2 RMD Regulations Wireless Regulations Wireless Telecommunication — — — MUP /CUP /LTP Chapter 20.49 Facilities LTP LTP LTP LTP LTP Section 3: Table 2 -4 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended as follows with all other provisions contained within Table 2 -4 remaining unchanged: Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: OA OG OM OR Specific Use Specific Use Regulations Wireless Regulations Wireless Telecommunication CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Chapter 20.49 Facilities LTP LTP LTP LTP LTP Section 4: Table 2 -5 within Section 20.20.020 (Commercial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions contained within Table 2 -5 remaining unchanged: Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: cc CG CM CN CV Specific Use Regulations Wireless Telecommunication CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Chapter Facilities LTP LTP LTP LTP LTP 20.49 Section 4: Table 2 -8 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Planning Commission Resolution No. Paae 4 of 21 Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: MU -W1 Specific Use Specific Use MU -CV /15th Specific Use MU -W2 MU -V MU -MM (6) MU -DW St. (7) Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Chapter 20.49 Telecommunication LTP LTP LTP LTP Facilities Section 5: Table 2 -9 within Section 20.22.020 (Mixed -Use Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.22.020 remaining unchanged: Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: MU -W1 Specific Use Specific Use IG (5)(6) MU -W2 Regulations Wireless Telecommunication CUP /MUP/ CUP /MUP/ Chapter 20.49 Facilities LTP LTP CUP /MUP/ Section 5: Table 2 -12 within Section 20.24.020 (Industrial Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.24.020 remaining unchanged: Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use IG Regulations Wireless CUP /MUP/ PF Telecommunication PR Chapter 20.49 Facilities LTP CUP /MUP/ Section 6: Table 2 -14 within Section 20.26.020 (Special Purpose Zoning Districts Land Uses and Permit Requirements) of the Newport Beach Municipal Code regarding Wireless Telecommunications Facilities is hereby amended to read as follows with all other provisions of Section 20.26.020 remaining unchanged: Specific Use OS PF PI PR Regulations Wireless CUP /MUP/ CUP /MUP/ CUP /MUP/ CUP /MUP/ Chapter 20.49 Telecommunication LTP LTP LTP LTP Facilities Planning Commission Resolution No. Page 5 of 21 Section 7: Chapter 20.49 (Wireless Telecommunication Facilities) of the Newport Beach Municipal Code as is hereby appmved- adopted as shall read as follows. Chapter 20.49 — Wireless Telecommunications Facilities Sections 20.49.010 — Purpose 20.49.020 — Effect of Chapter 20.49.030 — Definitions 20.49.040 — Telecom Facility Preferences and Prohibited Locations 20.49.050 — General Development and Design Standards 20.49.060 — Permit Review Procedures 20.49.070— Permit Implementation, Time Limits, Duration, and Appeals 20.49.080 — Agreement for Use of City -owned or City -held Trust Property 20.49.090 — Modification and Collocation of Existing Telecom Facilities 20.49.100 — Operational and Radio Frequency Compliance and Emissions Report 20.49.110 — Right to Review, Revoke or Modify a Permit 20.49.120 — Removal of Telecom Facilities 20.49.010 — Purpose A. The purpose of this Chapter is to provide for the installation, modification, operation and maintenance of wireless telecommunication facilities ( "Telecom Facilities') on public and private property consistent with State and federal law while ensuring public safety, reducing the visual effects of Telecom Facilities on public streetscapes, protecting public views, and otherwise avoiding and mitigating the visual impacts of Telecom Facilities on the community. B. Telecom Facilities shall utilize the least obtrusive available technology in order to reduce or minimize the number of Telecom Facilities in the City and thereby reduce their visual impact on the community. C. The provisions of this Chapter are not intended and shall not be interpreted to prohibit or to have the effect of prohibiting telecom services. This Chapter shall be applied to providers, operators, and maintainers of wireless services regardless of whether authorized by State or federal regulations. This Chapter shall not be applied in such a manner as to unreasonably discriminate among providers of functionally equivalent telecom services. 20.49.020 — Effect of Chapter A. Regulatory Scope. These regulations are applicable to all Telecom Facilities providing wireless voice and /or data transmission such as, but not limited to, cell phone, internet, and radio relay stations. Paul R. O'Boyle Paul R O'Boyle, JD /MBA w/ www.oboylelaw.com t/ (858) 922 -8807 18269 Deer Canyon Place e/ pro @oboylelaw.com f/ (858) 484 -7881 San Diego, CA 92129 November 21. 2013 Mr. James Campbell, Principal Planner City of Newport Beach Community Development Department 100 Civic Drive Newport Beach, CA 92660 RE: Newport Beach Municipal Code — Chapter 20.49 Comments on Draft Wireless Telecommunications Facilities Ordinance Dear Mr. Campbell: As outside counsel for Crown Castle NG West, Inc. ( "Crown "), I am pleased to submit these comments on the proposed changes to the City of Newport Beach's ( "City') Wireless Telecommunications Facilities Ordinance ( "Ordinance "). Crown appreciates the opportunity to participate in the process and hopefully improve the processing of wireless facilities within the City. Crown is hopeful that this letter will provide additional information and insight on newer technologies that facilitate improved wireless coverage and capacity solutions without creating the same level of impacts to the community as traditional "macro" wireless cell sites. Crown is a Competitive Local Exchange Carrier ( "CLEC ") in the State of California providing regulated telecommunications services under Certificate of Public Convenience and Necessity ( "CPCN ") #U- 6741 -C. Crown is not a wireless service provider, nor does it provide wireless services to the general public. Instead, Crown is a telephone utility that provides Distributed Antenna Systems ( "DAS ") coverage and capacity solutions primarily to wireless carriers such as Verizon, AT &T and Sprint to name but a few. As a state mandated utility, Crown has expressed rights to access the public right -of -way ( "PROW ") to install its network and to provide regulated services. Therefore, Crown's primary areas of concern are, How does the Ordinance: 1) treat smaller, less intrusive equipment such as DAS in the PROW; and, 2) apply to other entities that use and occupy the PROW, consistent with Public Utilities Code Section 7901 and recent case law. The current Draft Ordinance does not encourage smaller, less intrusive wireless telecommunications equipment such as DAS, especially in the PROW. Although f, several Planning Commissioners have requested that the Ordinance include a Small Cell exemption, no such language exists in the Draft Ordinance. In addition to the Small Cell policy topic, below are specific comments on the Draft Ordinance: Section 20.49.020 Paragraph C (Exempt Facilities) — should include a Small Cell Exemption define with specific dimensions, values, etc Section 20.49.030 Paragraph E (Collocation) — Should be defined as the collocation of multiple utilities on an existing pole. Definition should not be limited to just wireless telecom providers. Section 20.49.030 Paragraph I (Feasible or Feasibility) — should include "economic" or "financial" as factors to consider in determining Feasibility. Section 20.49.030 Paragraph M (Right -of -Way) — is too narrowly defined. The definition of ROW should include not only the surface but the space below and above the ROW surface. In addition, the definition should include the historic and traditional uses of the ROW which include the transmission and conveyance of public facilities such as gas, electric, telephone, water and sewer. These inclusions are important no only because they more accurately depict the reality that is the ROW but because the expanded definition includes those areas where wireless facilities usually occupy in the ROW. Section 20.49.040 Paragraph (A) and (B) [Telecom Facility Preference] — although the addition of Class III (ROW Sites) to the list is a step in the right direction, the list needs to be refined. Visible facilities should be broken down as to size. Surely a Small Cell facility on a light standard is more preferable than a full array of antennas running along the parapet of a building? If nothing else applicants will have a better idea as to what facilities are deemed more desirable by the City. Section 20.49.050 (General Development Design Standards) Paragraph 3 (Size) — is too generic. A preference for Small Cell technologies should be stated. The definition should include dimensions and volume required to qualify for Small Cell designation. Section 20.49.050 (General Development Design Standards) Paragraph 4 (Location) — The Ordinance is internally inconsistent in that it recommends telecom facilities use the existing environment, natural or developed, yet the use of existing utility poles and infrastructure, especially in the ROW, is not encouraged. The Ordinance precludes attachment to traffic signals because of City Staff concerns. Traffic signals have been successfully attached to in countless jurisdictions. P.2of3 Section 20.49.050 (General Development Design Standards) Paragraph D (Setbacks) — Language should be added clarifying that set back requirements of adjacent zones do not apply in the ROW. Section 20.49.050 (General Development Design Standards) Paragraph E (Design Techniques) — the words "as much as practical" should be added when discussing screening of installations from view. Section 20.49.050 (General Development Design Standards) Paragraph E (Design Techniques) Sub - Paragraph 3 (Existing Features) — the word "poles" should be added to the list Section 20.49.050 (General Development Design Standards) Paragraph F (3)(b) — the word "consistent" should be replaced with "substantial conformance' when talking about size, shape, etc. Section 20.49.050 (General Development Design Standards) Paragraph F (6)(b) Support Equipment — The Ordinance lacks a nuanced approach to support equipment location. Often times Small Cells place their support equipment on the utility pole because it is small and inconspicuous. Placing equipment underground is not always the best solution. Besides being costly, vaults have maintenance issues often related to water intrusion. In addition, vaults require vents, which only clutters the ROW with more street furniture. Section 20.49.050 (General Development Design Standards) Paragraph F (6)(b) (3) — The requirement that radios, amplifiers and the like have to be mounted inside a pole "without" increasing the pole diameter" is difficult if not impossible to meet. While it is understood that the City does not want to see the wiring, some latitude with the pole's diameter may be need. A "substantial conformance" review would be preferable, especially if the alternative is vaulting and all the difficulties associated with that. Section 20.49.100 (Operational & RF Compliance and Emission Report) — Given the cost of these reports and the over- whelming pass rate, several Planning Commissioners' mentioned having these reports being required at the discretion of the City. The draft Ordinance currently requires a site specific RF Report for each site. If you have any questions or need additional information regarding these comments, please do not hesitate to contact me. Thank you again for the opportunity to comment, we look forward to working with the City on a new and improved Ordinance. Sincerely, Paul R. O'Boyle, Esq. P. 3 of 3