HomeMy WebLinkAbout1.0_Wireless Telecommunications Facilities Ordinance_PA2012-057CITY OF NEWPORT BEACH
PLANNING COMMISSION STAFF REPORT
September 6, 2012 — Study Session
Agenda Item No. 1
SUBJECT: Wireless Telecommunications Facilities Ordinance (PA2012 -057)
• Code Amendment No. CA2012 -004
PLANNER: James Campbell, Principal Planner
(949) 644 -3210, Icampbell(cDnewportbeachca.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Zoning) and Chapter 15.70 would be rescinded in its entirety.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
Direct staff to modify the proposed draft ordinance as recommended in this report and return
to the Planning Commission with the proposed amendment to the NBMC.
The proposed code amendment is a comprehensive update to the existing Wireless
Telecommunications Facilities Ordinance ( "Telecom Ordinance "). The amendment is
intended to balance the needs of the community and the increasing demand for wireless
networks, while mitigating the impact of Telecom Facilities in the community through
effective design and screening techniques. The proposed amendment is also intended to
reflect current federal and state law, and legal precedent.
This item was introduced to the Planning Commission on July 19, 2012, and was continued
at the request of staff after receiving several letters from telecommunications industry
representatives and interested parties. The Commission requested that staff meet and
confer with the industry representatives or other interested parties. The Commission also
requested the item be presented at a future study session. Staff, industry representatives,
and interested parties met on July 25, 2012. After review of the correspondence previously
received and the meeting on July 25th, staff recommends changes to the draft ordinance
and seeks Commission direction.
Comments. Responses and Recommendations
The following discussion summarizes the primary concerns or issues raised by stakeholders
and staff's response and recommended action. The proposed draft ordinance as provided in
Wireless Telecommunications Facilities Ordinance (PA2012 -057)
September 6, 2012 — Study Session
Page 2
Attachment PC -1, includes highlights and abbreviated comments consistent with the
discussion below.
1. Discretionary Permit Process [Sections 20.49.020 and 20.49.070]
Comment: Industry representatives have requested an administrative process and a limited
use of discretionary review. Additionally, comments suggest that applying the discretionary
process to facilities proposed within the public right -of -way violates state or case law.
Response and Recommendation: One purpose of the proposed ordinance is to provide a
review process and public notice of proposed facilities through the existing land use
entitlement process. Staff believes that the discretionary process is appropriate for visible
facilities whether on public or private property or within the public right -of -way. Additionally,
staff believes the discretionary process is a reasonable exercise of the City's right to control
the time, place and manner Telecom Facilities are established within the public right -of -way.
To address the concern that the discretionary process is applied too broadly, staff
recommends that Class 1 facilities located on both private and public property be
administratively approved without providing notice to the public.
2. Legal Nonconforming facilities [Section 20.49.020 (F)]
Comment: Will existing facilities be required to be changed or phased out in the future?
Response and Recommendation: This subsection provides for the maintenance and
continuation of existing facilities that were lawfully constructed but would be considered
nonconforming because they would not comply with the provisions of the proposed
ordinance. These legal nonconforming facilities would not be required to be modified or
amortized. Future facilities proposed or the future modification of existing facilities would be
required to comply with the adopted Telecom Ordinance. The subsection also provides
guidance for pending applications. Staff recommends that this section be clarified to avoid
any possible confusion as to what standards apply to previously approved facilities and
pending applications.
3. Definitions [Section 20.49.030]
Comment: Definitions are confusing and need to be clarified or modified to be clearer and to
be consistent with federal law. Staff received a comment regarding the location of the
definitions within the Zoning Code.
Response and Recommendation: Staff believes that the location of the definitions is
appropriate given their very specific nature, but recommends that a number of definitions be
clarified and /or eliminated to ease ordinance implementation.
Wireless Telecommunications Facilities Ordinance (PA2012 -057)
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4. Technology requirements [Section 20.49.040]
Comment: Comments were received indicating that the use of, "...the most efficient,
diminutive and least obtrusive technology..." is inappropriate and could theoretically be
used to discriminate among carriers based upon their technology.
Response and Recommendation: The current ordinance in effect provides this policy
language; however, the key factor is that a new facility be unobtrusive. The draft ordinance
includes language in Section 20.49.010 (B) indicating that the Telecom Ordinance cannot
be applied in a manner that as to unreasonably discriminate among providers of functionally
equivalent services. Staff recommends that Section 20.49.040 be modified to stress that
new facilities be designed to be as unobtrusive as possible.
5. Location Preferences [Section 20.49.050]
Comment: The proposed classification system is confusing and should be clarified.
Response and Recommendation: The draft ordinance would create 5 classes of facilities for
the purpose of identifying preferred locations, design standards, and permitting. The 5
proposed classes are: Class 1 (Camouflaged /Screened), Class 2 (Collocation), Class 3
(Visible), Class 4 (Free Standing Structure), and Class 5 (Temporary).
Staff recommends Class 1 facilities be called "Screened /Stealth" as camouflaging a facility
may likely be applied to other classes and might cause confusion as to what classification
applies. Staff also recommends the elimination of Class 2 (Collocation) as it is a design
technique that could also lead to confusion with other classes. Collocation would be
encouraged, but it would not need to be a separate antenna classification. Lastly, staff
recommends the creation of a new class for facilities proposed within the public right -of -way
to establish a separate process to address issues that are unique to locations within the
public right -of -way.
6. Location Preferences, Prohibited Locations [Section 20.49.050 (B)]
Comment: Industry representatives indicate a need to access all zones including residential
areas.
Response and Recommendation: The current ordinance does not allow Telecom Facilities
to be installed on residential lots (including residential portions of Planned Communities or
Specific Plans) or in passive open space zones except under very limited circumstances.
Common area or non - residential lots within residential zones, multi - family buildings, and
collocated installations on existing utility towers in utility easements within passive open
space zones are the only exceptions and they currently require City Council approval. The
proposed ordinance: 1) maintains nearly the same prohibited locations; 2) it provides for
Planning Commission review at public hearings for exceptions to location standards making
access to multi - family areas easier; and 3) it provides access to low- density residential
Wireless Telecommunications Facilities Ordinance (PA2012 -057)
September 6, 2012 — Study Session
Page 4
areas within the public right -of -way. Staff does not recommend any changes to the draft
ordinance.
7. Location Preferences, Installations in the Public Right -of -Way [Section 20.49.050
(C)]
Comment: Industry representatives contend that this section includes unreasonable
limitations on their use of the public right -of -way. They also contend that underground vaults
for support equipment are infeasible and prone to outages during rain events.
Response and Recommendation: The draft ordinance requires compliance with Title 13
(Streets and Highways) and proposed facilities must also comply with Chapter 15.32
( Undergrounding Utilities) of the Municipal Code. The City controls the time, place and
manner in which the public right -of -way is accessed. Antennas can be installed on existing
vertical poles (i.e. streetlights, traffic signals, or other similar structures); however, new
poles within undergrounding districts may not permissible pursuant to provisions of Title 13
and Chapter 15.32 of the Municipal Code. Support equipment, with the exception of
pedestal meters, may be required to be located underground in areas where existing utilities
are underground and Title 13 also requires new support equipment to be placed in
underground vaults whenever feasible. Staff believes that the existing provisions of Title 13
and Chapter 15.32 are consistent with State law and recommends modifying the draft
ordinance to eliminate redundant and potentially conflicting provisions.
8. General Development and Design Standards [Section 20.49.060]
Comment: Industry representatives indicate that this section is burdensome and is unfair
treatment of Telecom Facilities (i.e. Edison is not held to the same standard).
Response and Recommendation: The emphasis on making Telecom Facilities as
inconspicuous as possible is a requirement of the Telecom Ordinance currently in effect.
Telecom providers are not public utilities, and therefore, the City can apply development
standards and a review process to ensure that new facilities are appropriately located and
designed to be screened or otherwise inconspicuous. Staff does not recommend any
changes to the draft ordinance.
9. Height [Section 20.49.060 (C)]
Comment: The telecom industry almost universally wants taller facilities to provide
clearance from nearby structures and to provide wider coverage to meet the demands of
their customers who visit or reside in the City. They also do not want to be subject to a
Variance process if there is a need for a facility taller than allowed.
Response and Recommendation: The ordinance currently in effect allows Telecom Facilities
on private property to be no taller than the upper height limit (e.g. 35 feet in the 26/35 -foot
height limitation zone). The City Council can authorize an additional 15 feet and without a
Wireless Telecommunications Facilities Ordinance (PA2012 -057)
September 6, 2012 — Study Session
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public hearing. The current code does not allow taller facilities as there is no Variance
process.
The proposed draft ordinance would change the height requirements stated above by
allowing Telecom Facilities to be 5 feet above the base height limit (e.g. 26 feet in the
26/35 -foot height limitation zone + 5 feet = 31 feet). This standard treats Telecom Facilities
similar to how sloped roofs, elevator shafts, and screened rooftop mechanical equipment
are allowed to exceed the based height limit. Discretionary review would be required for a
proposal above this standard up to the upper height limit (e.g. 35 -feet in the 26/35 -foot
height limitation zone). A Variance, with no limitation on height, would be required for
facilities to exceed the upper height limit. Staff recommends several modifications to this
section to provide additional clarity, but no change to the proposed standard or process
requirements
Telecom Facilities within the public right -of -way on streetlights or other structures are limited
to 35 feet and antennas proposed on existing power transmission lines that are taller than
35 feet cannot be taller than the existing pole. Again, the City Council has the ability to
authorize requests up to 15 additional feet. The draft ordinance does not propose to
change these provisions.
10. Setback Standards [Section 20.49.060 (D)]
Comment: Industry representatives contend that the proposed "fall zone" setback is
unnecessary and restrictive given compliance with building codes.
Response and Recommendation: The proposed draft ordinance includes an additional
setback distance of 110% of the facility's height as a "fall zone" setback. Staff believes the
additional setback is unnecessary and recommends its elimination. All required minimum
zoning setbacks would apply and deviation from setbacks would be processed as a typical
Modification Permit or Variance rather.
11. Screening Standards [Section 20.49.060 (F)]
Comment: Comments suggested that this section is too restrictive, partially duplicative of
the definitions of antenna classes, and in need of clarification or exceptions to screening
requirements when specific requirements are considered infeasible.
Response and Recommendation: This subsection provides standards for screening
antennas and support equipment for the 5 proposed antenna classes. Staff recommends
that this section be modified to reflect the elimination of the collocation class, creation of the
public right -of -way class, and to allow a decision -maker the ability to allow exceptions when
specified screening or design requirements are infeasible.
Wireless Telecommunications Facilities Ordinance (PA2012 -057)
September 6, 2012 — Study Session
Page 6
12. Permit Review Procedures [Section 20.49.070]
Comment: Concerns have been raised about burdensome review procedures and one
comment questioned the elimination of specific application submittal requirements.
Response and Recommendation: This section establishes the review authority for the
various antenna classes based upon location. Staff recommends this section be modified to
reflect that Class 1 be administratively considered without public notice and that Class 2 be
modified to only address proposed facilities within the public right -of -way. Staff also
recommends that most applications be reviewed by the Zoning Administrator (with public
hearings) and only those visible, freestanding structures such as monopoles or tower arrays
(the most obtrusive designs) be subject to Planning Commission review (with public
hearings). Additional clarification for internal consistency with other changes will be
necessary. The Zoning Code provides for application submittal requirements to be
established by the Community Development Director rather than by ordinance as it provides
appropriate flexibility for differing application types. The current submittal requirements
identified by the current ordinance will be included in an updated application.
13. License Agreements for City -Owned Property [Section 20.49.090]
Comment: Comments were raised regarding a need to streamline the process and one
comment suggests there is a policy to force providers on City property to collect a fee in
conflict with state law.
Response and Recommendation: A license agreement for the use of City owned structures
or property is required by the current Telecom Ordinance and would remain a requirement
with the proposed draft ordinance. Consideration of the license agreement is required to
occur after a proposed telecom facility is approved. An applicant is required to pay a lease
fee established by the City Council and the current monthly fee is $1,500 per month. The
City does not require a franchise fee in violation of State law of a public utility. Staff
recommends that this section be revised to allow for concurrent processing of a telecom
facility and a license agreement.
14. Modification of existing facilities [Section 20.49.100]
Comment: Concerns were raised suggesting that the proposed provisions relating to the
modification of existing Telecom Facilities are too restrictive and confusing. Additionally,
industry representatives claim that this section would violate federal regulations and need
further clarification.
Response and Recommendation: This section is entirely new and it was drafted in response
to 2012 federal regulations that require administrative review of minor changes to existing
facilities. Federal law prohibits a state or local government from denying a request to modify
an existing facility under particular conditions when the modification does not "substantially
change the physical dimensions of a tower or base station." Federal law does not define
Wireless Telecommunications Facilities Ordinance (PA2012 -057)
September 6, 2012 — Study Session
Page 7
what change is considered "substantial' and industry representatives have indicated that
10% is an appropriate standard. Staff recommends this section be simplified for ease of use
and recommends a 5% standard due to the need to review more extensive proposals to
ensure that public views are protected and visual impacts are avoided.
15. Radio Frequency (RF) Emissions Reporting [Section 20.49.110]
Comment: Required reports are unnecessary and burdensome given FCC oversight. Staff
also received comments regarding an industry concern about the use of RF emissions as a
consideration in the review of applications.
Response and Recommendation: Compliance with FCC regulations regarding Radio
Frequency (RF) emissions is mandatory and the proposed draft ordinance simply requires
operators to demonstrate compliance. Demonstrating compliance should not be considered
a burden as it is an industry requirement and staff does not recommend any changes to this
section. The City acknowledges that RF emissions are under the jurisdiction of the FCC and
considering RF emissions in the course of project review for FCC compliant facilities is
precluded by federal law.
Summary
Staff recommends a series of changes to the proposed draft ordinance to reflect comments
received to date. The most noteworthy change is to allow administrative review of Class 1
facilities and the elimination of the "fall zone" setback requirement. The remaining changes
are intended to provide clarification and simplification. With these changes, staff believes
the needs of the industry will be appropriately balanced with the desire to establish
appropriate standards and public review.
Next Steps
Based upon Commission direction and public feedback, staff will prepare a revised draft
ordinance that will be published well in advance of any future public hearing to allow
sufficient time for review by the public, stakeholders, and the Commission.
Prepared by: Submitted by:
W k 22 ( A")6aA-d-"
Jaaes Campbell, Principal Pla ner Br n la Wisnest i, rlCP, Deputy Director
ATTACHMENTS
PC 1 Draft Ordinance highlighted for staff recommended changes
PC 2 Comment Letters
Intentionally Blank
Attachment PC -1
Intentionally Blank
EXHIBIT "A"
Chapter 20.49 — Wireless Telecommunications Facilities
Sections:
20.49.010 —Purpose and Intent
20.49.020 — General Provisions
20.49.030 — Definitions
20.49.040 — Available Technology
20.49.050 — Location Preferences
20.49.060 — General Development and Design Standards
20.49.070 — Permit Review Procedures
20.49.080 — Permit Implementation, Time Limits, Duration, and Appeals
20.49.090 — Agreement for Use of City -owned or City -held Trust Property
20.49.100 — Modification of Existing Telecom Facilities
20.49.110 — Operational and Radio Frequency Compliance and Emissions Report
20.49.120 — Right to Review or Revoke Permit
20.49.130 — Removal of Telecom Facilities
20.49.010 — Purpose and Intent.
A. Purpose. The purpose of this Chapter is to provide for wireless telecommunication facilities
( "Telecom Facilities ") on public and private property consistent with federal law while
ensuring public safety, reducing the visual effects of telecom equipment on public
streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating
the impacts of such facilities. More specifically, the regulations contained herein are
intended to:
1. Encourage the location of Antennas in non - residential areas.
2. Strongly encourage Collocation at new and existing Antenna sites.
3. Encourage Telecom Facilities to be located in areas where adverse impacts on the
community and public views are minimized.
B. 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 — General Provisions.
A. Applicability. These regulations are applicable to all Telecom Facilities providing 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 of any Telecom Facility in the City, the applicant shall obtain a
Minor Use Permit (MUP), Conditional Use Permit (CUP), or Limited Term Permit (LTP),
depending on the proposed location and Antenna Classes, in accordance with Section
20.49.070 (Permit Review Procedures).
7,,,. Provide for some
administrative approvals Page
2. Applicants who obtain a MUP, CUP or LTP (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
20.49.090 (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.
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.
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 is lawfully constructed, erected,
or approved prior to the effective date of this Chapter, or for which the application for a
proposed Telecom Facility is deemed complete prior to the effective date of this Chapter, 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 otherwise
approved and constructed. Legal nonconforming Telecom Facilities shall comply at all times
with the laws, ordinances, and regulations in effect at the time the application was deemed
complete, and any applicable federal and state laws as they may be amended or enacted,
and shall at all times comply with any conditions of approval.
Amortizing exiting facilities not required;
clarify language
Page 12
modify and clarify as necessary to
20.49.030 — Definitions. eliminate conflicts, enhance
understanding, and utilization
For the purposes of this Chapter, the following definitions shall apply:
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.
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, all of
which elements are deemed to be part of the Antenna.
Antenna Classes. Antenna Classes are Telecom Facilities and the attendant Support
Equipment separated into distinct "antenna classes."
Base Station. Base Station means the electronic equipment at a Telecom Facility installed and
operated by the Telecom Operator that together perform the initial signal transmission and
signal control functions. Base Station does not include the Antennas and Antenna support
structure, or the Support Equipment, nor does it include any portion of DAS.
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 is not limited to City Hall, Police and Fire
facilities, recreational facilities, parks, libraries, monuments, signs, streetlights and traffic control
standards.
Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are
installed on the same building or structure.
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.
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.
Feasible. Feasible means capable of being accomplished in a successful manner within a
reasonable period of time, taking into account environmental, physical, legal and technological
factors.
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.
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.
Page 13
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.
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.
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.
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
cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters.
Support Equipment does not include the Base Station, DAS, Antennas or the building or
structure to which the Antennas are attached.
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.
Utility Pole. Utility Pole means a single freestanding pole used to support services provided by
a public or private utility provider.
Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or steel
pole used to support electric transmission facilities.
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 light standard which is replaced with a new light
standard to permit the addition of Antennas shall not be considered a Wireless Tower, but rather
a replacement light standard.
`EM
20.49.040 — Available Technology.
All Telecom Facilities approved under this Chapter shall utilize the most efficient, diminutive,
and least obtrusive available technology in order to minimize the number of Telecom Facilities in
the City and reduce their visual impact on the community and public views.
20.49.050 — Location Preferences. Reconsider terminology
A. Preferred Locations. The following is the order of preference for the location and
installation of Telecom Facilities, from highest priority location and technique to lowest.
Antenna Classes are the Telecom Facilities and their attendant accessory/Support
Equipment separated into the following distinct Antenna Classes based on observed
aesthetic impacts, as follows: consider "screened /stealth" rather than camouflaged
Class 1 (Camouflaged /Screened): A Telecom Facility with Antennas mounted on an existing
or proposed non - residential building or other structure not primarily intended to be an
antenna support structure. The Antennas, Base Station, and Support Equipment are fully
screened so that they are not visible to the general public. Typical examples include:
Wall or roof mounted Antennas that are screened behind radio - frequency transparent,
visually- opaque screen walls that match or complement existing exterior surfaces of the
building or structure to which they are attached.
Antennas designed to be incorporated within an architectural feature of a building or
structure such as a steeple, cross, cupola, sign, monument, clock tower or other
architectural element.
• Base Station equipment that is contained within an existing structure, or placed into a
new attached structure that matches or complements the existing exterior surfaces of
the building or structure convert Class 2 to address facilities in the nuhlir. rial
Class-2 (Collocation): A Telecom Facility with Antennas and /or Base Stations co- located on
an approved existing Telecom Facility and mounted in the same manner with materially the
same or improved screening, or the same camouflage design techniques as the approved or
existing Telecom Facility. Class 2 Collocation Telecom Facilities also may incorporate flush -
to -grade underground Base Station 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.
Class 3 (Visible): A Telecom Facility with Antennas mounted on an existing non - residential
building, structure, pole, light standard, Utility Tower, and /or Lattice Tower. The structure is
treated with some camouflage design techniques, but the Antenna panels and some
portions of the pole, light standards, Utility Tower, or Lattice Tower are still visible. Typical
examples include:
Antennas mounted on the exterior of an existing building so that the panels are visible,
but painted to match the color and texture of the building or structure.
Antennas flush- mounted atop an existing pole or light standard that are unscreened or
un- camouflaged, or attached to an existing pole or light standard utilizing a cylindrical
Antenna unit that replicates the diameter and color of the pole or standards.
Antenna panels installed on existing electrical or other Utility Towers, or existing Lattice
Towers.
Page 15
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. The
Telecom Facility is designed to replicate a natural feature or is a Monopole or Lattice Tower.
The Antennas are either unscreened and visible, or camouflaged /designed to blend in with
their surroundings. Typical examples include:
Antennas mounted inside or behind elements that replicate natural features such as
rocks and shrubbery and located in hillsides or other natural areas where the Telecom
Facility blends into the surrounding vegetation or topography (e.g. false rocks or
shrubbery).
A Telecom Facility consisting of Antennas mounted on or inside a freestanding structure
that uses camouflage to disguise the Antennas (e.g. monotree, flagpole, or other
freestanding structure).
A Telecom Facility consisting of Antennas on the exterior of a freestanding structure that
is unscreened /un- camouflaged (e.g. Monopoles or Lattice Tower).
Class 5 (Temporary): A Wireless Tower, Antennas and /or Base Station, and associated
Support Equipment system that is a temporary Telecom Facility on a site until a permanent
(separately approved) Telecom Facility to provide coverage for the same general area is
operational but such placement of a temporary Telecom Facility shall not exceed 1 year,
consistent with Section 20.52.040. A Wireless Tower, Antennas and /or Base Station, and
associated Support Equipment system that is a temporary Telecom Facility located on a site
in connection with a special event, as that term may be defined in Municipal Code Section
11.03.020 (General Provisions), may be allowed only upon approval of a Special Events
Permit, as regulated by Chapter 11.03. Class 5 installations include but are not limited to
equipment mounted on trailers, trucks, skids, or similar portable platforms.
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 PC District designation.
2. On properties zoned for multi -unit residential development and mixed -use development
consisting of four (4) dwelling units or less.
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 Telecom
Facility. no change in policy
C. 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, and notwithstanding any
provisions contained in Title 13 to the contrary, shall be subject to the following:
1. All Support Equipment shall be placed below grade in the public right -of -way where the
existing utility services (e.g., telephone, power, cable TV) are located underground.
Exception: Any pedestal meter required for the purpose of providing electrical service
power for the proposed Telecom Facility may be allowed to be installed above ground in
a public right -of -way.
2. Whenever Feasible, new Antennas proposed to be installed in public right -of -way shall
be placed on existing or replacement utility structures, light standards, or other existing
vertical structures.
3. Any proposed installation in the public right -of -way shall comply with all requirements of
the Americans with Disability Act (ADA), and all other laws, rules, and regulations.
Simplify and eliminate any redundant or Page 16
conflicts with Title 13 with no chanqe in policy
D. Collocation Installations.
1. When Required. To limit the adverse visual effects of and proliferation of individual
Telecom Facilities in the City, a new Telecom Facility proposed within one thousand
(1,000) feet of an existing Telecom Facility shall be required to collocate on the same
building or structure as the existing Telecom Facility. Exception: If the reviewing
authority determines, based on compelling evidence submitted by the applicant, that
Collocation of one or more new Telecom Facilities within one thousand (1000) feet of an
existing Telecom Facility is not Feasible, and all findings required to grant approval of a
MUP, CUP or LTP for a Telecom Facility can be met, then such Collocation shall not be
required.
2. Condition Requiring Future Collocation. In approving a Telecom Facility, the review
authority may impose a condition of approval providing for future Collocation of Telecom
Facilities by other carriers at the same site.
20.49.060 — General Development and Design Standards. no change Other
than clarification
A. General Criteria. All Telecom Facilities shall employ design techniques to minimize visual
impacts and provide appropriate screening to result in the least intrusive means of providing
the service. Such techniques shall be employed to make the installation, appearance and
operations of the Telecom Facility as visually inconspicuous as possible. To the greatest
extent Feasible, Telecom Facilities shall be designed to minimize the visual impact of the
Telecom Facility by means of location, placement, height, screening, landscaping, and
camouflage, and shall be compatible with existing architectural elements, building materials,
other building characteristics, and the surrounding area. Where an existing structure is
replaced to allow for the addition of a Telecom Facility, the replacement structure shall retain
as its primary use and purpose that of the prior- existing structure. For an example, where a
streetlight standard is replaced with a different streetlight standard to allow for the additional
installation of Antennas, the primary use shall remain as a streetlight.
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 or
LTP 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, screened or
camouflaged 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 Telecom Facility, including topography,
vegetation, buildings, or other structures to provide the greatest amount of visual
screening and blending with the predominant visual backdrop.
B. Public View Protection. Telecom Facilities involving a site adjacent to an identified public
view point or corridor, as identified in General Plan Policy NR 20.3 (Public Views), shall be
reviewed to evaluate the potential impact to public views consistent with Section 20.30.100
(Public View Protection).
Page 17
C. Height. All Telecom Facilities shall comply with Antenna height restrictions, if any, required
by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport
Environs Land Use Plan (AELUP) for John Wayne Airport and Airport Land Use
Commission (ALUC) Review Requirements) as may be in force at the time the Telecom
Facility is permitted or modified.
Maximum Height. Antennas shall be installed at the minimum height possible to provide
average service to the Telecom Operator's proposed service area. In any case, no
Antenna or other telecom equipment or screening structure shall extend higher than the
following maximum height limits:
a. Telecom Facilities installed on existing streetlight standards, traffic control standards;
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.
b. 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 Antenna does not extend above the top of the Utility Pole
or Utility Tower.
c. Telecom Facilities installed in ground- mounted flagpoles may be installed at a
maximum height of 35 feet in nonresidential districts only, and 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. As a condition of approval, flagpole sites shall
comply with 4 U.S.C. § 1 et seq. (the "U.S. Flag Code ").
d. Telecom Facilities may be installed on buildings or other structures to extend up to 5
feet above the base height limit established in Part 2 (Zoning Districts, Allowable
Uses, and Zoning District Standards) for the zoning district in which the Telecom
Facility is located.
e. Applications for the installation of Telecom Facilities proposed to be greater than 5
feet above the base height limit may be installed up to the maximum height limit for
the zoning district in which the Telecom Facility is located in accordance with Sectior
20.30.060.C.2 (Height Limit Areas), subject to review and action by the Planning
Commission. The Planning Commission may approve or conditionally approve a
CUP for a Telecom Facility to exceed the base height limit by more than 5 feet after
making all of the required findings in Section 20.49.070.11 (Permit Review
Procedures).
2. Over - Height Buildings or Structures. Stealth Telecom Facilities may be installed within or
on structures that are permitted to exceed the height limit for the zoning district in which
the structure is located, either by right under Title 20 or which have received a
discretionary approval, so long as the height of the structure is not being increased. The
standard of review shall be based on the type of installation and Antenna Classes being
used.
D. Setbacks. Proposed Telecom Facilities shall comply with the required setback established
by the development standards for the zoning district in which the Telecom Facility is
proposed to be located. Setbacks shall be measured from the part of the Telecom Facility
closest to the applicable lot line or structure. For ground- mounted Wireless Towers installed
on public property or private property, unless the review authority determines a smaller
setback would be appropriate based on the surrounding development or uses, the setback
`.V-
shall be the greater of: a) the required setback established by the development standards
for the zoning district in which the Telecom Facility is proposed to be located; or b) 110% of
the maximum height of the Wireless Tower including any Antenna or Antenna enclosures
attached thereto. eliminate 110% of height setback
E. Design Techniques. Design techniques shall result in the installation of a Telecom Facility
that is in scale with the surrounding area, hides the installation from predominant views from
surrounding properties, and prevents the Telecom Facility from visually dominating the
surrounding area. Design techniques may include the following:
1. Screening elements to camouflage, 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, camouflage, or hide the Telecom Facility.
4. Utilizing simulated natural features (trees, rocks, etc.) to screen, camouflage, or hide the
Telecom Facility. clarify
5. Providing Telecom Facilities of a size that, as determined by the City, is not visually entire
obtrusive such that any effort to screen the Telecom Facility would create greater visual subsectio
impacts than the Telecom Facility itself.
and allow
F. Screening Standards. Following is a non - exclusive list of potential design and screening oecisu
techniques that should be considered based on the following Antenna Classes: maker
For Class 1 (Camouflaged /Screened) Antenna Installations: `
a. All Telecom Facility components, including all Antenna panels and Support Equipment,
shall be fully screened, and mounted either inside the building or structure, or behind the
proposed 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 conditions where the Antennas and Support Equipment are installed within a new
freestanding structure, (an architectural feature such as a steeple, religious symbol or
tower, cupola, clock tower, sign, etc.), the installation shall blend in the predominant
visual backdrop so it appears to be a decorative and attractive architectural feature.
2. For Class 2 (Collocation) Antenna Installations:
a. A Collocation installation shall use screening methods materially similar to those used on
the existing Telecom Facility and shall not diminish the screening of the existing
Telecom Facility.
b. If determined necessary by the review authority, use of other improved and appropriate
screening methods may be required to screen the Antennas, Base Station, and Support
Equipment from public view. eliminate collocation and modify as necessary
3. For Class 3 (Visible) Antenna Installations: address facilities in public tight -of -way
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
`.O-
Antennas are mounted. No cables and mounting brackets or any other associated
equipment or wires shall be visible from above, below or the side of the Antennas.
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.
c. Antenna installations in the public right -of -way and /or on an existing or replacement
streetlight pole or traffic control standard shall be limited to Antennas, Supporting
Equipment, and cable components that are compatible in scale and proportion to
streetlights and traffic control standards and the poles on which they are mounted. All
transmission or amplification equipment such as remote radio units, tower mounted
amplifiers and surge suppressors shall be mounted inside the streetlight pole or traffic
control standard without increasing the pole width or shall be mounted in a flush -to-
grade enclosure adjacent to the base of the pole.
d. Antenna installations on existing or replacement streetlight poles, traffic control
standards, 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. 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 existing pole.
e. Antennas shall be mounted on existing poles wherever Feasible. If a new pole is
proposed to replace the existing pole, the replacement pole shall be consistent with the
size, shape, style and design of the existing pole, including any attached light arms.
4. For Class 4 (Freestanding Structure) Antenna Installations:
a. For a false rock, the proposed screen structure shall match in scale and color other rock
outcroppings in the general vicinity of the proposed site. A false rock screen may not be
considered appropriate in areas that do not have natural rock outcroppings.
b. The installation of a false tree (such as but without limitation a monopine or monopalm,
or false shrubbery) 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. For false trees or
shrubbery installations, all Antennas and Antenna supports shall be contained within the
canopy of the tree design, and other vegetation comparable to that replicated in the
proposed screen structure shall be prevalent in the immediate vicinity of the antenna
site, and the addition of new comparable living vegetation may be necessary to enhance
the false tree or shrubbery screen structure.
c. The installation of a new Monopole or Lattice Tower is prohibited unless the applicant by
use of compelling evidence can show to the satisfaction of the review authority that
higher priority locations or Stealth Facilities are either not available or are not Feasible.
For Class 5 (Temporary) Antenna Installations:
a. 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 Telecom Facility.
Page 110
6. Support Equipment. All Support Equipment associated with the operation of any Telecom
Facility including but not limited to the Base Station shall be placed or mounted in the least
visually obtrusive location possible, and shall be screened from view. The following is a
non - exclusive list of potential screening techniques that may be utilized based on the type of
installation:
a. Building- Mounted Facilities. For building or structure - mounted Antenna installations,
Support Equipment for the Telecom Facility may be located inside the building, in an
underground vault, or on the roof of the building that the Telecom Facility is located on,
provided that both the equipment and screening materials are painted the color of the
building, roof, and /or surroundings. All screening materials for roof - mounted Telecom
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.
b. Freestanding Facilities. For freestanding Telecom Facilities installations, not mounted on
a building or structure, Support Equipment for the Telecom Facility:
Shall be visually screened by locating the Support Equipment in a fully enclosed
building or in an underground vault, or
Shall be screened in a security enclosure consisting of walls and /or landscaping
to effectively screen the Support Equipment at the time of installation. 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.
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 or
camouflaged to blend with surrounding materials and colors.
c. Installations in a Public Right -of -Way. 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.
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 required 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 Telecom 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.
Page 111
Nonconformities. A proposed Telecom Facility shall not create any new or increased
nonconformities 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.
J. Maintenance. The Telecom Operator shall be responsible for maintenance of the Telecom
Facility in a manner consistent with the original approval of the Telecom Facility, including
but not limited to the following:
1. Any missing, discolored, or damaged camouflage or 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 or dying.
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 Facility 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.
20.49.070 — Permit Review Procedures.
The procedures and requirements for preparation, filing, and processing of a permit application
for a Telecom Facility shall be as specified in Chapter 20.50 (Permit Application Filing and
Processing) unless otherwise noted below.
A. Permit Required. All applicants for Telecom Facilities shall apply for a MUP, CUP or LTP,
from the Community Development Department, depending on the Antenna Class, height,
and duration, as specified in the table below:
Table 4 -1
Permit Requirements for Telecom Facilities
Antenna Cla
Location of Proposed Telecom Facility
Located in a
Located inside or
Located inside or
modify to reflect
changed
Nonresidential
within 150 feet of any
within 150 feet of
District more than
Open Space District
any Residential
classifications, add
150 feet from a
or Public Park or
District or
administrative
Residential (or
Public Facility zoned
Equivalent PC
approvals, and
Equivalent PC)
PR or PF
District
fewer instances
District or Open
where Planning
Space District or
Commission review
Public Park or
Public Facility
is require
zoned PR or PF
Class 1 Antenna (a)
MUP
MUP
MUP
(Camouflaged /Screened )
Class 2 Antenna (a) (b)
MUP
MUP
CUP
(Collocation)
Class 3 Antenna (a)
MUP
MUP
CUP
Visible
Page 112
Antenna Class
Location of Proposed Telecom Facility
Class 4 Antenna (a) (c)
MUP
CUP
CUP
(Freestanding Structure
Class 5 Antenna (a) (c) (d)
LTP
LTP
LTP
(Temporary)
(a) Any application for a Telecom Facility that proposes to exceed the base height limit of
the applicable zoning district in which the Telecom Facility is located by greater than five
(5) feet shall require review and action of a CUP by the Planning Commission. Pursuant
to this provision, an application that would otherwise be subject to review by the Zoning
Administrator would become subject to review by the Planning Commission. The
Planning Commission may approve or conditionally approve a CUP, subject to the
required findings in Subparagraph H, below.
(b) The review procedure for Collocated Telecom Facilities shall be consistent with the
applicable review procedure as identified elsewhere in this table depending on the type
of installation and Antenna Class being proposed for the Collocation, unless the
Collocated Telecom Facility meets the requirements of California Government Code §
65850.6, or involves the Collocation of new transmission equipment and is consistent
with the provisions in Section 20.49.100 (Modification of Existing Telecom Facilities).
(c) Antennas mounted on or within flagpoles, and temporary Telecom Facilities shall not be
permitted on properties either used or zoned residentially.
(d) Temporary Telecom Facilities shall be subject to the standard of review for an LTP,
pursuant to Section 20.52.040 (Limited Term Permits).
B. Application Submission Requirements for Telecom Facilities on City -owned or City -
held Trust Properties. Prior to the submittal for any application for any Telecom 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.
C. Fee. All costs associated with the permit application review shall be the responsibility of the
applicant, including any expense incurred for any outside technical or legal services in
connection with the application.
D. Review Process. Review of applications for all Telecom Facilities in City shall be consistent
with Chapter 20.50 (Permit Application Filing and Processing), and the FCC Declaratory
Ruling FCC 09 -99 ( "Shot Clock ") deadlines.
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 Telecom Facility to an existing Telecom Facility resulting
in the establishment of a Collocated Telecom Facility shall be a permitted use not requiring
a discretionary permit provided the underlying Telecom Facility was granted a discretionary
permit and was subject to either an environmental impact report, mitigated negative
declaration or negative declaration. If such a Collocated Telecom Facility does not satisfy
all of the requirements of Government Code section 65850.6, it shall be reviewed pursuant
the review procedures contained in Section 20.49.070 (Permit Review Procedures).
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.
Page 113
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 Telecom 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 Telecom Facility
shall require a public notice, and a public hearing shall be conducted, in compliance with
Chapter 20.62 (Public Hearings).
H. Required Findings for Telecom Facilities. The following findings shall apply to all
Telecom Facilities:
1. General. The review authority indicated in Table 4 -1 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 technology, height, location and desigr
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 Antenna construction plan that would result in a higher priority Antenna
Class category for the proposed Telecom Facility is not available or reasonably Feasible
and desirable under the circumstances.
2. Findings to Increase Height. The review authority may approve, or conditionally approve
an application for a Telecom Facility which includes a request to exceed the base height
limit for the zoning district in which the Telecom Facility is located by more than 5 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.
20.49.080 — 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 114
20.49.090 — 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 or LTP. Upon the
issuance of a MUP, CUP or LTP, as required, and upon entering into an agreement, the
applicant shall obtain any and all other necessary permits, including, encroachment permits for
work to be completed in the public right -of -way, 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. allow for concurrent processing of
20.49.100 — Modification of Existing Telecom Facilities. Ifacility and license agreement
Notwithstanding any provision in this Chapter of the Zoning
an existing Wireless Tower or Base Station that involves:
a. The Collocation of new transmission equipment;
b. The removal of existing transmission equipment; or
c. The replacement of existing transmission equipment
a request for a modification of
ntain 5% threshold
shall be subject to a ministerial review and approval without the processing of a discretionary
permit provided that such modification does not substantially change any of the physical
dimensions of such Wireless Tower or Base Station from the dimensions approved as part of
the original discretionary permit for the Wireless Tower or Base Station.
However, any modification to a Wireless Tower or Base Station which substantially changes the
physical dimensions of either the Wireless Tower or Base Station, and any other modification to
a Telecom Facility that does not qualify as a Wireless Tower or Base Station, shall be subject to
the permits and authorizations required by this Chapter.
"Substantially Change the Physical Dimensions" means any of the following, and refers to a
single change, or a series of changes over time (whether made by the same or different entities)
viewed against the City approval(s) for the Wireless Tower or Base Station as existing on
February 22, 2012, that individually or cumulatively have any of the effects described below:
a. Changing any physical dimension of the Wireless Tower or Base Station in a manner that
creates a violation of any safety code adopted by the City, or by the state or federal
government.
b. Changing the physical dimension of a Stealth Facility on a Wireless Tower, where the
changes would be inconsistent with the design of the Stealth Facility, or make the Wireless
Tower more visible.
c. Changing the physical dimension would require work that would intrude upon the public
right -of -way, or any environmentally sensitive area.
d. Increasing or decreasing by five percent (5 %) or more any of the following:
Page 115
• The height, width, or depth in any direction of any portion of the Wireless Tower or Base
Station; or
• The area required for structures required to support the Wireless Tower, including but
not limited to guy wires as approved and constructed through the discretionary permit
process
Provided that in no event shall the height is increased to exceed the maximum height
permitted in the applicable zoning district under the City's regulations.
Increasing by more than five percent (5 %) any of the height, width, depth or area
encompassed within any structure or object enclosing the Wireless Tower, such as a fence
or line of shrubs or bushes.
Increasing any of an existing Antenna Array's depth, circumference, or horizontal radius
from the Wireless Tower in any direction by more than five percent (5 %).
Adding more than two Antenna Arrays to an existing Wireless Tower, or adding Antenna
Arrays that, if the Antenna Array were an existing Antenna Array, would be of such depth,
circumference or radius as to fall outside of item f (above), unless such Antenna Arrays were
approved pursuant to Government Code Section 65850.6.
The mounting of the new or replacement transmission equipment would involve installing
new equipment cabinet(s) not permitted under the initial approval and that will not fit within
the existing enclosure for the Wireless Tower or Base Station, or would require installation of
a new cabinet or enclosure, excluding new equipment and cabinets that will be installed
underground. (Note: the proposed installation of a power back -up system [i.e., gas /diesel
generator, fuel cell, battery system, etc.] is not Collocation of new transmission equipment.)
Any increase in any physical dimension of a Wireless Tower or Base Station or any
equipment related thereto or any enclosure thereof at a Legal Nonconforming Facility.
Each application submitted under this section for a modification to an existing Wireless Tower or
Base Station 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 Wireless Tower as originally constructed, if available;
a current photograph of the existing Wireless Tower and /or Base Station; and, a graphic
depiction of the Wireless Tower and /or Base Station after modification showing all
relevant dimensions;
3. A 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 to be performed will not
trigger discretionary review under this section.
Any permit issued will be conditioned, and may be revoked, and the Telecom Facility required to
be removed or restored to its pre- modification condition if:
a. Any material statement made with respect to the Telecom Facility is false; or
b. The modifications as actually made would have triggered a discretionary review. no change
20.49.110 — 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
Page 116
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 Telecom 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 Telecom Facility operating at its maximum effective radiated power level,
rather than on estimations or computer projections. If the report shows that the Telecom 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 that use of the
Telecom 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.
A qualified independent radio frequency engineer, selected and under contract to the City, may
be retained to review said certifications for compliance with FCC regulations. All costs
associated with the City's review of these certifications shall be the responsibility of the
permittee, which shall promptly reimburse City for the cost of the review.
20.49.120 — Right to Review or Revoke 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.
20.49.130 — 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
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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 Telecom 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 the Telecom Facility, the City may, but shall not be required to, store
the removed Telecom Facility or any part thereof. The owner of the premises upon which
the abandoned Telecom Facility was located and all prior operators of the Telecom
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 Telecom 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 Section D.
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Attachment PC -2
Intentionally Blank
atBLt
Delivered via Email
The Honorable Michael Toerge
Chairman, Planning Commission
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Item 5a: Additional Material Received
Planning Commission July 19, 2012
Kyle C. Powell AT&T Services, Inc. T: 916.341.3504
General Attorney 1215 K Street, Suite 1800 F: 916.443.6836
Sacramento, CA 95814 kyla.powellOatt.com
Subject: Proposed Amendment to Wireless Telecommunications Facilities Ordinance (PA2012 -057),
Code Amendment No. 2012 -004
Dear Chairman Toerge:
AT &T appreciates the opportunity to provjde comments to the Planning Commission on the proposed
amendment to the City of Newport Beach`s (City) Wireless Telecommunications Facilities Ordinance.
AT &T has been providing communications service in Southern California for over a hundred years and its
affiliate has been providing wireless telecommunications services since the late 1980's. AT &T is eager to
work with the City in its efforts to address concerns about placement of wireless facilities within the
City.
AT &T is most concerned about aspects of the proposed amendments that would directly impact the
ability of the wireless telecommunications industry to provide service to residents, businesses and
visitors in Newport Beach, who rely on cellphones and other wireless devices in their daily lives. As you
are no doubt aware, the proposed amendments would affect not only cellphones, but wireless data of
all kinds (including audio signals, video signals, computer files, e-mail and data of all kinds that now use
wireless transmission) are affected.
Over all, we believe the proposed amendments are overly specific and restrictive and could give rise to a
host of future issues and problems that may require further ordinance modifications. For example, by
providing unique definitions of terms like "base station" that deviate from specific federal law
definitions and is but one component of a wireless facility under 47 U.S.C.A 332, the City risks running
afoul of Section 332 protections, creating a prohibition on wireless service, and having the entire
ordinance preempted. We recommend that the City instead treat wireless facilities more like other
facilities and not regulate them. Below, we provide the applicable law and our specific concerns.
APPLICABLE LAW
The federal Telecommunications Act of 1996, 47 U.S.C.A. 151 et seq. (1996) regulates the deployment of
wireless telecommunication service. Section 332(c)(3) gives the FCC certain authority that is exclusive
and which preempts conflicting acts by state or local governments. Section 332(c)(3)(7) of the Act,
while recognizing that local zoning authority is preserved, requires that local regulation not
"unreasonably discriminate among providers of functionally equivalent services" and not "prohibit or
have the effect of prohibiting the provision of personal wireless services."
July 18, 2011
Page 2
Also recently enacted at the federal level, section 6409(a) of the Middle Class Tax Relief and Job
Creation Action of 2012 (47 U.S.C.A. § 1455(a)(2012)) provides that "a State or local government may
not deny, and shall approve, any eligible facilities request for a modification of an existing wireless
tower or base station that does not substantially change the physical dimensions of such tower or base
station." An "eligible facilities request" includes any request to modify an existing wireless tower or base
station that involves collocation, removal, or replacement of transmission equipment. (Id.)
California state law also impacts placement of communication facilities within the public rights -of -way.
Wireless and wireline carriers, as "telephone corporations," have access rights to the public rights -of-
way under Section 7901 of the California Public Utilities Code. A telephone corporation enjoys a vested
right under Section 7901 to construct "telephone lines" and "necessary fixtures" "along and upon any
public road." California courts have long upheld this vested right to enter and use the public right -of-
way.
In our view, the City possesses only a limited right to curtail the rights of telephone corporations under
Section 7901. Section 7901.1(a) grants to the City only the ability to exercise "reasonable control as to
the time, place and manner in which roads ... are accessed." Section 7901.1(b) provides that any
municipal regulations "at a minimum, be applied to all entities in an equivalent manner," thereby
imposing a duty on the City to regulate in a non - discriminatory manner.
COMMENTS
As mentioned above, some of the provisions of the proposed amendments might constitute a
prohibition of services under the federal Telecommunications Act. A number of the special
requirements outlined in the Proposed Ordinance relating to wireless facilities placed in the public
rights -of -way also appear to go well beyond the regulation permitted under Section 7901 of the Public
Utility Code. Finally, we believe the proposed amendment conflicts with Section 6409(a) of the Middle
Class Tax Relief and Job Creation Act of 2012. We identify some of the problematic provisions in more
detail below.
Section 20.49.030 — Definitions
Base Station — The definition provided by City for "Base Station" is too restrictive and should not exclude
DAS. Alternatively, we request the City's language be modified more broadly to: "A Telecom Facility
installed and operated by the Telecom Operator for signal transmission and reception." The second
sentence regarding antennas and DAS should be excluded from this definition.
Wireless Tower — Only the first sentence should apply. The remaining part of this definition
inappropriately narrows the meaning of a wireless tower.
Section 20.49.040 — Available Technology
We do not believe this section is relevant. It attempts to codify the choice of technology used in sites.
Although it does not explicitly state various technologies, it is inappropriate for the City to dictate what
technology carriers select. For example, under this section, the City could insist that AT &T use DAS or
any other "efficient, diminutive, and least obtrusive available technology" as opposed to a Macro Site.
Section 20.49.050 (B) - Prohibited Locations
We do not believe the City should impose blanket prohibitions on certain locations within the City's
Jurisdiction. What if the only available site is in a prohibited location? Carriers should have the
July 18, 2012
Page 3
opportunity to at least attempt or work with the City to build a site at any location in the City if that is
the only available means.
Section 20.49.060 — General Development and Design Standards (Also in Same Section Subsection (E))
Some of the stealthing standards and guidelines in this section and referenced in other sections may not
be feasible, such as using surrounding vegetation and structures to camouflage a site. To the extent that
such techniques need only be considered but are not required to be implemented, this section may be
workable. However, if the City intends to mandate these guidelines and standards, that is problematic,
as natural vegetation and structures can impair or block RF signals.
Section 20.49.060 (C) - Height
There are maximum height standards which may not work from an RF perspective, although we
recognize that variances can be granted.
Section 20.49.060 (D) - Setback
The setback requirement for a wireless tower is 110% of the height of the tower including the antennas
or enclosures. Newport Beach is a densely populated area and this setback requirement could
effectively prohibit new wireless towers as this requirement may be very difficult to meet in many parts
of the City.
Section 20.49.100 — Modification of Existing Telecom Facilities
This section appears to be an attempt to codify Section 6409(a) of the Middle Class Tax Relief and Job
Creation Act of 2012. Under Section 6409(a) any facility modification that falls under and complies with
Section 6409 must be approved by the City. Section 6409 is not discretionary. We do not believe the City
should set standards and definitions that restrict or define the applicability of the Federal Statute, as it
appears to do in this section. It is appropriate for the City to describe how it will comply, but it should
not attempt to redefine the elements of Section 6409.
We hope the City finds these comments to the proposed amendment helpful. We welcome the
opportunity to work with the City staff to discuss our legal and practical concerns and to develop
solutions amenable to both AT &T and the City.
Sincerely,
?Kyll a C. ell
Cc: Bradley Hillgren, Vice Chair, City of Newport Beach Planning Commission
Members, City of Newport Beach Planning Commission
Janet Johnson Brown, Associate Planner
core
DEVELOPMENT SERVICES
7/18/12
Janet Johnson Brown
Associate Planner
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Dear Ms. Brown,
Item 5: Additional Materials Received
Planning Commission July 19, 2012
Setting the new standard
Care Development Services
2749 Saturn street
Brea, CA 92821
71417298404
mfelten@core.us.com
On behalf of Core Communications, I would like to thank for the opportunity to provide feedback
regarding the City's proposed Wireless Communications Facilities Ordinance. I commend planning staff
and the City for determining that an updated ordinance is needed to allow for a uniform set of
standards that each application will be subject to.
Below are our comments regarding the proposed ordinance amendment. Given our many concerns I
feel it would be best if the city would continue this item to a later date to allow for an outreach meeting
with the industry. I have found that a dialogue with City staff allows for the industry to understand
staff's intent behind each requirement and also allows staff to understand the possible effects certain
requirements may have. By understanding the goals and intent of both sides I feel that City staff will
develop an ordinance that continues to achieve the City's objectives and protects the wellbeing of all
those involved.
The following discussion highlights are an area of a concern:
1. Public Notice /Public Hearing Process and Review Authority, specifically Section 20.49.070(G): It
should not necessary for all proposed projects to go through the hearing process. The City
should utilize a set of objective design standards and if a carrier meets them, there should be no
reason to go before any discretionary body, regardless of location. A streamlined process, such
as an administrative approval, is recommended for sites that are co- located, building or roof -
mounted, or located on utility infrastructures such as SCE towers. The code should explore
incentives for applicants to bring forth quality proposals, such as a simplified review process.
The City of Anaheim's code demonstrates this type of review, which has increased the wireless
telecommunications coverage in the City and while upholding the quality of installations
proposed.
2. Installations in the Public Right -of -Way, specifically Section 20.49.050(C): Requiring a full
conditional use permit for all proposals in the public right -of -way seems overly cumbersome. If
planning review is determined to be absolutely necessary, I recommended a streamlined
administrative process. Public right -of -way sites are typically located on existing structures, such
as light poles, therefore the aesthetic impact is minimal. I recommend only requiring specific
design standards for these specific sites that the carrier will have to adhere to and if those
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DEVELOPMENT SERVICES
design standards are followed the site is approved. If it the site is unable to meet the City's
design standards, then at that time the discretionary planning process maybe required. For
example, the City of Laguna Niguel has design standards that were adopted by the City Council.
If a proposal is unable to conform to those standards then it must go through the planning
process. Another example is the City of Tustin which only requires public right -of -way sites to
go through an administrative design review process. Furthermore, subsection (1) requires all
support equipment be placed below grade. As you may or may not be aware the industry tries
to stay away from vaults at all costs. Facilities flood due to rains and the required flush -mount
vents. When this occurs, sites go "off air ", creating a gap in coverage, not to mention the fact
that it could cost hundreds of thousands of dollars to repair even one facility. When a site goes
"off air" the community will lose needed and required coverage. Additionally, some carriers'
facilities often include an emergency generator which requires ventilations and specific
clearance requirements that would not be able to be enclosed or vaulted. While it is
understood that often Public Right -of -Way installations have very little space for equipment and
vaulting may be the only option, there are occasionally circumstances where the equipment can
be located above ground while being screened. Therefore, by limiting equipment to be
undergrounded only, those occasions are restricted.
3. Design Standards and Criteria, specifically Section 20.49.060: Again, I commend the City for
instituting design requirements; however, as stated above should the city institute a set of
objective design standards and the carrier meets them, there should be no reason to go before
any discretionary body, regardless of location. In this situation the aesthetic impacts are no
longer of a concern given the facility meets code. A streamlined process, such as an
administrative approval, is recommended for sites that meet the required design standards.
Furthermore, the code should explore incentives for applicants to bring forth quality proposals,
such as a streamlined review process.
4. Deviation to Height Limitations and Location Requirements, specifically Section 20.49.060(C)(1).
Subsection (c) should be revisited as several schools, churches, and other public institutions are
often in residentially zoned districts and typically they have flagpoles in front of their
establishments. In the event there are no other options to locate antennas and equipment
within a steeple, some other portion of the building, or a more appropriate stealth design;
prohibiting flagpoles in residential zones may inadvertently cause a prohibition of service. In
those cases where the current proposed code would allow a flagpole installation, 35' is an
extremely restrictive height. As previously stated, wireless telecommunications antennas
require line of site free of obstructions. Given that a great majority of buildings within the City
are multiple stories and some areas of the City have topography challenges, 35' will not likely
provide the necessary line of site. Therefore, it is recommended that no height limit be
specified. The restriction of a 24" diameter pole is also extremely limiting. Often carriers
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DEVELOPMENT SERVICES
require at least 30" or more due to different technology and azimuth requirements. Again, it is
recommended that a larger diameter measurement be provided or the size is left unspecified.
Height may also be an issue in Subsection (d) having adverse implications on roof - mounted
installations. The City is a beach community and often buildings are constructed to the
maximum height limit. Only allowing five feet above base height limit may not be enough to
allow for screening and many carriers' antenna technology. Some carriers have antennas in
lengths of up to eight feet. Additionally, five feet may not be enough to meet EME safety
standards depending on where on the rooftop the antennas are proposed. Therefore, it is
extremely likely that majority of all rooftop installations will be greater than five feet above the
base height limit requiring heightened review. This could potentially cause an architecturally
integrated rooftop installation to proceed through a longer, more cumbersome process because
it cannot meet the narrow five foot height limitation.
5. Setback Requirements, specifically Section 20.49.060(D): Wireless facilities are required to go
through building plan check and demonstrate that they are structurally sound, just as any other
building in the City would be required. However, no other building in the City is required to
provide a "fall zone ", yet the proposed wireless code amendment will require a 110% "fall zone"
setback for any new ground mounted wireless facility. It is unclear why wireless
telecommunications facilities would be held to a different standard. Additionally, as previously
stated, wireless telecommunications antennas must have an unobstructed line of site which will
often require the antennas to be much taller than the 25' example stated in the staff report. In
fact, the average height of concealed ground mounted facilities will likely be around 55', to
allow for a 45' centerline of antennas and additional camouflaging above the antennas.
Therefore, if a 55' ground- mounted facility were proposed the 110% setback would be
60.5'from all properties lines, which would likely inadvertently prohibit any ground- mounted
wireless facilities on the majority of properties within the City.
6. Modification of Existing Telecom Facilities: Given the recent "Tax Relief Act" legislation, I
recommend the City handle all modification requests as ministerial permits. Limiting any
change to 5% or less, as the current ordinance amendment proposes, may potentially prohibit
any maintenance or equipment changes /additions that will increase the efficiency or technology
of the facility .
7. Zoning District Land Uses and Permit Requirements: The City should not prohibit a wireless
installation in any zone. This opens the possibility of the City prohibiting telecommunications
services. Prohibiting an installation outright in any zone may cause the City to unknowingly
create a barrier to entry which inadvertently regulates the business affairs of a wireless
company. This is likely not the intention of the City and therefore I recommend that the City
adopt specific design standards for the residential and open space zones to protect the integrity
of the area. Also, many properties may be zoned residential, but are not used for residential
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DEVELOPMENT SERVICES
purposes, which should be taken into consideration. It should be noted that many cities have
found having wireless facilities in their parks zoned either residential or open space has created
an avenue of revenue for the City.
The entire ordinance is quite lengthy, somewhat burdensome and may provide a barrier for wireless
services to be provided to the Newport Beach community. Given the concerns explained in the text
above, I feel it would be best if the City would continue this item to a later date to allow for an outreach
meeting with the industry. I would like to thank the City for notifying us of this proposed amendment
and look forward to working together in crafting a lawful ordinance that protects the residents and
businesses of the City of Newport Beach along with operation of the wireless industry.
Yours truly,
°°
Michelle Felten
Senior Project Manager
5d: Additional Material Received
Planning Commission July 19, 2012
PA2012 -057
Newport Beach Wireless Ordinance (July 19, 2012 Version)
The following comments are on the version of the Wireless Telecommunications Facilities Ordinance
(PA2012 -057) / Code Amendment No. 2012 -004 presented to the Newport Beach Planning Commission
as Agenda Item 5 at its July 19, 2012 meeting.
The comments were prepared by Jim Mosher ( jimmosher @yahoo.com ), 2210 Private Road, Newport
Beach 92660 (949- 548 -6229) , and are a mix of what may seem major and minor points.
Disclosure
I live in a blufftop home on a "quiet" street overlooking Irvine Avenue, just north of Santiago
Road. I enjoy a view across the Upper Newport Bay Nature Reserve to Saddleback Peak in the
distance. The only unnatural object impairing my view is the top of a City -owned streetlight pole
in the public right -of -way along Irvine Avenue. In March 2007 the City Planning Department
(now Division) approved, without public notice, hearing or right of appeal, an application to
attach a pair of highly visible commercial cell antennas to the top of that pole. In November,
2008, without an clear authority from the City Council, the City Manager signed a long -term
lease for use of the City -owned pole, and in January, 2009 impacted residents were notified of
imminent construction by a contractor (which, to date, has not yet happened). Adding insult to
injury, this has been designated as a preferred site for future collocation.
As it turns out the application was approved based on fraudulent information submitted by the
applicant including maps which by failing to disclose a major wireless facility two blocks to the
north created the appearance of a major "hole" in coverage where none existed. As it also turns
out, under the existing telecom code the planner who approved the application should arguably
have referred the matter to a noticed public hearing before the City Council because of the
proposal's greater- than - normal impact on private views. In addition, the letting of a lease by the
City Manager, although consistent with the Council Policy, was, at least in my view, inconsistent
with the City Charter, which permits only the City Council to bind the City (an action which to
comply with the Brown Act would have to take place at a noticed public meeting). Finally, there
is an ongoing disagreement as to whether the approval was granted in perpetuity (the Planning
Division's interpretation), or if as an unexercised building permit issued subject to the Uniform
Building Code it expired (in the absence of any construction) 180 days after issuance (my
interpretation).
My neighbors and I expect no relief from the proposed Wireless Telecommunications Facilities
Ordinance since it says it does not affect the status of earlier approvals. Nonetheless this
example seems to me a paradigm of at least one situation in which a good telecom code would
preclude the issuance of a permit: cell equipment should not be sited where it impairs the
enjoyment of public or private property unless there is compelling evidence of a serious gap in
coverage that cannot be corrected in any less intrusive manner.
Although I appreciate staffs effort in "updating" the code, to the extent the new code would
permit the preceding facility to be approved I will find it wanting.
July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 2 of 11
General Comments
The effort to update the City's wireless regulations and integrate them into the Zoning Code is
very commendable, particularly to the extent it brings them under the umbrella of uniform
hearing and appeal procedures applicable to other zoning /land use decisions.
That said, it seems unfortunate that the City's Media and Communications Committee no longer
exists, for this is potentially a major revision that would have seemed deserving of more public
outreach and input before reaching so finalized a state. Although I cannot guarantee they would
have participated, I personally know of others who have not been entirely happy with the current
process.
Where do the revised regulations belong?
The choice of numbering the commercial wireless regulations as "Chapter 20.49" appears to
place them in Title 20 (Zoning Code) under Part 4 (Standards for Specific Land Uses). However
that part currently contains only a single chapter (Chapter 20.48: Standards for Specific Land
Uses), and "Wireless Telecommunications Facilities' would seem logically to be a section under
that, much like Section 20.48.190 (Satellite Antennas and Amateur Radio Facilities). The
primary reason for not doing so seems to be that the use of a combination of letters and
numbers to designate the subsections within a section is more awkward than the decimal
scheme of numbering sections within a chapter. Yet a standalone chapter looks out of place
when all the other "Specific Land Uses" are sections within a single chapter.
Alternatively the commercial wireless regulations might belong as a separate chapter in Part 3
(Site Planning and Development Standards), much like Chapter 20.36 (Landscaping Standards)
or Chapter 20.42 (Sign Standards). Since those chapters are arranged alphabetically, "Wireless
Telecommunications Facilities" would be Chapter 20.47.
The proposed transplanting of the section of wireless- specific definitions from Title 15 to Title 20
as Section 20.49.030 (Definitions) is also awkward, for an effort was made to consolidate all the
definitions in the new Zoning Code in a single section: Chapter 20.70 (Definitions). Although an
exception has already been made in Chapter 20.42 (Sign Standards) — which has its own
definition section — consideration should perhaps be given to including a dedicated section of
wireless definitions in the "W" section of Chapter 20.70, rather than as a separate section within
the Wireless code where they are disconnected from the other zoning definitions.
Specific Comments
20.49.010 —Purpose and Intent.
Minor comments:
July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 3 of 11
• Since the regulations of the California Public Utilities Commission also come into play,
the phrase in paragraph "A. Purpose" that says "consistent with federal law' should
perhaps say "consistent with state and federal law."
• The capitalization of words in the proposed ordinance is not entirely consistent with the
style used in the remainder of the current Zoning Code, although the latter itself has
many inconsistencies. "State" and "Federal' should perhaps be capitalized. Words like
"Antenna" and "Collocation" should perhaps not be, since defined terms are not
generally capitalized in most of the rest of the Zoning Code.
Major comment:
Paragraph "A. Purpose' differs from the existing code by a single word, yet despite the
claim in Attachment PC2 that there is "No policy change," this is in fact a major policy
change. The word "public" has been inserted into the phrase "protecting scenic,
ocean and coastal public views." Although staff has consistently claimed its presence
was implied, it was not there, and the idea that its presence was implied is contradicted
by existing Section 15.70.070 (Permit Review Procedures) where:
1. under paragraph B.4 (Visual Simulations) it says "Consideration shall be given
to views from both public areas and private residences." and
2. under paragraph F.3.b (Special Review by Council) a required finding for
approval by the Council is that "The approved facility will not result in
conditions which are materially detrimental to nearby property owners,
residents, and businesses, nor to public health or safety."
• In addition, Section 15.70.090 reserved to the City the modify or revoke the permit if
changed circumstances resulted in "Additional impairment of the views from
surrounding properties."
Likewise, the issuance of a permit for construction in the public right -or -way under
NBMC 13.20.070 (Issuance of a PROW Permit) requires consideration of the
adverse aesthetic effects of any above ground facilities.
• It is clear, then, that an objective of the existing telecom code is the minimization of
impacts on private as well as public views — a commitment that is abandoned, to the
detriment of the community, in the proposed revision.
20.49.020 — General Provisions.
Minor comment: in the old Section 15.70.020 the lettered sections were arranged
alphabetically. It is unclear if the new arrangement has a better logic to it.
• B. Permit and/or Agreement Required.
o This section seems redundant with Sections 20.49.070 and 20.49.090. to which it
refers. For example, Section 20.49.070.A. (Permit Required) restates the
July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 4 of 11
requirements, and stating them in two places seems unwise: at best the
statements are consistent, at worst they contradict each other.
• C. Exempt Facilities.
o Paragraph 2 seems to refer to a subset of the items that are, or should be,
regulated by the code section referred to in paragraph 1.
The reference in paragraph 3 seems to be to Chapter 2.20 of the NMBC, rather
than to Title 2 in general (most of which doesn't have to do with emergencies).
D. Other Regulations.
o Does "Notwithstanding" mean the same as "In addition to "?
o Three numbered clauses in the existing Section 15.70.020.D have been
removed. Two of them are probably subsumed in the new "E. Regulations not in
Conflict or Preempted," but the reasons for no longer requiring compliance with
"3. Easements, covenants, conditions or restrictions on the underlying real
property" are less obvious. The City has a reluctance to enforce covenants as
expressed in Chapter 20.10.C.1, but that reluctance to check compatibility should
not necessarily apply to wireless proposals, where the applicant is rarely the
landowner.
20.49.030 — Definitions.
General comments:
Again, the wireless - related definitions might more logically be placed in the "W" section
of Chapter 20.70 (Definitions). The City of Riverside does this nicely in Section
19.910.240 of their Municipal Code where they have a subsection of "W" devoted to
"Wireless telecommunication facilities" with the header explaining, among other things,
"The following definitions pertain to the regulation of telecommunications uses." They
have also, unlike Newport Beach, inserted their sign- specific definitions in the "S" section
with entries such as "Sign, spandrel."
• Many rather poor definitions have been copied over from the existing wireless code.
Many other ones really could be cleaned up.
Specific comments:
• Antenna.
o This definition is confused and circular, with "antenna" being included as an
example of an antenna.
o It seems, intentionally or not, to include the handheld cell phone at the consumer
end of the transaction.
July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 5 of 11
o "Electromagnetic waves" includes light as well as radio- or microwave - frequency
emissions, so the definition would seem to include, probably inadvertently, such
things as a laser surveying system, or even an ordinary light.
Some examples from other cities:
o "Antenna, Antenna Array, Wireless Antenna Array, or Wireless
Telecommunications Antenna Array." One or more rods, poles, panels, discs, or
similar devices used for the transmission or reception of radio frequency signals,
that may include omni - directional antennas (whip), directional antennas (panel),
and parabolic antennas (disc), but excluding any support structure as defined
below.
"Antennas" - Any system of wires, poles, rods, reflecting discs, dishes, flat
panels, or similar devices, including "whip antennas ", attached to a
telecommunications tower, mast or other structure, which in combination with the
radio - frequency radiation generating equipment associated with a base station
are used for the transmission or reception of electromagnetic waves.
o 1." Antenna" means a device or system of wires, poles, rods, dishes or other
devices of similar function, used for the transmission and /or reception of radio
frequency signals for wireless communications, as described in the
Telecommunications Act of 1996. It may include an omni- directional antenna
( "whip'), a directional antenna ( "panel') and parabolic antenna ( "disc'). It does
not include the support structure. 2. "Antenna Array" means a set of one or more
antennae.
• Antenna Array.
o This is a particularly inscrutable definition constructed out of inscrutable phrases,
especially since our definition of "antenna" includes "arrays." The very concise
definition of "Antenna Array" in "2" above seems better.
• Antenna Classes
o As it stands this seems a purely circular definition.
o A reference to proposed Section 20.49.050.A (where the "classes' are actually
defined) would seem helpful.
Distributed Antenna System, DAS.
o I thought a DAS was a system of small, low- power, closely spaced antenna
stations. Does the reference to "third- party" mean it does not qualify as a DAS if
it is built and operated solely for the benefit of the installer?
• Feasible.
July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 6 of 11
o Should the definition include economic factors?
• Stealth or Stealth Facility.
o False trees have been deleted, probably intentionally.
• Utility Tower.
o It is unclear why a steel pole is regarded as a "tower." Why would the material
matter?
• Wireless Tower.
o The intent of the reference to DAS is unclear. In the example, does it matter if
the antenna added is DAS or some other kind?
20.49.040 — Available Technology.
• It was unclear under the old code, and remains unclear why this clause is not included in
Section 20.49.020 (General Provisions).
20.49.050 — Location Preferences
• A. Preferred Locations
o Class 2 (Collocation)
• It is unclear why the spelling "co- located' is used in preference to
"collocated."
• My reading of this definition is that a completely unscreened facility is
Class 2 provided the facility to which new features are added was
originally unscreened. It is unclear why this would be a preferred over
more numerous but less visible installations.
• Reading further through the code I'm not sure "collocation" should be a
,.class' at all. In other parts it sounds like it is a construction technique
that could be applied to any one of the other classes.
o Class 3 (Visible)
• "a cylindrical Antenna unit that replicates the diameter and color of the
pole or standards" sounds like it might be Class 1, certainly if it was
incorporated into the normal length of the pole.
o Class 4 (Freestanding Structure)
• This class seems to encompass a wide range of structures, some of
which are much more obtrusive than others.
July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 7 of 11
o Class 5 (Temporary)
• The meaning of "such placement of a temporary Telecom Facility shall
not exceed 1 year, consistent with Section 20.52.040" is less than clear
since Telecom Facilities are not mentioned in Section 20.52.040. Does
this mean that even though not mentioned there, the procedures of
Section 20.52.040 with a time limit of less than 1 year?
• C. Installations in the Public Right -of -Way.
o "Any pedestal meter required for the purpose of providing electrical service
power."
• Has this exception been made obsolete by Southern California Edison's
conversion to "SmartMeters" which do not need to be physically read by a
technician?
o "Any proposed installation in the public right -of -way shall comply with all
requirements of the Americans with Disability Act (ADA), and all other laws,
rules, and regulations."
• Isn't this redundant with the catch -all clauses in Section 20.49.020
(General Provisions, paragraphs D and E)?
• D. Collocation Installations
o In my view this section should be discretionary rather than mandatory. That is, it
should say "may be required to collocate" rather than "shall be required to
collocate." There is no one - size -fits all solution. Ideally the desirability of
collocation versus separate installations should be worked out during the public
hearing, but the decision has to be made early in the approval process.
o Condition Requiring Future Collocation
• If the preceding section is mandatory, this seems redundant with it — that
is all approvals would implicitly include this condition.
20.49.060 — General Development and Design Standards.
• A. General Criteria.
o "For an example, where a streetlight standard is replaced with a different
streetlight standard to allow for the additional installation of Antennas, the
primary use shall remain as a streetlight."
• It is unclear if this is meant as a definition or a design directive.
July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 8 of 11
• The definition of "Wireless Tower" in Section 20.49.030 implies no
size or amount of antennae can ever cause a streetlight to
become a wireless tower?
• Does this mean there is some threshold at which that would
happen, and it is to be avoided?
• If so, should it be elaborated in one of the listed standards? Or is
it already implied in 'Blending "?
Apparently this is meant to be read similarly to the explanation of
Screening Standards in paragraph 20.49.060.F.3.c ( "compatible in scale
and proportion to streetlights and traffic control standards and the poles
on which they are mounted") but the tie -in is not immediately obvious to
me.
• B. Public View Protection.
As previously indicated this is a major step back from the present code which
protects both private and public views, and not just from the few (and somewhat
arbitrarily located) starred spots on the General Plan map.
Although the Zoning Code generally shuns private view protection it is not
unprecedented. For example commercial loading docks and roof - mounted
equipment are supposed to be screened from view from adjacent residences.
And more importantly, the telecom applicant is not normally a landowner
restricted to construction on a particular parcel of property
• C. Height
The reminders about other codes (such as Section 20.30.060.E and 4 U.S.C. §
1) are helpful, but probably redundant with the catch -all applicability of all other
codes in Section 20.49.020 (General Provisions).
o Maximum Height.
• Since the definition of Telecom Facilities in Section 20.49.030 includes
the whole shebang (including the antennas, the support structure to which
they are attached and even the land on which it sits) the reference to
"Telecom Facilities" at the start of each lettered paragraph is at best
confusing. I think what is being regulated is the height at which antennas
(rather than Telecom Facilities) can be installed.
• Lettered paragraph "b" may need some words to clarify how it relates to
paragraph "a" — which it is possibly meant to supersede?
July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 9 of 11
The references to 24 and 20 inches in lettered paragraph "c" are less than
clear. They seem to be an attempt to describe the flagpole rather than
the "facility," and I'm not sure how "at the top' is to be interpreted. My
recollection is cellphone "flagpoles" frequently have an enlarged
cylindrical section near the top (housing the antennas) with a small
decorative element above that.
o Over - Height Buildings or Structures
• Stealth Telecom Facilities can evidently be of Class 1, 2 or 4? Exactly
how that and "the type of installation" are to affect the review seems
vague.
o D. Setbacks
• The reference to "installed on public property or private property' seems
unnecessary. What other kinds of property are there?
o E. Design Techniques.
This subsection may have absorbed the protections of private views in
the existing code, but whether it is intended to include consideration of
private views or not is unclear.
o F. Screening Standards.
• Class 3:
"No cables and mounting brackets or any other associated
equipment or wires shall be visible from above, below or the side
of the Antennas."
o This sounds good, but may be unrealistic. I don't recall
ever seeing an installation with visible antenna panels in
which the mounting brackets and cables were not at least
partially visible.
• "Antenna installations on existing or replacement streetlight poles,
traffic control standards, or Utility Poles shall be screened by
means of canisters, radomes, shrouds other screening measures
whenever Feasible.."
o Large canisters and "radomes" added on top of streetlights
and other poles are not necessarily less obtrusive or
obnoxious than "exposed" antennas mounted flush to the
pole. It is not at all obvious why they would be preferred.
July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 10 of 11
20.49.070 — Permit Review Procedures.
• A. Permit Required.
o "Table 4 -1 Permit Requirements for Telecom Facilities"
• The index to the existing Zoning Code indicates Title 20 already contains
a "Table 4 -1 Animal- Keeping Standards" and a "Table 4 -2 Required
Setbacks for Structures Housing Domestic Farm Animals." It would
appear that if the proposed code is placed in Part 4 this table will need to
be renumbered.
• Note "a" where it says "depending on the type of installation and Antenna
Class being proposed for the Collocation" is confusing. I thought a
collocated installation was by definition Class 2.
• B. Application Submission Requirements for Telecom Facilities on City-owned or
City -held Trust Properties.
o It should be clearly stated that authorization by the written authorization from the
City Manager does not guarantee that a lease for use of the property will
ultimately be granted by the City Council.
• H. Required Findings for Telecom Facilities
o 1. General.
• The term "review authority' is used frequently in the proposed code. This
seems to be where it is defined. However it is defined by reference to
Table 4 -1, and that table is less than clear as to who or what the review
authority is in most cases.
• The proposed findings are substantially different from the ones the City
Council would currently have to make under Section 15.70.070.F.3.
• The basic requirement that the facility is needed to provide service seems
to be missing. Such a requirement is permitted by case law and needed
to prevent an unnecessary proliferation of facilities.
• The proposed findings seem to preclude placement in parks or on public
facilities, since such an application would have to be denied if any other
alternative is feasible. Since the City might want the revenue in
preference to installation on a nearby private building, the logic behind
this is unclear.
20.49.090 — Agreement for Use of City -Owned or City -Held Trust Property
Although outside the scope of the proposed code, I believe, as previously stated, that there is a
problem with the procedure of approving the leases formulated by the City Manager and City
July 19, 2012 Wireless Ordinance comments by Jim Mosher Page 11 of 11
Attorney for commercial use of public property as current described in Council Policy L -23 (The
Siting of Wireless Telecommunications Equipment on City- Owned Land). The agreement is
"approved" by lack of action on the part of the City Council, which I believe is inconsistent with
both the City Charter and the Brown Act. In addition Policy L -23 will require revision because it
currently refers to Chapter 15.70 (which is proposed to be repealed) and to provisions in Title 13
that were never implemented.
20.49.100 — Modification of Existing Telecom Facilities.
The reference under the definition of "Substantially change" to February 22, 2012 seems
oddly stated, and might seem to have the effect of making the following criteria
inapplicable to a facility that did not exist on that date?
20.49.120 — Right to Review or Revoke Permit.
o The transplanting of this section from Section 15.70.090 does not seem to have been
entirely successful since it no longer explains all the circumstances under which the City
reserves the right to review or revoke the permit.
20.49.130 — Removal of Telecom Facilities.
o B. Abandonment.
o I have no problem with reducing the period from 180 days to 90 days, but the
reason for doing this is not explained in the staff report.
Omissions
In addition to lack of clarity regarding the minimization of impacts on private properties, the
proposed code omits important Submission Requirements currently found in Section 15.70.070.
These included the justification for the project, maps (including ones illustrating current
and proposed coverage), visual simulations (including ones showing impacts on nearby
residences), emission data, wind load calculations and evidence of permission to use
property. I don't know if some of this may be required for use permits in general, but much of it
seems wireless- specific and it is very difficult to see how the reviewing authorities could make
an intelligent decision about the application without this information.
Finally, I think the proposed code would benefit from comparison with how wireless applications
are handled by other California cities. I suspect that beyond the clearer definitions cited above,
there are many concepts and specific provisions that could be usefully incorporated.
Item 5c: Additional Material Received calwa
PIA2012- 57mmission July 19, 2012
PCIA
July 19, 2012
VIA ELECTRONIC MAIL
Newport Beach Planning Commission
c/o Janet Johnson Brown, Associate Planner
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
jbrown @newportbeachca.gov
Re: Proposed Amendments to Wireless Telecommunications Facilities Ordinance
Dear Ms. Brown,
PCIA —The Wireless Infrastructure Association ( "PCW )l and the California Wireless
Association ( "CalWA ")Z writes to provide comment on the City of Newport Beach's proposed
amendment to the Newport Beach Municipal Code to update regulations regarding wireless
telecommunications facilities in light of the scheduled public hearing on the matter before the
Planning Commission on Thursday, July 19, 2012. Attached please find the proposed
amendments marked with comments. PCIA and CalWA respectfully request that Planning
Commission defer action on this item until the industry has had an opportunity to sit down with
staff and discuss the concerns reflected within this letter and in the attached mark -up.
PCIA and CalWA applaud the City of Newport Beach for recognizing that there have
been numerous changes in Federal and State law regarding local regulation of wireless facilities,
as well as a tremendous increase in the demand for wireless services that required the industry to
change how it responds and keeps up with demand from its subscribers, especially in
sophisticated communities like Newport Beach. We encourage the City to craft an ordinance that
enables logical and intelligent deployment with an objective set of standards that comply with
state and federal law and allows the timely provision of quality wireless service. To this end, in
order to ensure that Newport Beach's efforts to modernize its wireless ordinance are as
comprehensive as possible, PCIA and CalWA offer the attached mark -up of the draft
amendments.
'PCIA is the national trade association representing the wireless infrastructure industry. PCIA's members develop,
own, manage, and operate towers, rooftop wireless sites, and other facilities for the provision of all types of wireless,
broadcasting and telecommunications services. With a mandate to facilitate the deployment of wireless
infrastructure, PCIA and its members partner with communities across the nation to effect solutions for wireless
infrastructure deployment that are responsive to the unique sensitivities and concerns of these communities.
ZCaIWA is a non -profit organization made up of volunteers who work in the wireless /telecommunications industry
throughout California. Its goal is to raise awareness about the benefits of and to promote the wireless industry, to
educate the public and political leaders on issues of importance to the wireless industry, and to cultivate working
relationships within and between the industry, the public and political leaders.
PCIA
i
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Despite the importance of wireless services and its potential forjob creation, local review
of the placement of wireless facilities remains a persistent barrier to the deployment of wireless
infrastructure. For example, the proposed amendments to Newport Beach's Municipal Code
could better facilitate the deployment of wireless infrastructure in order to bring wireless service
to Newport Beach's residents. PCIA and CalWA hope to work together with the Planning
Commission to find a solution for wireless infrastructure deployment that is responsive to the
City of Newport Beach's needs and concerns. For this reason, PCIA and CalWA urge that
Planning Commission defer action on this item to allow time to consider and discuss the
industry's concerns.
The Need for Wireless Infrastructure
Wireless services, from basic voice communication to mobile broadband, enable
communication, productivity, mobility, and public safety. Wireless infrastructure is the backbone
of wireless networks; without it, wireless services cannot be delivered to users. Wireless
infrastructure enables use of spectrum by providing the vital link between the end -user and the
network. The strategic deployment of wireless infrastructure improves the efficient use of limited
spectrum resources, which in turn improves the performance of wireless services.
Wireless providers are currently undertaking a multi- faceted effort to deliver next-
generation wireless services, such as 4G LTE, in addition to ensuring that current and next -
generation networks have the capacity to handle the surge in traffic that comes with the increased
adoption rates of smartphones, tablets and other data devices. Wireless networks must adapt to
growing capacity demands due to an 1,800 percent increase in traffic on U.S. wireless networks
in the last four years and a projected growth of eighteen times current levels of mobile data
traffic in the next five years.4 Mobile Internet users are projected to outnumber wireline Internet
users by 2015, when a majority of Americans will utilize a wireless device as their primary
internet access tool.5 This will result in two billion networked mobile devices by 2015.6
The need for rapid deployment extends beyond mere consumer convenience. More than
70 percent of all emergency calls are placed using a wireless device.7 The ability to access fire,
rescue and police services may be significantly hindered without wireless infrastructure,
especially for those relying on wireless as their sole form of voice communications. As noted by
the Federal Communications Commission ( "FCC "),
[T]he deployment of facilities without unreasonable delay is vital to promote public
safety, including the availability of wireless 911, throughout the nation. The importance
of wireless communications for public safety is critical, especially as consumers
'Mobile Future, 2011 Mobile Year In Review (Dec. 2011), available at http: / /mobilefuture.org /page /- /images /2011-
MYIR.pdf.
n Quentin Hardy, The Explosion of Mobile Video, N.Y. Times, Feb. l4, 2012, available at
http: //bits.blogs.nytimes.com /2012/02/14 /the- explosion -of- mobile- video /.
s Hayley Tsukayama, IDC: Mobile Internet Users to Outnumber Wireline Users by 2015, Washington Post, Sept. 12,
2011, available at http : / /www.washingtonpost.com/blogs /post - tech/post/idc- mobile- internet- users -to- outnumber-
wireline- users -by- 2015 /2011 /09 /12 /gIQAkZP7MK blog.html ?wprss =post -tech.
'Mobile Future, 2011 Mobile Year In Review.
' FCC.gov, Guide: Wireless 911 Services, available at http: / /www.fcc.gov /guides /wireless -911- services.
PCIA
calwa
increasingly rely upon their personal wireless service devices as their primary method of
communication!
As NENA observes:
Calls must be able to be made from as many locations as possible and dropped calls must
be prevented. This is especially true for wireless 9 -1 -1 calls which must get through to
the right Public Safety Answering Point ( "PSAP ") and must be as accurate as technically
possible to ensure an effective response. Increased availability and reliability of
commercial and public safety wireless service, along with improved 9 -1 -1 location
accuracy, all depend on the presence of sufficient wireless towers.9
For this reason, decisions on siting requests made by the personal wireless service industry were
not intended by Congress to be subjected "to any but the generally applicable time frames for
zoning decision[s]. "10 Thus, the adoption of special procedural schemes unique to wireless siting
requests should be avoided.
The FCC Shotclock Declaratory Ruling and the California Permit Streamlining Act
In addition to the provisions of Section 337(c)(7) of the Communications Act of 1934
referred to in the staff report, subsection (13)(ii) of that section contains another requirement that
the City should keep in mind when crafting its new ordinance. That provision requires that a
"local government or instrumentality thereof shall act on any request for authorization to place,
construct, or modify personal wireless service facilities within a reasonable period of time after
the request is duly filed with such government or instrumentality, taking into account the nature
and scope of such request."
The FCC recently adopted a Declaratory Ruling on November 18, 2009 under this
subsection holding that "a `reasonable period of time' is, presumptively, 90 days to process
personal wireless service facility siting applications requesting collocations, and, also
presumptively, 150 days to process all other applications. "11 Given the rate at which demand for
advanced wireless services has been growing, and in particular the growth in the demand for
bandwidth as a result of adoption of smart phones and wireless - enabled laptops and tablets, the
need for speedy local approvals of proposed wireless deployments has become truly critical to
providing the wireless services consumers demand.
Indeed, the FCC's presumptive timeframe for action may be superfluous given that
California law has, for decades, contained absolute deadlines by which action must be taken. As
you are no doubt aware, the California Permit Streamlining Act imposes a 60 -day time limit for
approving or denying a requested permit after a project has been determined to be categorically
s Petition far Declaratory Ruling To Clarify Provisions of Section 332(C)(7)(B) To Ensure Timely Siting Review and
To Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as
Requiring a Variance, Declaratory Ruling, 24 FCC Rcd 13994, 14021171 (2009) ( "Shot Clock Ruling "), recon.
denied, 25 FCC Rcd 11157 (2010), aff'd, City of Arlington, Tex., eta /. v. FCC, 2012 U.S. App. LEXIS 1252 (5th
Cir. 2012).
e Shot Clock Ruling, at 36.
° H.R. Conf. Rep. No. 104 -458, 104th Congress, 2nd Sess. 208 (1996).
Shotclock Ruling.
PCIA
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exempt from CEQA12 or a negative declaration or mitigated negative declaration has been
adopted. 13
The Wireless Provisions in Middle Class Tax Relief and Job Creation Act of 2012
Staff failed to mention the Middle Class Tax Relief and Job Creation Act of 2012,
enacted with bipartisan support and signed into law by President Obama on February 22, 2012.
One of the measures included in the Act was the creation of a nationwide interoperable
broadband network for first responders. In addition to authorizing the FCC to allocate necessary
spectrum for this new interoperable network, the Act also contained provisions designed to
establish voluntary incentive auctions of wireless spectrum, which are expected to raise $15
billion over the next eleven years. Seven billion dollars of the auction proceeds have been
allocated for public safety broadband network build out.
The Act reflects an implicit acknowledgement that realizing the financial viability of the
spectrum auctioned depends on the ease with which purchasers can deploy the infrastructure
needed to utilize it. At the same time, it allays local concerns over the potential impact of the
construction of new sites. In a carefully crafted attempt to address both industry and local
concerns, Section 6409 of the Act streamlines, and thereby incentivizes the use of, modification
of existing sites in lieu of new builds. Although the staff proposals reflect a similar recognition
of the need for streamlined review of modifications, PCIA and CaIWA provide herewith a
detailed explanation of this recent law due to concerns that the definitions provided in the report
fail to reflect those adopted and utilized by the FCC.
Section 6409 of the Act requires state and local governments to approve an eligible
facilities request for the modification of an existing wireless tower or base station that does not
substantially change the physical dimensions of such tower or base station. Section 6409 applies
to "eligible facilities requests" for modification of existing wireless towers and base stations. The
Act defines "eligible facilities request" as any request for modification of an existing wireless
tower or base station that involves:
• Collocation of new transmission equipment;
• Removal of transmission equipment; or
• Replacement of transmission equipment.
Many of the terms employed in the section are concepts that were hammered out in negotiations
between local government and industry representatives in an agreement that was adopted by
reference in regulations promulgated by the FCC. Thus, for example, 'collocation" has been
defined as "the mounting or installation of an antenna on an existing tower, building or structure
for the purpose of transmitting and/or receiving radio frequency signals for communications
purposes. 04
12 Gov. Code § 65950(a)(4).
"Gov. Code § 65950(a)(3).
14 Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (2001), available at 47
C.F.R. Part 1, Appendix B ( "Collocation Agreement "). See also Petition for Declaratory Ruling To Clarify
Provisions of Section 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State
and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24
El
PCIA
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The same agreement also addressed the issue of what constitutes a substantial change in the
size of a tower:
The mounting of the proposed antenna on the tower would increase the existing height of the
tower by more than 10 %, or by the height of one additional antenna array with separation
from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that
the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if
necessary to avoid interference with existing antennas; or
The mounting of the proposed antenna would involve the installation of more than the
standard number of new equipment cabinets for the technology involved, not to exceed four,
or more than one new equipment shelter; or
The mounting of the proposed antenna would involve adding an appurtenance to the body of
the tower that would protrude from the edge of the tower more than twenty feet, or more than
the width of the tower structure at the level of the appurtenance, whichever is greater, except
that the mounting of the proposed antenna may exceed the size limits set forth in this
paragraph if necessary to shelter the antenna from inclement weather or to connect the
antenna to the tower via cable; or
The mounting of the proposed antenna would involve excavation outside the current tower
site, defined as the current boundaries of the leased or owned property surrounding the tower
and any access or utility easements currently related to the site. 15
In this agreement, a "tower" is defined as "any structure built for the sole or primary purpose of
supporting FCC - licensed antennas and their associated facilities. 16 While the concept of a "base
station" is not referenced in the agreement, the term has a long - established meaning consistently
used throughout both FCC regulations and case law, namely a fixed location from which
wireless signals are transmitted. For example, FCC regulations define a "base station" as "[a]
station at a specified site authorized to communicate with mobile stations;" or "A land station in
the land mobile service." 17 We urge the Planning Commission to use these well recognized
definitions within its Ordinance.
FCC Red 13994, 14021 1171 (2009) ( "Shot Clock Ruling'), recon. denied, 25 FCC Red 11157 (2010), affd, City
of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEXIS 1252 (5th Cir. 2012).
"Collocation Agreement, note, above.
16 Id.
17 See, e.g., 47 C.F.R. § §24.5, 90.7.
PCIA
Conclusion
calwa
Reliable wireless communications are no longer a luxury. Wireless facilities provide a
platform for broadband accessibility, creating a link from the City of Newport Beach to the
world through high -speed Internet access. The City of Newport Beach has an opportunity to
facilitate expanded wireless coverage to its citizens, businesses, and first responders by moving
forward with amending its code in consideration of the wireless infrastructure industries'
suggestions provided herewith.
PCIA and Ca1WA hope to participate in the ordinance revision process as it develops, if
Planning Commission defers action on this item to consider the industry's concerns. We
appreciate your support to further our mutual goal of implementing and deploying responsible
and timely wireless infrastructure to serve the City of Newport Beach, CA.
Sincerely,
/s/
Julian Quattlebaum
Co- Chair, Regulatory Committee
California Wireless Association (CalWA)
800 S. Pacific Coast Hwy # 448
Redondo Beach, CA 90277
310- 356 -6950
jq@channellawgroup.com
/s/
Sean Scully
Co- Chair, Regulatory Committee
California Wireless Association (Ca1WA)
800 S. Pacific Coast Hwy # 448
Redondo Beach, CA 90277
818 - 426 -6028
permittech @verizon.net
Kara Leibin Azocar
Government Affairs Counsel
PCIA —The Wireless Infrastructure Association
901 N. Washington St., Suite 600
Alexandria, VA 22314
703 -535 -7451
Kara.Azocar @pcia.com
EXHIBIT "A"
20.49.010 — Purpose and Intent.
A. Purpose. The purpose of this Chapter is to provide for wireless telecommunication facilities
( "Telecom Facilities ") on public and private property consistent with federal law while
ensuring public safety, reducing the visual effects of telecom equipment on public
streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating
the impacts of such facilities. More specifically, the regulations contained herein are
intended to:
1. Encourage the location of Antennas in non - residential areas.
2. Strongly encourage Collocation at new and existing Antenna sites.
3. Encourage Telecom Facilities to be located in areas where adverse impacts on the
community and public views are minimized.
B. 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 — General Provisions.
A. Applicability. These regulations are applicable to all Telecom Facilities providing voice
and /or data transmission such as, but not limited to, cell phone, internet and radio relay
stations.
B. Permit and /or Agreement Required.
1. Prior to construction of any Telecom Facility in the City, the applicant shall obtain a
Minor Use Permit (MUP), Conditional Use Permit (CUP), or Limited Term Permit (LTP),
depending on the proposed location and Antenna Classes, in accordance with Section
20.49.070 (Permit Review Procedures).
CalWA Comment No. 2: This section needs to incorporate a reference to 20.49.100 where there Page 11
could be ministerial permits issued for modifications. Also CaIWA recommends a ministerial
permit be an option for Class 1 and Class 2 facilities under the circumstance when the facilities
are located in non - residential zones and are otherwise not visible.
CalWA Comment No. 1: Some
Chapter 20.49 — Wireless Telecommunications Facilities
recognition that this land use is in
fact a "utility" (as defined in the
Sections:
States Constitution) and additional
20.49.010 — Purpose and Intent
tolerance and balance similarly to
20.49.020 — General Provisions
how other utilities are viewed
aesthetically should be afforded this
20.49.030 — Definitions
critical land use as well. This
20.49.040 — Available Technology
"purpose" raises aesthetics above all
20.49.050 — Location Preferences
other considerations unfairly as
20.49.060 — General Development and Design Standards
compared to other utility land uses.
20.49.070 — Permit Review Procedures
20.49.080 — Permit Implementation, Time Limits, Duration, and Appeals
20.49.090 — Agreement for Use of City -owned or City -held Trust Property
20.49.100 — Modification of Existing Telecom Facilities
20.49.110 — Operational and Radio Frequency Compliance and Emissio s Report
20.49.120 — Right to Review or Revoke Permit
20.49.130 — Removal of Telecom Facilities
20.49.010 — Purpose and Intent.
A. Purpose. The purpose of this Chapter is to provide for wireless telecommunication facilities
( "Telecom Facilities ") on public and private property consistent with federal law while
ensuring public safety, reducing the visual effects of telecom equipment on public
streetscapes, protecting scenic, ocean and coastal public views, and otherwise mitigating
the impacts of such facilities. More specifically, the regulations contained herein are
intended to:
1. Encourage the location of Antennas in non - residential areas.
2. Strongly encourage Collocation at new and existing Antenna sites.
3. Encourage Telecom Facilities to be located in areas where adverse impacts on the
community and public views are minimized.
B. 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 — General Provisions.
A. Applicability. These regulations are applicable to all Telecom Facilities providing voice
and /or data transmission such as, but not limited to, cell phone, internet and radio relay
stations.
B. Permit and /or Agreement Required.
1. Prior to construction of any Telecom Facility in the City, the applicant shall obtain a
Minor Use Permit (MUP), Conditional Use Permit (CUP), or Limited Term Permit (LTP),
depending on the proposed location and Antenna Classes, in accordance with Section
20.49.070 (Permit Review Procedures).
CalWA Comment No. 2: This section needs to incorporate a reference to 20.49.100 where there Page 11
could be ministerial permits issued for modifications. Also CaIWA recommends a ministerial
permit be an option for Class 1 and Class 2 facilities under the circumstance when the facilities
are located in non - residential zones and are otherwise not visible.
2. Applicants who obtain a MUP, CUP or LTP (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
20.49.090 (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.
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.
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 is lawfully constructed, erected,
or approved prior to the effective date of this Chapter, or for which the application for a
proposed Telecom Facility is deemed complete prior to the effective date of this Chapter, 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 otherwise
approved and constructed. Legal nonconforming Telecom Facilities shall comply at all times
with the laws, ordinances, and regulations in effect at the time the application was deemed
complete, and any applicable federal and state laws as they may be amended or enacted,
and shall at all times comply with any conditions of approval.
CaIWA Comment No. 3: Are legal nonconforming amortizations applicable under Page 12
any circumstances to WTF's that are classified as "Legal Nonconforming Facilities "?
CaIWA Comment No. 4: The definition of "Base
Station" should include the entire structure and
antenna facilities as defined by the FCC.
20.49.030 — Definitions.
For the purposes of this Chapter, the following definitions shall apply
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.
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, all of
which elements are deemed to be part of the Antenna.
Antenna Classes. Antenna Classes are Telecom Facilities and the attendant Support
Equipment separated into distinct "antenna classes."
Base Station. Base Station means the electronic equipment at a Telecom Facility installed and
operated by the Telecom Operator that together perform the initial signal transmission and
signal control functions. Base Station does not include the Antennas and Antenna support
structure, or the Support Equipment, nor does it include any portion of DAS.
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 is not limited to City Hall, Police and Fire
facilities, recreational facilities, parks, libraries, monuments, signs, streetlights and traffic control
standards.
Collocation. Collocation means an arrangement whereby multiple Telecom Facilities are
installed on the same building or structure.
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.
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.
Feasible. Feasible means capable of being accomplished in a successful manner within a
reasonable period of time, taking into account environmental, physical, legal and technological
factors.
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.
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.
Page 13
CaIWA Comment No. 5: This component of the definition is
not clear as "Base Station" and "Suport Equipment" would
seem to be inclusive of each other. Please clarify.
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.
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.
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.
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
cabling, air conditioning units, equipment cabinets, pedestals, and electric service meters.
Support Equipment does not include the Base Station, DAS, Antennas or the building or
structure to which the Antennas are attached.
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.
Utility Pole. Utility Pole means a single freestanding pole used to support services provided by
a public or private utility provider.
Utility Tower. Utility Tower shall mean an open framework structure (see lattice tower) or steel
pole used to support electric transmission facilities.
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 light standard which is replaced with a new light
standard to permit the addition of Antennas shall not be considered a Wireless Tower, but rather
a replacement light standard.
`EM
CaIWA Comment No. 6: Overemphasis of "aesthetics ". More
tolerance and balance should be afforded this land use in
recognition of the critical infrastructure and "utility" that it is.
20.49.040 — Available Technology.
All Telecom Facilities approved under this Chapter shall utilize the most efficient, diminutive,
and least obtrusive available technology in order to minimize the number of Telecom Facilities in
the City and reduce their visual impact on the community and public views.
20.49.050 — Location Preferences.
A. Preferred Locations. The following is the order of preference for the location and
installation of Telecom Facilities, from highest priority location and technique to lowest.
Antenna Classes are the Telecom Facilities and their attendant accessory/Support
Equipment separated into the following distinct Antenna Classes based on observed
aesthetic impacts, as follows:
Class 1 (Camouflaged /Screened): A Telecom Facility with Antennas mounted on an existing
or proposed non - residential building or other structure not primarily intended to be an
antenna support structure. The Antennas, Base Station, and Support Equipment are fully
screened so that they are not visible to the general public. Typical examples include:
•
Wall or roof mounted Antennas that are screened behind radio - frequency transparent,
visually- opaque screen walls that match or complement existing exterior surfaces of the
building or structure to which they are attached.
CaIWA Comment •
Antennas designed to be incorporated within an architectural feature of a building or
No. 7: This
structure such as a steeple, cross, cupola, sign, monument, clock tower or other
additional
architectural element.
requirement is •
not warranted
Base Station equipment that is contained within an existing structure, or placed into a
nor relavent to a
new attached structure that matches or complements the existing exterior surfaces of
Collocation.
the building or structure
Please remove.
Class 2 (Collocation): A Telecom Facility with Antennas and /or Base Stations co- located on
an approved existing Telecom Facility and mounted in the same manner with materially the
same or improved screening, or the same camouflage design techniques as the approved or
existing Telecom Facility. Class 2 Collocation Telecom Facilities also may incorporate flush -
to -grade underground Base Station 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.
Class 3 (Visible): A Telecom Facility with Antennas mounted on an existing non - residential
building, structure, pole, light standard, Utility Tower, and /or Lattice Tower. The structure is
treated with some camouflage design techniques, but the Antenna panels and some
portions of the pole, light standards, Utility Tower, or Lattice Tower are still visible. Typical
examples include:
• Antennas mounted on the exterior of an existing building so that the panels are visible,
but painted to match the color and texture of the building or structure.
• Antennas flush- mounted atop an existing pole or light standard that are unscreened or
un- camouflaged, or attached to an existing pole or light standard utilizing a cylindrical
Antenna unit that replicates the diameter and color of the pole or standards.
• Antenna panels installed on existing electrical or other Utility Towers, or existing Lattice
Towers.
CaIWA Comment No. 8: WTF mounted on
existing utility infrastructure should be encourage
and promoted via Class 1 designation.
Page 15
CalWA Comment No. 9: This type of facility should
be Class 1. Please reclassify as a facility that is
within a rock or shrub type facility is very low profile
and minimimally visible, if at all.
CalWA
Comme\No..
10: These
types of
facilities should
be included
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. The
Telecom Facility is designed to replicate a natural feature or is a Monopole or Lattice Tower.
The Antennas are either unscreened and visible, or camouflaged /designed to blend in with
their surroundings. Typical examples include:
with Class 3
type facilities
as they are
.'stealthed/
camoflauged
and should be
incentivised.
Antennas mounted inside or behind elements that replicate natural features such as
rocks and shrubbery and located in hillsides or other natural areas where the Telecom
Facility blends into the surrounding vegetation or topography (e.g. false rocks or
shrubbery).
A Telecom Facility consisting of Antennas mounted on or inside a freestanding structure
that uses camouflage to disguise the Antennas (e.g. monotree, flagpole, or other
freestanding structure).
A Telecom Facility consisting of Antennas on the exterior of a freestanding structure that
is unscreened /un- camouflaged (e.g. Monopoles or Lattice Tower).
Class 5 (Temporary): A Wireless Tower, Antennas and /or Base Station, and associated
Support Equipment system that is a temporary Telecom Facility on a site until a permanent
(separately approved) Telecom Facility to provide coverage for the same general area is
operational but such placement of a temporary Telecom Facility shall not exceed 1 year,
consistent with Section 20.52.040. A Wireless Tower, Antennas and /or Base Station, and
associated Support Equipment system that is a temporary Telecom Facility located on a site
in connection with a special event, as that term may be defined in Municipal Code Section
11.03.020 (General Provisions), may be allowed only upon approval of a Special Events
Permit, as regulated by Chapter 11.03. Class 5 installations include but are not limited to
equipment mounted on trailers, trucks, skids, or similar portable platforms.
B. Prohibited Locations. Telecom Facilities are prohibited in the following locations:
CaIWA
Comment No.
11: Facilities
should be
permitted in 2.
these zones if
not utilized as 3.
a residential
use.
C.
CalWA
Comment No.
12: Open
space should
be a permitted
zone for this
critical utility
infrastructure.
On properties zoned for single -unit or two -unit residential development, including
equivalent PC District designation.
On properties zoned for multi -unit residential development and mixed -use development
consisting of four (4) dwelling units or less.
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 Telecom
Facility.
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, and notwithstanding any
provisions contained in Title 13 to the contrary, shall be subject to the following:
1. All Support Equipment shall be placed below grade in the public right -of -way where the
existing utility services (e.g., telephone, power, cable TV) are located underground.
Exception: Any pedestal meter required for the purpose of providing electrical service
power for the proposed Telecom Facility may be allowed to be installed above ground in
a public right -of -way.
2. Whenever Feasible, new Antennas proposed to be installed in public right -of -way shall
be placed on existing or replacement utility structures, light standards, or other existing
vertical structures.
3. Any proposed installation in the public right -of -way shall comply with all requirements of
the Americans with Disability Act (ADA), and all other laws, rules, and regulations.
�
CaIWA Comment No. 13: The "General Criteria" primarily focuses on
"aesthetics" and weights that criteria above all other concerns. No
other utility infrastructure must adhere to such unbalanced criteria
and wireless infrastructure. CalWA requests that the City begin to
look in a more balanced and tolerant manner towards this utility as
is afforded all other utility infrastructure.
D. Collocation Installations.
1. When Required. To limit the adverse visual effects of and proliferation of individual
Telecom Facilities in the City, a new Telecom Facility proposed within one thousand
(1,000) feet of an existing Telecom Facility shall be required to collocate on the same
building or structure as the existing Telecom Facility. Exception: If the reviewing
authority determines, based on compelling evidence submitted by the applicant, that
Collocation of one or more new Telecom Facilities within one thousand (1000) feet of an
existing Telecom Facility is not Feasible, and all findings required to grant approval of a
MUP, CUP or LTP for a Telecom Facility can be met, then such Collocation shall not be
required.
2. Condition Requiring Future Collocation. In approving a Telecom Facility, the review
authority may impose a condition of approval providing for future Collocation of Telecom
Facilities by other carriers at the same site.
20.49.060 — 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 intrusive means of providing
the service. Such techniques shall be employed to make the installation, appearance and
operations of the Telecom Facility as visually inconspicuous as possible. To the greatest
extent Feasible, Telecom Facilities shall be designed to minimize the visual impact of the
Telecom Facility by means of location, placement, height, screening, landscaping, and
camouflage, and shall be compatible with existing architectural elements, building materials,
other building characteristics, and the surrounding area. Where an existing structure is
replaced to allow for the addition of a Telecom Facility, the replacement structure shall retair
as its primary use and purpose that of the prior- existing structure. For an example, where a
streetlight standard is replaced with a different streetlight standard to allow for the additional
installation of Antennas, the primary use shall remain as a streetlight.
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 or
LTP 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, screened or
camouflaged 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 Telecom Facility, including topography,
vegetation, buildings, or other structures to provide the greatest amount of visual
screening and blending with the predominant visual backdrop.
B. Public View Protection. Telecom Facilities involving a site adjacent to an identified public
view point or corridor, as identified in General Plan Policy NR 20.3 (Public Views), shall be
reviewed to evaluate the potential impact to public views consistent with Section 20.30.100
(Public View Protection).
Page 17
C. Height. All Telecom Facilities shall comply with Antenna height restrictions, if any, required
by the Federal Aviation Administration, and shall comply with Section 20.30.060.E. (Airport
Environs Land Use Plan (AELUP) for John Wayne Airport and Airport Land Use
Commission (ALUC) Review Requirements) as may be in force at the time the Telecom
Facility is permitted or modified.
1.
Maximum Height. Antennas shall be installed at the minimum height possible to provide
average service to the Telecom Operator's proposed service area. In any case, no
Antenna or other telecom equipment or screening structure shall extend higher than the
CaIWA Comment No.
following maximum height limits:
14: These types of
facilities should be
a. Telecom Facilities installed on existing streetlight standards, traffic control standards,
permitted in
Utility Poles, Utility Towers or other similar structures within the public right -of -way
residential districts
shall not exceed 35 feet in height above the finished grade.
that are developed
b. Telecom Facilities may be installed on existing Utility Poles or Utility Towers that
non - residential land
exceed 35 feet above the finished grade where the purposes of the existing Utility
uses.
Pole or Utility Tower is to carry electricity or provide other wireless data transmission
provided that the top of the Antenna does not extend above the top of the Utility Pole
or Utility Tower.
c. Telecom Facilities installed in ground- mounted flagpoles may be installed at a
CalWA Comment
maximum height of 35 feet in nonresidential districts only, and shall not exceed 24
No. 15: Additional
inches in width at the base of the flagpole and also shall not exceed 20 inches in
heights should be
width at the top of the flagpole. As a condition of approval, flagpole sites shall
permitted up to 10
above the
comply with 4 U.S.C. § 1 et seq. ( the "U.S. Flag Code").
base height as
d. Telecom Facilities may be installed on buildings or other structures to extend up to 5
additional height
feet above the base height limit established in Part 2 (Zoning Districts, Allowable
could result in
Uses, and Zoning District Standards) for the zoning district in which the Telecom
lesser overall
Facility is located.
facilities and will
e. Applications for the installation of Telecom Facilities proposed to be greater than 5
allow for additional
collocations further
feet above the base height limit may be installed up to the maximum height limit for
reducing the
the zoning district in which the Telecom Facility is located in accordance with Section
number of overall
20.30.060.0.2 (Height Limit Areas), subject to review and action by the Planning
facilities needed in
Commission. The Planning Commission may approve or conditionally approve a
the future.
CUP for a Telecom Facility to exceed the base height limit by more than 5 feet after
making all of the required findings in Section 20.49.070.H (Permit Review
Procedures).
2.
Over - Height Buildings or Structures. Stealth Telecom Facilities may be installed within or
on structures that are permitted to exceed the height limit for the zoning district in which
the structure is located, either by right under Title 20 or which have received a
discretionary approval, so long as the height of the structure is not being increased. The
standard of review shall be based on the type of installation and Antenna Classes being
used.
D. Setbacks. Proposed Telecom Facilities shall comply with the required setback established
by the development standards for the zoning district in which the Telecom Facility is
proposed to be located. Setbacks shall be measured from the part of the Telecom Facility
closest to the applicable lot line or structure. For ground- mounted Wireless Towers installed
on public property or private property, unless the review authority determines a smaller
setback would be appropriate based on the surrounding development or uses, the setback
CalWA Comment No. 17: This land use is by definition a "utility ". As CalWA Comment No. 16: This is
critical "utility infrastructure" some tolerance of "aesthetics" unecessary and could exclude many
associated with utility infrastructure needs to considered and afforded good opportunities for appropriate
this land use as it is afforded other "utilities ". Over emphasis of locations. This requirement should be
"aesthetics ". removed.
shall be the greater of: a) the required setback established by the development standards
for the zoning district in which the Telecom Facility is proposed to be located; or b) 110% of
the maximum height of the Wireless Tower including any Antenna or Antenna enclosures
attached thereto.
E. Design Techniques. Design techniques shall result in the installation of a Telecom Facility
that is in scale with the surrounding area, hides the installation from predominant views from
surrounding properties, and prevents the Telecom Facility from visually dominating the
surrounding area. Design techniques may include the following:
1. Screening elements to camouflage, 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, camouflage, or hide the Telecom Facility.
4. Utilizing simulated natural features (trees, rocks, etc.) to screen, camouflage, 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 Telecom Facility would create greater visual
impacts than the Telecom Facility itself.
F. Screening Standards. Following is a non - exclusive list of potential design and screening
techniques that should be considered based on the following Antenna Classes:
CaIWA Comment
No. 17: How is
this section
anticipated to be
applied?
Wholesale
change out of
the WTF would
not be
acceptable.
Please clarify. 2.
For Class 1 (Camouflaged /Screened) Antenna Installations:
a. All Telecom Facility components, including all Antenna panels and Support Equipment,
shall be fully screened, and mounted either inside the building or structure, or behind the
proposed 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 conditions where the Antennas and Support Equipment are installed within a new
freestanding structure, (an architectural feature such as a steeple, religious symbol or
tower, cupola, clock tower, sign, etc.), the installation shall blend in the predominant
visual backdrop so it appears to be a decorative and attractive architectural feature.
For Class 2 (Collocation) Antenna Installations:
a. A Collocation installation shall use screening methods materially similar to those used on
the existing Telecom Facility and shall not diminish the screening of the existing
Telecom Facility.
b. If determined necessary by the review authority, use of other improved and appropriate
screening methods may be required to screen the Antennas, Base Station, and Support
Equipment from public view.
3. For Class 3 (Visible) Antenna 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
..- .
CaIWA Comment No. 18A: The requirement for locating associated radio transmission / amplificaton
equipment inside the streetlight pole or traffic control standard "without increasing the pole width or
shall be mounted in a flush -to -grad enclosure adjacent to the base of the pole" is onerous and cost
prohibitive. It is also unequitable treatment when compared to other utility infrastructure within the
ROW. We request an option for above ground equipment be available.
Antennas are mounted. No cables and mounting brackets or any other associated
equipment or wires shall be visible from above, below or the side of the Antennas.
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.
C.
CalWA
Comment No.
18: If this
additional
screening is
done this type
of facility y d
should be
Class 1.
CalWA Comment No.
19: This should be a
Class 1 type facilitye
Antenna installations in the public right -of -way and /or on an existing or replacement
streetlight pole or traffic control standard shall be limited to Antennas, Supporting
Equipment, and cable components that are compatible in scale and proportion to
streetlights and traffic control standards and the poles on which they are mounted. All
transmission or amplification equipment such as remote radio units, tower mounted
amplifiers and surge suppressors shall be mounted inside the streetlight pole or traffic
control standard without increasing the pole width or shall be mounted in a flush -to-
grade enclosure adjacent to the base of the pole.
Antenna installations on existing or replacement streetlight poles, traffic control
standards, 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. 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 existing pole.
Antennas shall be mounted on existing poles wherever Feasible. If a new pole is
proposed to replace the existing pole, the replacement pole shall be consistent with the
size, shape, style and design of the existing pole, including any attached light arms.
\For Class 4 (Freestanding Structure) Antenna Installations:
a. For a false rock, the proposed screen structure shall match in scale and color other rock
outcroppings in the general vicinity of the proposed site. A false rock screen may not be
considered appropriate in areas that do not have natural rock outcroppings.
b.
The installation of a false tree (such as but without limitation a monopine or monopalm,
CalWA Comment No.
or false shrubbery) shall be designed for and located in a setting that is compatible with
20: In industrial/
manufacturing zones
the proposed screening method. Such installations shall be situated so as to utilize
this design option is
existing natural or manmade features including topography, ve etation, buildings, or
9 9 9 9
appropriate and
other structures to provide the greatest amount of visual screening. For false trees or
helps reduce costs of
shrubbery installations, all Antennas and Antenna supports shall be contained within the
facilities for all. Also
canopy of the tree design, and other vegetation comparable to that replicated in the
in proximity to
proposed screen structure shall be prevalent in the immediate vicinity of the antenna
transmission lattice
site, and the addition of new comparable living vegetation may be necessary to enhance
towers similar lattice
tower designs are
the false tree or shrubbery screen structure.
most appropriate. c.
The installation of a new Monopole or Lattice Tower is prohibited unless the applicant by
use of compelling evidence can show to the satisfaction of the review authority that
higher priority locations or Stealth Facilities are either not available or are not Feasible.
5. For Class 5 (Temporary) Antenna Installations:
a. 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 Telecom Facility.
Page 110
CalWA Comment No. 21: Need
clarification on this Class?
6. Support Equipment. All Support Equipment associated with the operation of any Telecom
Facility including but not limited to the Base Station shall be placed or mounted in the least
visually obtrusive location possible, and shall be screened from view. The following is a
non - exclusive list of potential screening techniques that may be utilized based on the type of
installation:
CalWA Comment a. Building- Mounted Facilities. For building or structure - mounted Antenna installations,
No. 22: This is
not a feasible '**,Support Equipment for the Telecom Facility may be located inside the building, in an
option. should be underground vault, or on the roof of the building that the Telecom Facility is located on,
removed. provided that both the equipment and screening materials are painted the color of the
building, roof, and /or surroundings. All screening materials for roof - mounted Telecom
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
view authority, screening to avoid adverse impacts to views from land or buildings at
hi er elevations shall be required.
a build
CaIWA Comment No. 23
It is not feasible to
provide above ground
support equipment
within the pole without
some reasonable
increase in width being
permitted. This section
should be redrafted.
W
I Facilities. For freestanding Telecom Facilities installations, not mounted on
structure, Support Equipment for the Telecom Facility:
Shall bikvisually screened by locating the Support Equipment in a fully enclosed
building or in an underground vault, or
Shall be screened in a security enclosure consisting of walls and /or landscaping
to effectively screen the Support Equipment at the time of installation. 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.
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 or
camouflaged to blend with surrounding materials and colors.
c Installations in a Public Right -of -Way. 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, fighting and /or traffic signal equipment
without substantially increasing the width of the structure.
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 required 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 Telecom 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.
Page 111
I. Nonconformities. A proposed Telecom Facility shall not create any new or increased
nonconformities 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.
J. Maintenance. The Telecom Operator shall be responsible for maintenance of the Telecom
Facility in a manner consistent with the original approval of the Telecom Facility, including
but not limited to the following:
CalWA Comment 1. Any missing, discolored, or damaged camouflage or screening shall be restored to its
No. 25: For those original permitted condition.
facilities that are 2. All graffiti on any components of the Telecom Facility shall be removed promptly in
not visible and not accordance the Newport Beach Municipal Code.
within a residential 3. All landscaping required for the Telecom Facility shall be maintained in a healthy
zone nor within condition at all times, and shall be promptly replaced if dead or dying.
r of a
residential zone a 4. All Telecom Facilities shall be kept clean and free of litter.
ministerial permit 5. All equipment cabinets shall display a legible contact number for reporting maintenance
option to problems to the Facility Operator.
incentivize and 6. If a flagpole is used for a Telecom Facility, flags shall be flown and shall be properly
reduce processing maintained at all times. The use of the United States flag shall comply with the
costs and time provisions of the U.S. Flag Code.
should be an CalWA Comment No. 24: More incentivized zoning
option. f- principles should be incorporated into the "Permit
20.49.070 — Permit Review Procedures. Review Procedures ".
The procedures and requirements for preparation, filing, and processing of a permit application
for a Telecom Facility shall be as specified in Chapter 20.50 (Permit Application Filing and
Processing) unless otherwise noted below.
A. Permit Required. All applicants for Telecom Facilities shall apply for a MUP, CUP or LTP,
from the Community Development Department, depending on the Antenna Class, height,
and duration, as specified in the table below:
CalWA Cc
Nonresidc
ministeriz
the nonre
Table 4 -1
Permit Requirements for Telecom Facilities
Page 112
ment No.
)cation
ire a CUP.
Location
of Proposed Telecom
Facilit
Located in a
Located inside or
Located inside or
mment No. 25: For
Nonresidential
within 150 feet of any
within 150 feet of
ntial there should be a lesser
District more than
Open Space District
any Residential
I process to further insentivize
sidential locations.
150 feet from a
or Public Park or
District or
Residential (or
Public Facility zoned
Equivalent PC
Equivalent PC)
PR or PF
District
District or Open
CalWA Co
Space District or
26: No Coll
Public Park or
should req
Public Facility
zoned PR or PF
Class 1 Antenna (a)
MUP
MUP
MUP
(Camouflaged/Screened)
Class 2 Antenna (a) (b)
MUP
MUP
CUP
(Collocation)
Class 3 Antenna (a)
MUP
MUP
CUP
Visible
Page 112
ment No.
)cation
ire a CUP.
CalWA Comment No. 27: Should be CalWA Comment No. 28: For WTF located in
allowed via MUP if within height limits of Residential Zones with non - residential land
underlying zone and "stealthed ". uses, a MUP or ministerial permit should be
afforded if completely screened.
CalWA Comment No.
29: Is this for
emergency facilities?
Not clear.
Antenna Cl
tion of Proposed Telecom
Class 4 Antenna (a) (c)
MUP
CUP
CUP
(Freestanding Structure
Class 5 Antenna (a) (c) (d)
LTP
LTP
LTP
Temporary)
CalWA
Comment No. (a)
30: Has the City
conducted
Environmental
Reviews on
wireless
facilities as a
matter of
routine or are (b)
most facilities
determined to
be "Exempt"
from the
provisions of
CEQA
(Categorically). (C)
CalWA /-(d)
Comment No.
31: What is the
purpose of this
limitation? This B. Application Submission Requirements for Telecom Facilities on City -owned or City -
excludes held Trust Properties. Prior to the submittal for any application for any Telecom 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.
Any application for a Telecom Facility that proposes to exceed the base height limit of
the applicable zoning district in which the Telecom Facility is located by greater than five
(5) feet shall require review and action of a CUP by the Planning Commission. Pursuant
to this provision, an application that would otherwise be subject to review by the Zoning
Administrator would become subject to review by the Planning Commission. The
Planning Commission may approve or conditionally approve a CUP, subject to the
required findings in Subparagraph H, below.
The review procedure for Collocated Telecom Facilities shall be consistent with the
applicable review procedure as identified elsewhere in this table depending on the type
of installation and Antenna Class being proposed for the Collocation, unless the
Collocated Telecom Facility meets the requirements of California Government Code §
65850.6, or involves the Collocation of new transmission equipment and is consistent
with the provisions in Section 20.49.100 (Modification of Existing Telecom Facilities).
Antennas mounted on or within flagpoles, and temporary Telecom Facilities shall not be
permitted on properties either used or zoned residentially.
Temporary Telecom Facilities shall be subject to the standard of review for an LTP,
pursuant to Section 20.52.040 (Limited Term Permits).
numerous
appropriate
land use
locations that
are zoned C
residential but
may have other
land uses,ie.
churches whichp
provide
excellent
locations in
proximity to
residential usesE.
where these
facilities are I
extremely /
necessary.
Fee. All costs associated with the permit application review shall be the responsibility of the
applicant, including any expense incurred for any outside technical or legal services in
connection with the application.
Review Process. Review of applications for all Telecom Facilities in City shall be consistent
with Chapter 20.50 (Permit Application Filing and Processing), and the FCC Declaratory
Ruling FCC 09 -99 ( "Shot Clock ") deadlines.
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 Telecom Facility to an existing Telecom Facility resulting
in the establishment of a Collocated Telecom Facility shall be a permitted use not requiring
a discretionary permit provided the underlying Telecom Facility was granted a discretionary
permit and was subject to either an environmental impact report, mitigated negative
declaration or negative declaration. If such a Collocated Telecom Facility does not satisfy
all of the requirements of Government Code section 65850.6, it shall be reviewed pursuant
the review procedures contained in Section 20.49.070 (Permit Review Procedures).
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.
CalWA Comment No. 32: Has it been the practice to conduct
Environmental Reviews pursuant to CEQA for facilities in Newport Page 113
Beach? If so then would this State Code section be invoked?
CalWA Comment No. 33: This requirement is inconsistent
with State and Federal Collocation laws. Some recognition of
the Class 1 type facility and collocations should be included
herein. Also further incentivization of process would be the
ministerial permit for Class 1 and collocations that are
consistent with State Code section, 65850.6.
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 Telecom 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 Telecom Facility
shall require a public notice, and a public hearing shall be conducted, in compliance with
Chapter 20.62 (Public Hearings).
H. Required Findings for Telecom Facilities. The following findings shall apply to all
Telecom Facilities:
2. Findings to Increase Height. The review authority may approve, or conditionally approve
an application for a Telecom Facility which includes a request to exceed the base height
/limit for the zoning district in which the Telecom Facility is located by more than 5 feet only
after making each of the following findings in addition to the required findings above, as well
CalWA Comment the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use
No. 35:
1. General. The review authority indicated in Table 4 -1 may approve or conditionally
Additional
approve an application for a Telecom Facility only after first finding each of the required
CalWA Comment
findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use Permits and
No. 34: These
Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term Permits), and
criteria are
each of the following:
extremely
adjacent developments or public spaces.
subjective and
. The proposed Telecom Facility is visually compatible with the surrounding
not consider th
neighborhood.
technical
requirements o.
\re.
The proposed Telecom Facility complies with the technology, height, location and desigr
the land use.
standards, as provided for in this Chapter.
These criteria a
An alternative site(s) located further from a Residential District, Public Park or Public
unbalanced with
Facility cannot feasibly fulfill the coverage needs fulfilled by the installation at the
overemphasis on
proposed site.
"aesthetics ".
d. An alternative Antenna construction plan that would result in a higher priority Antenna
Class category for the proposed Telecom Facility is not available or reasonably Feasible
and desirable under the circumstances.
2. Findings to Increase Height. The review authority may approve, or conditionally approve
an application for a Telecom Facility which includes a request to exceed the base height
/limit for the zoning district in which the Telecom Facility is located by more than 5 feet only
after making each of the following findings in addition to the required findings above, as well
CalWA Comment the required findings for a MUP or CUP pursuant to Section 20.52.020 (Conditional Use
No. 35:
Permits and Minor Use Permits), or an LTP pursuant to Section 20.52.040 (Limited Term
Additional
Permits):
height should be
permitted as
a. The increased height will not result in undesirable or abrupt scale changes or
required. An
addiitonal 5'
relationships being created between the proposed Telecom Facility and existing
only is too
adjacent developments or public spaces.
onerous and will
b. Establishment of the Telecom Facility at the requested height is necessary to provide
result in many service.
more facilties
being required20.49.080 — 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 114
CaIWA Comment No. 36: CaIWA requests that this process be concurrent
rather than linear.
20.49.090 — 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 or LTP. Upon the
issuance of a MUP, CUP or LTP, as required, and upon entering into an agreement, the
applicant shall obtain any and all other necessary permits, including, encroachment permits for
work to be completed in the public right -of -way, 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.
20.49.100 — Modification of Existing Telecom Facilities.
Notwithstanding any provision in this Chapter of the Zoning Code, a request for a modification of
an existing Wireless Tower or Base Station that involves:
CalWA Comment No. 37: What is an example of
a. The Collocation of new transmission equipment; a "Telecom Facility that does not qualify as a
b. The removal of existing transmission equipment; or Wireless Tower or ease Station ". Needs
c. The replacement of existing transmission equipment clarification.
shall be subject to a ministerial review and approval without the processing of a discretionary
permit provided that such modification does not substantially change any of the physical
dimensions of such Wireless Tower or Base Station from the dimensions approved as part of
the original discretionary permit for the Wireless Tower or Base Station.
However, any modification to a Wireless Tower or Base Station which substantially changes the
physical dimensions of either the Wireless Tower or Base Station, and any other modification to
a Telecom Facility that does not qualify as a Wireless Tower or Base Station, shall be subject to
the permits and authorizations required by this Chapter.
"Substantially Change the Physical Dimensions" means any of the following, and refers to a
single change, or a series of changes over time (whether made by the same or different entities)
viewed against the City approval(s) for the Wireless Tower or Base Station as existing on
February 22, 2012, that individually or cumulatively have any of the effects described below:
a. Changing any physical dimension of the Wireless Tower or Base Station in a manner that
creates a violation of any safety code adopted by the City, or by the state or federal
government.
b. Changing the physical dimension of a Stealth Facility on a Wireless Tower, where the
changes would be inconsistent with the design of the Stealth Facility, or make the Wireless
Tower more visible.
c. Changing the physical dimension would require work that would intrude upon the public
right -of -way, or any environmentally sensitive area.
d. Increasing or decreasing by five percent (5 %) or more any of the following:
CaIWA Comment No. 38: Nearly any additional facilities incorporated onto an Ca WA Comment No. 39: This threshold
existing facility could be interpreted to "make the Wireless Tower more visible ". is vague and unclear. Delete or clarify.
This needs to be clarified and relaxed to accomodate collocations without being Page 15
determined to crossing this "threshold ".
CalWA Comment No. 40: This should be
increased to 10 %.
CalWA Comment No. 41: These additional
constraints are confusing and unclear.
Delete or clarify. A simple 10% increase it
volume is simple enough.
• The height, width, or depth in any direction of any portion of the Wireless Tower or Base
Station; or
• The area required for structures required to support the Wireless Tower, including but
not limited to guy wires as approved and constructed through the discretionary permit
process
Provided that in no event shall the height is increased to exceed the maximum height
permitted in the applicable zoning district under the City's regulations.
e. Increasing by more than five percent (5 %) any of the height, width, depth or area
encompassed within any structure or object enclosing the Wireless Tower, such as a fence
or line of shrubs or bushes.
f. Increasing any of an existing Antenna Array's depth, circumference, or horizontal radius
from the Wireless Tower in any direction by more than five percent (5 %).
g. Adding more than two Antenna Arrays to an existing Wireless Tower, or adding Antenna
Arrays that, if the Antenna Array were an existing Antenna Array, would be of such depth,
circumference or radius as to fall outside of item f (above), unless such Antenna Arrays were
approved pursuant to Government Code Section 65850.6.
h. The mounting of the new or replacement transmission equipment would involve installing
new equipment cabinet(s) not permitted under the initial approval and that will not fit within
the existing enclosure for the Wireless Tower or Base Station, or would require installation of
a new cabinet or enclosure, excluding new equipment and cabinets that will be installed
underground. (Note: the proposed installation of a power back -up system [i.e., gas /diesel
generator, fuel cell, battery system, etc.] is not Collocation of new transmission equipment.)
i. Any increase in any physical dimension of a Wireless Tower or Base Station or any
equipment related thereto or any enclosure thereof at a Legal Nonconforming Facility.
Each application submitted under this section for a modification to an existing Wireless Tower or
Base Station 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 Wireless Tower as originally constructed, if available;
a current photograph of the existing Wireless Tower and /or Base Station; and, a graphic
depiction of the Wireless Tower and /or Base Station after modification showing all
relevant dimensions;
3. A 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 to be performed will not
trigger discretionary review under this section.
Any permit issued will be conditioned, and may be revoked, and the Telecom Facility required to
be removed or restored to its pre- modification condition if:
a. Any material statement made with respect to the Telecom Facility is false; or
b. The modifications as actually made would have triggered a discretionary review.
20.49.110 — 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
Page 116
CalWA Comment No. 42: CalWA has worked with jurisdictions
across the State. It is our experience that when additional
testing is required it is so far below allowable limits as set by
the FCC that is to be unwarranted. Please delete this
requirement as it adds additional burdens and expenses that
do not yeild meaningful information.
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 Telecom 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 Telecom Facility operating at its maximum effective radiated power level,
rather than on estimations or computer projections. If the report shows that the Telecom 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 that use of the
Telecom 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.
A qualified independent radio frequency engineer, selected and under contract to the City, may
be retained to review said certifications for compliance with FCC regulations. All costs
associated with the City's review of these certifications shall be the responsibility of the
permittee, which shall promptly reimburse City for the cost of the review.
20.49.120 — Right to Review or Revoke 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.
20.49.130 — 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
Page 117
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 Telecom 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 the Telecom Facility, the City may, but shall not be required to, store
the removed Telecom Facility or any part thereof. The owner of the premises upon which
the abandoned Telecom Facility was located and all prior operators of the Telecom
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 Telecom 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 Section D.
Page 118
J,4 C(]O /t /r\ r Crown Cast @e Tel 909- 593 -9700
J� t.Jl t/ t�' f \r 2125 Wright Avenue, Suite C -9 Fax 909- 5939770
t La Verne, CA 91750 www.crowncas le.com
August 28, 2012
VIA U.S. MAIL AND E -MAfL
Janet Johnson Brown, Associate Planner
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92663
Re City of Newport Beach Wireless Telecommunications Facilities Ordinance (City
of Newport Beach Municipal Code 20.49.010 et se g.)
I-12MuM617 4itsiiA
Crown Castle hereby submits its comments on the proposed amendments to the City of
Newport Beach ( "City') Wireless Telecommunications Facilities Ordinance (Newport Beach
Municipal Code ( "NBMC" ), § 20.49.010, et seq.) ( "Wireless Ordinance ").
Crown Castle requests that the City reject the proposed Wireless Ordinance in its current
form, and work with industry representatives to craft a revised ordinance consistent with state
and federal law.
L Introduction.
The California Public Utility Commission has issued to Crown Castle a "certificate of
public convenience and necessity which identifies the company as a telephone corporation under
California law and more specifically as a "competitive local exchange carrier" ( "CLEC ") and a
"public utility." Telephone corporations have a special status under state law (see, e.g., Pub.
Util. Code § 216.) and are authorized to "erect poles, posts, piers, or abutments" in the public
right of way ( "ROW ") subject only to local municipal control over the "time, place and manner"
of access to the ROW. (Id. at §§ 1001, 7901; 7901.1; see Williams Communication v. City of
Riverside (2003) 114 Cal.App. 41h 642, 648 [upon obtaining a CPCN, a telephone corporation
has `the right to use the public highways to install [its] facilities. "].)
Crown Castle develops wireless telecommunications infrastructure in the ROW. Its
systems, known as "distributed antenna systems," or "DAS," consist of several small -scale
antenna "nodes" connected by optic fiber to a central hub. Each node receives optic signal from
the hub and converts that signal into radio frequency (RF) signals for use by users in the area.
Among other things. DAS is employed for wireless broadband. Wireless broadband is proving
transformative on a global scale. As smartphones and tablets proliferate. , data demand is
leading to a critical deficit in wireless spectrum, requiring more wireless antennas and
infrastructure. According to a 2011 report, wireless data traffic was 110 percent higher in 2011
City of Newport Beach
August 28, 2012
Page 2
than in the last half of 2010. Similarly, AT &T reports that its wireless data volumes have
increased 30 -fold since the introduction of the iPhone.' Adding to the mix, 25 percent of all
American homes are now wireless only.2 and wireless data traffic is expected to grow by a factor
of 20 between 2010 and 2015.1 DAS can provide the critical network capacity to address such
demand into the 21st Century.
Crown Castle's representatives were in attendance at the July 19, 2012, Planning
Commission hearing, and more recently at the July 25, 2012, Stakeholder Meeting, where the
Wireless Ordinance was discussed. This letter summarizes Crown Castle's comments
concerning the Wireless Ordinance.
2. Applicable Legal Principles.
A. State Law.
State law, including Public Utilities Code section 7901 ( "Section 7910 "), governs the
permitting of wireless telecommunications facilities in the ROW. Under Section 7901 Crown
Castle qualifies as a "telephone corporation" with a "vested right" to occupy the ROW
throughout the state. That vested right supersedes local franchise requirements and is guaranteed
by both the state and federal constitutions. (Williams Communications v. City of Riverside,
.supra, I l4 Cal.App_4th at p. 648; see also, Petaluma v. Pacific Tel. & Tel. Co. (1955) 44 Cal.2d
284, 288 -289 [statewide franchise of Section 7901 is a "vested right'; no local franchise is
necessary to enter municipal streets]; County of L. A. v. Southern Cal. Tel. Co. (1948) 32 Cal.2d
378, 384 [same principle cited]; Postal Tel. Cable Co. v. Railroad Cam. (1927) 200 Cal. 463,
472 [ "[t]he rights acquired by ... the provisions of the section, are vested rights which the
constitutions, both state and federal, protect. "D
The rights afforded by Section 7901 are a matter of `statewide concern" that supersede --
and therefore obviate the need for -- a municipal grant of entry to the ROW. (City of Petaluma v.
Pac. Tel. and Tel. Co., supra, 44 Cal.2d at pp. 287 -289; see also Williams Communication v. City
of Riverside, supra, 114 Cal.App.4th at p. 65' ) [`the construction and maintenance of telephone
lines in the streets and other public places within the City is today a matter of state concern and
not a municipal affair. "].) The Legislature enacted SB621, now codified as Public Utilities Code
section 7901.1, in 1994 to regulate construction activities in the ROW .4 Section 7901.1 (Section
7901.1), provides, in relevant part, "that municipalities shall have the right to exercise reasonable
control as to the time, place, and manner in which roads, highways, and waterways are
accessed." (Pub. Util. Code, § 7901.1.) Section 7901.1 goes on to state that "[t]he control, to be
reasonable, shall, at a minimum. be applied to all entities in an equivalent manner." (Ibid.)
Government Code section 50030 also applies to telephone corporations seeking to install
their facilities in the ROW. That section provides that a city may not require payment for entry
Executive Office of the President Council of Economic Advisors (White House, Feb. 2012) at 2 -6.
U.S. Department of Health and Human Services (April 2011),
a Id.
CAL. PUB. UTn.. CODE § 7901.1 (West Supp. 1997); see Analysis of SB 621, Cal. Sen. Rules Comm., Office of
Senate Floor Analyses (S. 1994 -95 Reg. Sess.)
City of Newport Beach
August 28, 2012
Page 3
into its ROW. Specifically, a city cannot impose an exaction that exceeds the "reasonable costs
of providing the service for which the fee is charged." (Williams Communications v. City of
Riverside, supra, 114 Cal.App.4th at p. 648.)
The above statutes and case law give rise to four principles that should inform the City's
deliberations about the siting of Crown Castle's DAS facilities:
(1) Crown Castle has vested right to utilize the City's ROW:
(2) The City's permitting requirements for Crown Castle must be imposed in a non-
discriminatory manner and applied equally to "all entities" using the public ways
of the City (not just applied equally among all telephone corporations;
(3) Crown Castle need not obtain a local "franchise" to enter the City's ROW; and
(4) The City is prohibited from imposing any fee to use the ROW, beyond what is
required to address the "reasonable costs of providing the service for which the fee is charged"
(i.e., the City cannot assess a general revenue fee for use the ROW).
B. Federal Law.
The City also is governed by the federal Telecommunications Act of 1996, Pub. L. No
104 -104. 110 Stat. 56 (codified as amend in scattered sections of U.S.C., Tabs 15. 18,47)
( "Telecom Act"). When enacting the Telecom Act, Congress expressed its intent "to promote
competition and reduce regulation in order to secure lower prices and higher quality services for
American telecommunications consumers and encourage the rapid deployment of new
telecommunications technologies," (110 Stat. at 56.) As one court noted:
Congress enacted the TCA to promote competition and higher
quality in telecommunications services and to encourage the rapid
deployment of new telecommunications technologies. Congress
intended to promote a national cellular network and to secure
lower prices and better service for consumers by opening all
telecommunications markets to competition.
(T- Mobile Central, LLC v. Unified Government of Wyandotte, 528 F.Supp. 2d 1128, 1146 -47 (D.
Kan. 2007). One way in which the Telecom Act accomplishes these goals is by reducing
impediments imposed by local governments upon the installation of wireless communications
facilities, such as antenna facilities. (47 U.S.C. § 332(c)(7)(A).) Section 332(c)(7)(B) provides
the limitations on the general authority reserved to state and local governments. Those
limitations are set forth as follows:
(1) State and local governments may not unreasonably discriminate among providers
of functionally equivalent services (§ 332(c)(7)(B)(i)(I)).
(2) State and local governments may not regulate the placement. construction or
modification of wireless service facilities in a manner that prohibits, or has the
effect of prohibiting, the provision of personal wireless services (better known as
the "effective prohibition clause ") (§ 332(c)(7)(B)(i)(I1)).
City of Newport Beach
August 28, 2012
Page 4
(3) State and local governments must act on requests for authorization to construct or
modify wireless service facilities within a reasonable period of time
(§ 332(c)(7)(B)(ii)) . 5
(4) Any decision by a state or local government to deny a request for construction or
modification of personal wireless service facilities must be in writing and
supported by substantial evidence contained in a written record
(§ 332(c)(7)(B)(ui)).
(5) Finally, no state or local government or instrumentality thereof may regulate the
placement, construction or modification of personal wireless service facilities on
the basis of the perceived environmental effects of radio frequency emissions to
the extent that such facilities comply with federal communications commission's
regulations concerning such emissions (§ 332(c)(7)(B)(iv)).
3. Specific Comments.
In light of the above principles, Crown Castle submits the following comments
concerning specific provisions of the Ordinance:
(a) Sections 20.49.020, 20.49.070 - Discretionary Approval: The Ordinance sujects
ROW facilities to the same discretionary entitlement process (a CUP, MUP, or LTP) that
governs wireless telecommunications facilities on private property under the City's zoning
( "Telecom Facilities "). The process purports to grant a right of entry to the ROW in exchange
for the satisfaction of conditions of approval. By failing to provide for an exception for CLECs
seeking to utilize the City ROW, the Ordinance conflicts with time - honored state law confirming
the existence of a vested right to enter and use the ROW without having to obtain a local
franchise. (Williams Communications v. City of Riverside, supra, 114 Cal.App.4th at p. 648; see
also Western Union Telegraph Co. v. Hopkins (1911) 160 Cal. 106 [observing "that the state in
its sovereign capacity has the original right to control all public streets and highways" and that
the section 536 franchise "included the right to such exclusive occupation by the company of
portions of the streets as is maintained for the purpose of its system, leaving nothing in that
behalf to be granted by the municipality. "].) Since the Ordinance provides no exemption for
CLECs seeking to invoke Section 7901 franchise rights, these sections conflict with state law.
(b) Section 20.49.030 — Definitions: The definitions section defines "public rights -
of -way" to mean only the "surface" of any street or public way. By restricting the definition of
ROW only to the surface of the street, the Wireless Ordinance precludes extension of the ROW
to spaces occupied by poles and other above - ground facilities, thereby conflicting with Section
7901, which extends ROW franchise rights to the ability to construct "poles, posts, piers, or
` This provision has been interpreted by the Federal Communications Commission ("FCC ") to require local
governmental agencies to act ou wireless telecommunications siting applications within 150 days, or 90 days for
collocation facilities. see Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(13) to Ensure Timely Siting
Review and to Preempt Under Section 253 State and Local Ordinances that Classify All Wireless Siting Proposals as
Requiring a Variance (Federal Communications Commission, Nov. 18, 2009) WT Docket No. 08 -165.
City of Newport Beach
August 28, 2012
Page 5
abutments for supporting the insulators, wires, and other necessary fixtures." (Pub. Util. Code,
§ 7901.)
(c) Section 20.49.040: Available Technology: The Wireless Ordinance provides
that Telecom Facilities "shall utilize the most efficient, diminutive and least obtrusive available
technology ...." The mandatory language of the provision could be read to hold all wireless
carriers and infrastructure developers to impossible technological standards that are outside the
purview of local government to impose. Many design considerations must be taken into account
in constructing a wireless network, including the need for coverage, capacity, and the ability to
incorporate technological changes and upgrades. Such decisions are the prerogative of telephone
corporations governed by the regulations of the California Public Utilities Commission, not the
City under the proposed Ordinance.
(d) Section 20.49.050: Location Preferences: DAS facilities generally utilize
exiting vertical elements in the ROW, such as utility poles and streetlights. The "location
preferences" relegate such facilities to "Class 3" type facilities, thereby rendering them more
difficult to approve or subjecting them to greater scrutiny. By imposing more stringent controls
over such facilities, the Wireless Ordinance purports to vest greater discretion in the decision -
maker to deny access to the ROW, thereby asserting greater control over areas outside the
ordinary zoning authority of the local agency. This section is in direct conflict with the statewide
franchise rights granted to Crown Castle under § 7901, as discussed above.
(e) Section 20.49.050(B): Prohibited Zones: The Wireless Ordinance imposes, an
outright ban on all Telecom Facilities located in zoning districts for single -unit or two unit
residences, all multi -unit and mixed -use developments consisting of fewer than five units and all
open -space zoning districts. The prohibited zones provision contains no exception for the ROW
and no exception for technical constraints imposed by RF coverage needs. Such zoning
restrictions therefore conflict with Section 7901 and could give rise to a prohibition of service
under section 332(c)(7)(B)(i)(I1) of the Telecom Act.
(f) Section 20.49.050(C): Installations in the Pub &c Right -of -Way: This section
incorporates, in toto, Chapter 1320 of the NBMC, which prohibits new poles in underground
districts (see NBMC, § 13.20.030(A)) and thereby forces CLECs, such as Crown Castle, to use
existing vertical elements, such as city -owned poles (subjecting them to a $1,500 per -month fee).
This section purports to prohibit installation of new poles in the ROW, in direct conflict with
Section 7901. hisofar as the provision requires collocation on existing city streetlights, thereby
subjecting the applicant to the City's license fee provisions, the section violates Government
Code section 50030.
(g) Section 20.49.060: General Development and Design Standards: The
Wireless Ordinance places a heavy emphasis on aesthetic criteria. Other public utilities utilizing
the ROW are not subject to such stringent approval criteria. This section therefore conflicts with
Section 7901. 1, which requires that all "entities" in the ROW be treated in an equal manner.
City of Newport Beach
August 2$, 2012
Page 6
(h) Section 20.49.060(0): Height: This section would impose a 35 -foot height
limitations on facilities located on existing vertical elements in the ROW. The provision features
no technical feasibility exception, nor is there any determination or policy statement concerning
how such a limitation is legitimately based on the "time, place and manner" controls allowed to
local governmental agencies by Section 7901. Accordingly, the provision conflicts with Section
7901. In addition, this section also fails under application of the "all entities" standard of
§ 7901.1.
(i) Section 20.49,060(D): Setbacks: The Ordinance also incorporates the standard
setback restrictions imposed by the applicable zoning district. Such exclusions may constitute an
outright prohibition, in violation of section 332(c)(7)(13)(i)(11), as well as a ban on ROW entry, in
violation of Section 7901.
(j) Section 20.49.060(F)(3)(c): Screening Standards: This section requires all
ancillary DAS equipment to be located within the pole "without increasing the pole width" or
located underground. Such a requirement is onerous and cost - prohibitive, if not impossible, to
meet. At a minimum, a technical feasibility exception should be incorporated into this section,
(k) Section 20.49.090: City -Owned Property: As noted above, the proposed
amendments incorporate Chapter 13 20 of the NBMC, which prohibits new poles in
undergrounding districts (see NBMC, § 13.20.030(A)) and thereby forces CLECs, such as
Crown Castle, to use existing vertical elements, such as city -owned poles (subjecting them to a
$1,500 a month fee). This section, in combination with Section 20.49,050(C), could result in
situations where the applicant is forced onto City -owned vertical elements, requiring the
applicant to the pay the City's license fees, in violation of Government Code section 50030.
Crown Castle reserves its rights under federal and state law, including Government Code
Section 65009, to challenge the Ordinance on the above grounds or additional grounds not
specifically raised.
4. Conclusion.
The proposed amendments to the Wireless Ordinance, as currently drafted, do not take
account of telephone corporations' rights under Section 7901. Instead of providing for a more
limited form of local review over ROW facilities that would be consistent with the City's limited
authority to impose "time, place, and manner" rules governing in an equivalent manner "all
entities "' access to the public way, the proposed amendments do the opposite: they impose a
second tier of requirements, above those already in place for private property sitings. (See, e.g.,
NBMC, § 20.49.050(B).) At a minimum, Crown Castle would like to see an exception from the
discretionary use permit requirement for "Telecom Facilities" located in the ROW, with
appropriate time, place, and manner controls embodied in a ministerial design review process.
Because of the reasons stated in this letter, Crown Castle asks that the City reject this
proposed ordinance.
City of Newport Beach
August 28, 2012
Page 7
We appreciate the City's consideration of the matters contained in this letter. We will be
present at the September 6, 2012, Planning Commission meeting and, in the meantime, are on
hand to answer any questions you may have or to work with the City Planning Commission and
Staff to address the concerns herein.
Very truly yours,
Dan Schweizer
Government Relations Counsel
Crown Castle NG West Inc.
[ultdb9RM
323(1377.1
ADDITIONAL
MATERIALS
RECEIVED
Wireless Telecommunications
Facilities Ordinance
Code Amendment No. 2012-004
r
✓O�
0 Y�
4� L7
Planning Commission
Study Session
September 6, 2012
e
STAFF PRESENTATION
site
■ Existing Ordinance Adopted in 2002
L Comprehensive update
■ Update to reflect changes in law
■ Intended to balance needs of community by:
Providing for increasing demand for wireless networks
Mitigating the impacts of future telecom facilities
L Planning Commission Hearing on 7/19/2012
Written comments received from 4 parties
og /o6 /2012
Community Development Department - Planning Division
z
site
Commission requested:
Study session
Additional outreach with telecom industry and
interested parties
Stakeholder meeting conducted on 7/25/2012
og /o6 /2012
Community Development Department - Planning Division
3
•
Ah
204MITOMMEM
M
i. Discretionary Permit Process
Comment
• Provide for administrative approval
• Limit discretionary process
■ Response /Recommendation
Administrative approval of screened or stealth
facilities without public notice
• Zoning Administrator review for most facilities
• Planning Commission review for highly visible
facilities located near residences
og /o6 /2012 Community Development Department - Planning Division
ZF
•
Ah
k' M More
2. Legal Nonconforming Facilities
Comment
-"'A
Will nonconforming facilities be required to change or
be eliminated
Response /Recommendation
■ Existing, lawfully established facilities may continue
• New or modified facilities must comply
• Revise draft ordinance to enhance clarity
og /o6 /zoiz
Community Development Department - Planning Division
5
•
Ah
3. Definitions
Comment
Confusing
6, • •
- Response /Recommendation
Clarify definitions
Base station, public right -of -way, support equipment,
wireless tower, and listed antenna support structures
og /o6 /2012
Community Development Department - Planning Division
6
•
Ah
/•
4. Technology requirements
Comment
"...the most efficient, diminutive and least
obtrusive technology..."
■ Response /Recommendation
-"'A
Revise draft ordinance to remove "least efficient"
or "diminutive "and stress "least obtrusive"
og /o6 /2012
Community Development Department - Planning Division
i
•
Ah
k' M More
5. Location Preferences
Comment
Proposed classification system is confusing
Response /Recommendation
Clarify classification system
Eliminate "Collocation" class
Provide "Public Right -of -Way" class
og /o6 /2012
Community Development Department - Planning Division
•
Ah
a 204mrsTerNMEM
6. Prohibited Locations
Comment
Industry wants access to all zones, including
residential
Response /Recommendation
-�'A
Access to multi - family zones improved
Access to single- and two - family zone areas provided
within the public right -of -way (PROW)
No change to draft ordinance recommended
og /o6 /2012
Community Development Department - Planning Division
9
•
Ah
a 204mrsTerNMEM
7. Installations in the Public Right -of -Way
Comment
Draft ordinance too limiting on use of PROW
Underground vaults for support equipment infeasible
Response /Recommendation
City controls time, place and manner of use of the PROW —
proposed process is reasonable
Underground vaults feasible, Title 13 does provide for
flexibility
Revise draft ordinance to eliminate conflicting or
duplication
og /o6 /2oiz Community Development Department - Planning Division yo
•
Ah
k' M /•re
8. General Development and Design Standards
1. Comment
Screening is burdensome and is unfair treatment
considering no screening of Edison facilities
Response /Recommendation
Screening of telecom facilities is supported by
applicable law and case law
No change to draft ordinance recommended
og /o6 /2012
Community Development Department - Planning Division
11
•
9. Height
Is
Comment
MTITST"M ME
•
-"'A
Taller facilities requested & Variance process difficult
Response /Recommendation
Draft ordinance treats telecom facilities similar to
other structures
Clarify provisions but no change to proposed height
standards
og /o6 /2012
Community Development Department - Planning Division
tz
•
Ah
k' M More
io. Setback Standards
Comment
Proposed "fall zone" setback equal to i3.o% height
is excessive and unnecessary
■ Response /Recommendation
Staff agrees, eliminate proposed additional
setback
og /o6 /2012
Community Development Department - Planning Division
•
Ah
k' M More
ii. Screening Standards
Comment
Restrictive, duplicative and flexibility needed
r Response /Recommendation
Revise draft ordinance to reflect changes in
antenna classes (Collocation & PROW)
Revise to allow exceptions when requirements are
infeasible
og /o6 /2012
Community Development Department - Planning Division
i4
•
Ah
k' M More
iz. Permit Review Procedures
1. Comment
Review procedures burdensome
Elimination of application submittal requirements
■ Response /Recommendation
Provide administrative approval for Class :L
(screened /stealth)
Submittal requirements specified by CD Director
within application consistent with Zoning Code
og /o6 /zoiz
Community Development Department - Planning Division
•
Ah
k' M /•re
13. License Agreements for City -Owned Property
Comment
Streamline entitlement process
Fee could violate State law
- Response /Recommendation
Concurrent processing should be allowed
Established fee is within City's right to regulate time,
place and manner of use of PROW
og /o6 /2012
Community Development Department - Planning Division
6
•
Ah
k' r More
14. Modification of existing facilities
Comment
..,:
Draft complicated
so% should be threshold for administrative approval
Response /Recommendation
Simplify draft
5% threshold based upon community sensitivity to
height & desire to protect views
og /o6 /2012
Community Development Department - Planning Division
1
•
Ah
k' M More
15. Radio Frequency (RF) Emissions Reporting
Comment
FCC oversight sufficient, ordinance requirement is
burdensome
■ Response /Recommendation
Verification cannot be burdensome
No change to requirement
og /o6 /2012
Community Development Department - Planning Division
I
Provide administrative approval for Class i
facilities (screened /stealth)
Eliminate "co- location" antenna class
Create "public right -of -way" antenna class
■ Reduce /eliminate complicating definitions
og /o6 /2012
Community Development Department - Planning Division
9
■ Limit Planning Commission review to most
visually obtrusive proposals
■ Eliminate "Fall Zone" setback proposal
■ Revise draft to simplify and clarify
og /o6 /2012
Community Development Department - Planning Division
a
Staff to revise ordinance
■ Provide revised draft in advance of meetings
or hearings
Additional stakeholder meeting
■ Return to Planning Commission —date TBD
07/13 /2012
Community Development Department - Planning Division
1�i
ext
Steps
Staff to revise ordinance
■ Provide revised draft in advance of meetings
or hearings
Additional stakeholder meeting
■ Return to Planning Commission —date TBD
07/13 /2012
Community Development Department - Planning Division
1�i
1
For more information contact:
James Campbell, Principal Planner
949-644 -3210
jcampbell@newportbeachca.gov
www.newportbeachca.gov
Item 0.1 a: Additional Materials Received
Study Session - Planning Commission 9 -6 -12
PA2012 -057
Comments for September 6, 2012 Planning Commission
Study Session regarding Wireless Ordinance
The following comments are on the staff regarding the Wireless Telecommunications Facilities Ordinance
(PA2012 -057) / Code Amendment No. 2012 -004 as presented to the Newport Beach Planning
Commission as Agenda Item 1 at its September 6, 2012 meeting.
The comments were prepared by Jim Mosher ( iimmosher(a)vahoo.com ), 2210 Private Road, Newport
Beach 92660 (949- 548 -6229) , and are a mix of what may seem major and minor points.
Additional Background Information
In addition to my previous comments reproduced on pages 38 -48 of the staff report, I would like
the Planning Commission to be aware of the following e-mail message sent, at her request, to
Janet Johnson Brown (and copied to Jim Campbell) on August 3, following the July 25, 2012
"stakeholders" meeting described near the bottom of page 1 of the staff report:
Janet (& Jim),
Sorry to be so slow in getting this to you, but to follow up on our brief conversation
after the July 25 wireless "stakeholders" meeting, with reference to the new Wireless
Communication Facilities regulations in the City of Oceanside Local Coastal Program
considered by the California Coastal Commission as Item 8a at their July 11, 2012
meeting (see complete text in the CCC staff report: W8a- 7- 2012.pdf, pages 23 -42):
htto: / /documents.coastal.ca.gov /reports /2012/7/wBa- 7- 2012.r)df
the features I saw that seemed particularly innovative and useful to CNB included:
1. Approval of telecom permit requires findings of a verifiable deficiency in existing
coverage and that the means proposed to correct the deficiency are the least
intrusive possible (Section 3907.A). This by now time - honored standard is, I think,
no longer as clearly articulated in our own proposed code. Note also that although
the regulation of applications to use the Oceanside public rights -of -way of way are
rather vague (Section 3910.A), each encroachment permit ultimately requires the
same findings to be made by the City Council (Section 3910.6).
2. To accommodate changing technology, Oceanside approvals are limited to 10
years with a possibility of three 2 -year administrative extensions (maximum of 16
years total) after which re- application is required (Section 3915.6).
3. As with the CNB proposal, upon adoption of the new code, existing facilities that
would not comply with the new standards become legally non - conforming, but in
Oceanside they are NOT allowed to continue indefinitely simply by staying in
compliance with the original code. Anything other than routine maintenance of
existing operational equipment triggers a re- evaluation of the facility under the new
code (Section 3916). A fairly complete re- evaluation can also be triggered, at the
September 6, 2012 Wireless Ordinance comments by Jim Mosher Page 2 of 3
planner's discretion, even when sites built under the new code are modified (Section
3917).
4. The Application Submittal Requirements in Section 3906 also seem pretty
thorough. As best I can tell the similar detailed submittal requirements in our
current CNB telecom code were inadvertently omitted from the proposal submitted to
the Planning Commission.
5. Finally, Oceanside did not seem to feel any need to single out DAS facilities for
special treatment (Section 3919).
I will try to submit more detailed comments on the current CNB proposal next week.
Yours,
Jim Mosher
Although other commitments prevented me from submitting the promised more detailed follow -
up, I continue to feel these comments remain relevant and that the Oceanside ideas could be
usefully incorporated into our proposed ordinance.
Subsequent to this, Costa Mesa introduced at its August 21, 2012 meeting (agenda item PH -2)
an ordinance regarding Wireless Facilities in the Public Right -of -Way, which was adopted just
two days ago, and also contains interesting provisions.
Comments on the Staff Report
As a Newport Beach citizen I am pleased to see that City staff has not caved in to most of the
demands presented by the industry representatives. I feel, however, that the proposed
ordinance still needs considerable more work.
Because of the extreme lateness of this submission I will just comment briefly on a few of the
specific recommendations listed on pages 2 -6 of the staff report:
Item 1 (Discretionary Permit Process): Without an extremely precise definition of what falls in
"Class 1," 1 think the suggestion to allow them to be "administratively approved without providing
notice to the public" is a very poor one. Even if the decision is "administrative" the absence of
public notice means the public has no practical ability to appeal if they have reason to believe
the administrative decision was incorrect. In my experience the Zoning Administrator is not
overburdened, and considers considerably more minor matters. Nor is it an onerous burden on
the applicant. In fact, a Zoning Administrator hearing took place simultaneously with the
Telecom Stakeholders meeting on July 25th and two matters were disposed of in a total of 5
minutes.
September 6, 2012 Wireless Ordinance comments by Jim Mosher Page 3 of 3
Item 2. (Legal Nonconforming facilities): I find the recommendation hard to follow, but I think
changing technology means that all wireless permits should be subject to sunsetting provisions
(as in the Oceanside and Costa Mesa codes referenced above), when legally non - conforming
facilities are upgraded they should be required to come into conformance with the current
codes, not the local regulations in effect at the time of their initial approval (as I believe the
proposed code reads).
Item 6. (Location Preferences, Prohibited Locations): I may be missing something, but I
don't see the "Planning Commission review at public hearings for exceptions to location
standards' that the report suggests is in the proposed code.
Item 12. (Permit Review Procedures): Again, I do not think any telecom applications should be
exempted from public notice.
Item 13. (License Agreements for City -Owned Property): I feel it is very important that the
public have a voice in the use of public property. Although somewhat outside the scope of the
Study Session, City Charter Section 421 currently ensures that by restricting the authority to
bind the City to contracts to the City Council — which in turn can act only at a publicly noticed
meeting. A proposed "update" to the Charter on this November's ballot would overturn that
longstanding protection by giving the Council the power to allow City staff to decide what public
property it is appropriate to lease out for private commercial use, presumably without any public
notice or input. I view that as a very bad change.
Additional Comment
I am very disappointed that staff has not seen fit to retain the restrictions and discretion found in
our existing Wireless Code regarding the siting of telecom facilities that impact private views, or
otherwise detrimentally impact private property (please see page 3 of my earlier comments as
reproduced on page 40 of the 79 page Study Session staff report). I hope the Commission will
ask for those provisions to be kept.