HomeMy WebLinkAboutOrdinance No. 2018-06URGENCY ORDINANCE NO. 2018-06
AN URGENCY ORDINANCE OF CITY COUNCIL OF THE CITY OF
AZUSA, CALIFORNIA, ADDING ARTICLE XII TO CHAPTER 62 OF
THE AZUSA MUNICIPAL CODE, IMPOSING REGULATIONS ON
"WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY".
WHEREAS, the City of Azusa, California ("City") is a municipal corporation, duly
organized under the California Constitution and laws of the State of California;
WHEREAS, by virtue of the police powers delegated to it by the California Constitution,
the City has the authority to enact laws which promote the public health, safety, and general
welfare of its citizens, including public rights-of-way;
WHEREAS, the Federal Communications Commission ("FCC") recently issued new
rules and regulations ("FCC Order"), which will become effective on January 14, 2019,
regarding wireless telecommunications facilities that substantially alter the landscape of local
authority to regulate such facilities;
WHEREAS, in light of the FCC Order, the City deems it to be necessary and
appropriate to provide for certain standards and regulations relating to the location, placement,
design, construction and maintenance of telecommunications towers, antennas, and other
structures within the City's public rights-of-way, and providing for the enforcement of said
standards and regulations, consistent with federal and state law limitations on that authority; and
WHEREAS, considering the fast -approaching effective date of the FCC Order, the City
deems it necessary and appropriate to enact regulations for wireless telecommunications
facilities in the public rights-of-way by urgency ordinance under Cal. Gov. Code Section
36937(b) because the matters herein concern "the immediate preservation of the public peace,
health or safety" of the City's citizens.
NOW, THEREFORE, BE IT ENACTED AND ORDAINED by the City Council of
the City of Azusa:
SECTION 1: The foregoing Recitals are adopted as findings of the City Council as
though set forth in fully within the body of this ordinance.
SECTION 2: The Chapter 62 for the City ("Code") shall be amended to add a new
Article XII, entitled "Wireless Facilities in Public Rights -Of -Way" as follows:
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ARTICLE XII
WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY
Section 62-501. Purpose.
(a) The purpose of this Article is to establish a process for managing, and
uniform standards for acting upon, requests for the placement of wireless facilities within
the public rights-of-way of the City consistent with the City's obligation to promote the
public health, safety, and welfare, to manage the public rights-of-way, and to ensure that
the public is not incommoded by the use of the public rights-of-way for the placement of
wireless facilities. The City recognizes the importance of wireless facilities to provide
high-quality communications service to the residents and businesses within the City, and
the City also recognizes its obligation to comply with applicable Federal and State law
regarding the placement of personal wireless services facilities in its public rights-of-way.
This ordinance shall be interpreted consistent with those provisions.
Section 62-502. Definitions. The terms used in this Article shall have the
following meanings:
Application: A formal request, including all required and requested
documentation and information, submitted by an applicant to the City for a wireless facilities
encroachment permit.
Applicant: A person filing an application for placement or modification of a
wireless facility in the public right-of-way.
Base Station: shall have the meaning as set forth in 47 C.F.R. Section
1.40001(b)(1), or any successor provision.
Eligible Facilities Request: shall have the meaning as set forth in 47 C.F.R.
Section 1.40001(b)(3), or any successor provision.
FCC: The Federal Communications Commission or its lawful successor.
Municipal Infrastructure: City -owned or controlled property structures, objects,
and equipment in the ROW, including, but not limited to, street lights, traffic control
structures, banners, street furniture, bus stops, billboards, or other poles, lighting fixtures, or
electroliers located within the ROW.
Permittee: any person or entity granted a wireless facilities encroachment permit
pursuant to this Article.
Personal Wireless Services: shall have the same meaning as set forth in 47 U.S.C.
Section 332(c)(7)(C)(i).
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Personal Wireless Services Facility: means a wireless facility used for the
provision of personal wireless services.
Wireless Facility, or Facility: The transmitters, antenna structures and other types
of installations used for the provision of wireless services at a fixed location, including,
without limitation, any associated tower(s), support structure(s), and base station(s).
Public Right -of -Way, or ROW: shall have the same meaning as in Chapter 62 but
shall also include any portion of any road or public way which the City has the responsibility
to maintain or manage.
Small Cell Facility: shall have the same meaning as "small wireless facility" in 47
C.F.R. 1.6002(1), or any successor provision (which is a personal wireless services facility
that meets the following conditions that, solely for convenience, have been set forth below):
(1) The facility—
(i) is mounted on a structure 50 feet or less in height, including antennas, as
defined in 47 C.F.R. Section 1.1320(d), or
(ii) are mounted on structures no more than 10 percent taller than other
adjacent structures, or
(iii) do not extend existing structures on which they are located to a height of
more than 50 feet or by more than 10 percent, whichever is greater;
(2) Each antenna associated with the deployment, excluding associated antenna
equipment (as defined in the definition of antenna in 47 C.F.R. Section 1.1320(d)), is no
more than three cubic feet in volume;
(3) All other wireless equipment associated with the structure, including the wireless
equipment associated with the antenna and any pre-existing associated equipment on the
structure, is no more than 28 cubic feet in volume;
(4) The facility does not require antenna structure registration under 47 C.F.R. Part
17;
(5) The facility is not located on Tribal lands, as defined under 36 C.F.R. Section
800.16(x); and
(6) The facility does not result in human exposure to radiofrequency radiation in
excess of the applicable safety standards specified in 47 C.F.R. Section 1.1307(b).
Support Structure: Any structure capable of supporting a base station.
Tower: Any structure built for the sole or primary purpose of supporting any FCC -
licensed or authorized antennas and their associated facilities, including structures that are
constructed for personal wireless services including, but not limited to, private, broadcast,
and public safety services, as well as unlicensed wireless services and fixed wireless services
such as microwave backhaul, and the associated site. This definition does not include utility
poles.
Underground areas: Those areas where there are no electrical facilities or facilities
of the incumbent local exchange carrier in the right of way; or where the wires associated
with the same are or are required to be located underground; or where the same are scheduled
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are scheduled to be converted from overhead to underground. Electrical facilities are
distribution facilities owned by an electric utility and do not include transmission facilities
used or intended to be used to transmit electricity at nominal voltages in excess of 35,000
volts.
Utility Pole: A structure in the ROW designed to support electric, telephone and
similar utility lines. A tower is not a utility pole.
Wireless Facilities Encroachment Permit: A permit issued pursuant to this
Article authorizing the placement or modification of a wireless facility of a design specified
in the permit at a particular location within the ROW; and the modification of any existing
support structure to which the wireless facility is proposed to be attached.
Wireless Service Provider: An entity that provides personal wireless services to
end users.
Wireless Infrastructure Provider: A person that owns, controls, operates or
manages a wireless facility or portion thereof within the ROW.
Wireless Regulations: Those regulations adopted pursuant to Section 5 and
implementing the provisions of this Article.
Section 62-503. Scope.
(a) In general. There shall be a type of encroachment permit entitled a "wireless
encroachment permit," which shall be subject to all of the same requirements as an
encroachment permit would under Chapter 62 in addition to all of the requirements of this
Article. Unless exempted, every person who desires to place a wireless facility in the public
rights-of-way or modify an existing wireless facility in the public rights-of-way must obtain a
wireless encroachment permit authorizing the placement or modification in accordance with
this Article. Except for small cell facilities, facilities qualifying as eligible facilities requests,
or any other type of facility expressly allowed in the public right-of-way by state or federal
law, no other wireless facilities shall be permitted pursuant to this Article.
(b) Exemptions. This Article does not apply to:
(1) The placement or modification of facilities by the City or by any
other agency of the state solely for public safety purposes.
(2) Installation of a "cell on wheels," "cell on truck" or a similar
structure for a temporary period in connection with an emergency or event, but no
longer than required for the emergency or event, provided that installation does not
involve excavation, movement, or removal of existing facilities.
(c) Other applicable requirements. In addition to the wireless encroachment
permit required herein, the placement of a wireless facility in the ROW requires the persons
who will own or control those facilities to obtain all permits required by applicable law, and
to comply with applicable law, including, but not limited, applicable law governing radio
frequency (RF) emissions.
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(d) Pre-existing Facilities in the ROW. Any wireless facility already existing in the
ROW as of the date of this Article's adoption shall remain subject to the provisions of the
City Code in effect prior to this Article, unless and until an extension of such facility's then -
existing permit is granted, at which time the provisions of this Article shall apply in full force
going forward as to such facility. The review of any request for a renewal of a permit for
such pre-existing facilities shall be conducted pursuant to this Article, rather than the
portion(s) of the City Code that it was previously reviewed under.
(e) Public use. Except as otherwise provided by California law, any use of the public
right-of-way authorized pursuant to this Article will be subordinate to the City's use and use
by the public.
Section 62-504. Administration.
(a) Authority. The Economic and Community Development Department or its
designee is responsible for administering this Article. As part of the administration of this
Article, the Director of the Economic and Community Development Department may:
(1) Interpret the provisions of this Article;
(2) Develop and implement standards governing the placement and
modification of wireless facilities consistent with the requirements of this Article,
including regulations governing collocation and resolution of conflicting
applications for placement of wireless facilities;
(3) Develop and implement acceptable designs and development
standards for wireless facilities in the public rights-of-way, taking into account the
zoning districts bounding the public rights-of-way;
(4) Develop forms and procedures for submission of applications for
placement or modification of wireless facilities, and proposed changes to any
support structure consistent with this Article;
(5) Determine the amount of and collect, as a condition of the
completeness of any application, any fee established by this Article;
(6) Establish deadlines for submission of information related to an
application, and extend or shorten deadlines where appropriate and consistent with
state and federal laws and regulations;
(7) Issue any notices of incompleteness, requests for information, or
conduct or commission such studies as may be required to determine whether a
permit should be issued;
(8) Require, as part of, and as a condition of completeness of any
application, notice to members of the public that may be affected by the placement
or modification of the wireless facility and proposed changes to any support
structure;
(9) Subject to appeal as provided herein, determine whether to
approve, approve subject to conditions, or deny an application; and
(10) Take such other steps as may be required to timely act upon
applications for placement of wireless facilities, including issuing written decisions
and entering into agreements to mutually extend the time for action on an
application.
(b) Appeal.
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(1) Any person adversely affected by the decision of the Director
pursuant to this Article may appeal the Director's decision to the City Council,
which may decide the issues de novo, and whose written decision will be the final
decision of the City. An appeal by a wireless infrastructure provider must be taken
jointly with the wireless service provider that intends to use the personal wireless
services facility.
(2) Where the Director grants an application based on a finding that
denial would result in a prohibition or effective prohibition under applicable federal
law, the decision shall be automatically appealed to the City Council. All appeals
must be filed within two (2) business days of the written decision of the Director,
unless the Director extends the time therefore. An extension may not be granted
where extension would result in approval of the application by operation of law.
(3) Any appeal shall be conducted so that a timely written decision
may be issued in accordance with applicable law.
Section 62-505. General Standards for Wireless Facilities in the Public Rights -
of -Way.
(a) Generally. Wireless facilities in the ROW shall meet the minimum requirements
set forth in this ordinance and the wireless regulations, in addition to the requirements of any
other applicable law.
(b) Regulations. The wireless regulations and decisions on applications for
placement of wireless facilities in the ROW shall, at a minimum, ensure that the requirements
of this section are satisfied, unless it is determined that applicant has established that denial
of an application would, within the meaning of federal law, prohibit or effectively prohibit
the provision of personal wireless services, or otherwise violate applicable laws or
regulations. If that determination is made, the requirements of this Article may be waived,
but only to the minimum extent required to avoid the prohibition or violation.
(c) Minimum Design Standards. Wireless facilities shall be installed and modified
in a manner that minimizes risks to public safety, avoids placement of aboveground facilities
in underground areas, avoids installation of new support structures or equipment cabinets in
the public rights-of-way, and otherwise maintains the integrity and character of the
neighborhoods and corridors in which the facilities are located; ensures that installations are
subject to periodic review to minimize the intrusion on the rights of way; and ensures that the
City bears no risk or liability as a result of the installations, and that such use does not
inconvenience the public, interfere with the primary uses of the rights-of-way, or hinder the
ability of the City or other government agencies to improve, modify, relocate, abandon, or
vacate the public rights of way or any portion thereof, or to cause the improvement,
modification, relocation, vacation, or abandonment of facilities in the rights of way. The
Director shall publish such design standards in a publicly -available place, including, without
limitation, the City's website.
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Section 62-506. Applications.
(a) Submission. Unless the wireless regulations provide otherwise, applicant shall
submit a paper copy and an electronic copy of any application, amendments, or supplements
to an application, or responses to requests for information regarding an application to:
Economic and Community Development Department, at City Hall.
(b) Pre -application meeting. Prior to filing an application for a wireless
encroachment permit, an applicant is encouraged to schedule a pre -application meeting with
the Economic and Community Development Department to discuss the proposed facility, the
requirements of this Article, and any potential impacts of the proposed facility.
(c) Content. An applicant shall submit an application on the form approved by the
Economic and Community Development Department which may be updated from time -to -
time, but in any event shall require the submission of all required fee(s), documents,
information, and any other materials necessary to allow the Economic and Community
Development Department to make required findings and ensure that the proposed facility will
comply with applicable federal and state law, the City Code, and will not endanger the public
health, safety, or welfare. If no form has been approved, applications must contain all
information necessary to show that applicant is entitled to the wireless encroachment permit
requested, and must specify whether the applicant believes state or federal law requires
action on the application within a specified time period.
(1) Any information required pursuant to the wireless regulations;
(2) The name of the applicant, its telephone number and contact
information, and if the applicant is a wireless infrastructure provider, the name and
contact information for the wireless service provider that will be using the personal
wireless services facility;
(3) A complete description of the proposed wireless facility and the
work that will be required to install or modify it, including, but not limited to, detail
regarding proposed excavations, if any; detailed site plans showing the location of
the wireless facility, and specifications for each element of the wireless facility,
clearly describing the site and all structures and facilities at the site before and after
installation or modification; and describing the distance to the nearest residential
dwelling unit and any historical structure within 500 feet of the facility. Before and
after 360 degree photosimulations must be provided.
(4) Documentation sufficient to show that the proposed facility will
comply with generally -applicable health and safety provisions of the City Code and
the FCC's radio frequency emissions standards.
(5) A copy of the lease or other agreement between the applicant and
the owner of the property to which the proposed facility will be attached.
(6) If the application is for a small cell facility, the application shall
state as such and shall explain why the proposed facility meets the definition of
small cell facility in this Article.
(7) If the application is for an eligible facilities request, the application
shall state as such and must contain information sufficient to show that the
application qualifies as an eligible facilities request, which information must show
that there is an existing wireless facility that was approved by the City. Before and
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after 360 degree photosimulations must be provided, as well as documentation
sufficient to show that the proposed facility will comply with generally -applicable
health and safety provisions of the City Code and the FCC's radio frequency
emissions standards.
(8) Proof that notice has been mailed to owners of all property owners,
and the resident manager for any multi -family dwelling unit that includes ten (10)
or more units, within 300 feet of the proposed personal wireless services facility.
(9) If applicant contends that denial of the application would prohibit
or effectively prohibit the provision of service in violation of federal law, or
otherwise violate applicable law, the application must provide all information on
which the applicant relies on in support of that claim. Applicants are not permitted
to supplement this showing if doing so would prevent City from complying with
any deadline for action on an application.
(10) The electronic version of an application must be in a standard
format that can be easily uploaded on a web page for review by the public.
(11) Any required fees.
(d) Fees. Application fee(s) shall be required to be submitted with any application
for a wireless encroachment permit. The City Council is hereby authorized to determine, or
cause to be determined, the amount, type, and other terms of such fee(s) from time to time by
means of resolution. Notwithstanding the foregoing, no application fee shall be refundable,
in whole or in part, to an applicant for a wireless encroachment permit unless paid as a
refundable deposit.
(e)Waivers. Requests for waivers from any requirement of this section shall be made
in writing to the Economic and Community Development Department or his or her designee.
The Economic and Community Development Department may grant or deny a request for a
waiver pursuant to this subsection. The Economic and Community Development Department
may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of a
waiver, the City will be provided all information necessary to understand the nature of the
construction or other activity to be conducted pursuant to the permit sought. All waivers
approved pursuant to this subsection shall be (1) granted only on a case-by-case basis, and
(2) narrowly -tailored to minimize deviation from the requirements of the City Code.
(f) Rejection for Incompleteness. For personal wireless facilities and eligible
facilities requests, applications will be processed, and notices of incompleteness provided, in
conformity with state, local, and federal law. If such an application is incomplete, it may be
rejected by the Economic and Community Development Department by notifying the
applicant and specifying the material omitted from the application.
Section 62-507. Findings; Decisions; Consultants.
(a)Findings Required for Approval.
(1) Except for eligible facilities requests, the Economic and
Community Development Department or City Council, as the case may be, shall
approve an application if, on the basis of the application and other materials or
evidence provided in review thereof, it finds the following:
(i) The facility is not detrimental to the public health, safety, and
welfare;
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(ii) The facility complies with this Article and all applicable design
and development standards; and
(iii) The facility meets applicable requirements and standards of state
and federal law.
(2) For eligible facilities requests, the Economic and Community
Development Department or City Council, as the case may be, shall approve an
application if, on the basis of the application and other materials or evidence
provided in review thereof, it finds the following:
(i) That the application qualifies as an eligible facilities request; and
(ii) That the proposed facility will comply with all generally -
applicable laws.
(b) Decisions. Decisions on an application by the Economic and Community
Development Department shall be in writing and include the reasons for the decision.
(c) Independent Consultants. The Economic and Community Development
Department or City Council, as the case may be, is authorized, in its discretion, to select and
retain independent consultant(s) with expertise in telecommunications in connection with the
review of any application under this Article. Such independent consultant review may be
retained on any issue that involves specialized or expert knowledge in connection with an
application, including, but not limited to, application completeness or accuracy, structural
engineering analysis, or compliance with FCC radio frequency emissions standards.
Section 62-508. Conditions of Approval.
(a) Generally. In addition to any supplemental conditions imposed by the Economic
and Community Development Department or City Council, as the case may be, all permits
granted pursuant to this Article shall be subject to the following conditions, unless modified
by the approving authority:
(1) Code Compliance. The permittee shall at all times maintain
compliance with all applicable federal, state and local laws, regulations and other
rules, including, without limitation, those applying to use of public rights-of-way.
(2) Permit Duration. A wireless encroachment permit shall be valid
for a period of ten (10) years, unless pursuant to another provision of the Code or
these conditions, it expires sooner or is terminated. At the end of ten (10) years
from the date of issuance, such Permit shall automatically expire, unless an
extension or renewal has been granted. A person holding a wireless encroachment
permit must either (1) remove the facility within thirty (30) days following the
permit's expiration (provided that removal of support structure owned by City, a
utility, or another entity authorized to maintain a support structure in the right of
way need not be removed, but must be restored to its prior condition, except as
specifically permitted by the City); or (2) at least ninety (90) days prior to
expiration, submit an application to renew the permit, which application must,
among all other requirements, demonstrate that the impact of the wireless facility
cannot be reduced. The wireless facility must remain in place until it is acted upon
by the City and all appeals from the City's decision exhausted.
(3) Timing of Installation. The installation and construction
authorized by a wireless encroachment permit shall begin within one (1) year after
its approval, or it will expire without further action by the City. The installation and
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construction authorized by a wireless encroachment permit shall conclude,
including any necessary post -installation repairs and/or restoration to the ROW,
within thirty (30) days following the day construction commenced.
(4) Commencement of Operations. The operation of the approved
facility shall commence no later than one (1) month after the completion of
installation, or the wireless encroachment permit will expire without further action
by the City.
(5) As -Built Drawings. The Permittee shall submit an as -built drawing
within ninety (90) days after installation of the facility.
(6) Inspections; Emergencies. The City or its designee may enter onto
the facility area to inspect the facility upon 48 hours prior notice to the permittee.
The permittee shall cooperate with all inspections and may be present for any
inspection of its facility by the City. The City reserves the right to enter or direct its
designee to enter the facility and support, repair, disable, or remove any elements of
the facility in emergencies or when the facility threatens imminent harm to persons
or property. The city shall make an effort to contact the permittee prior to disabling
or removing any facility elements, but in any case shall notify permittee within 24
hours of doing so.
(7) Contact. The permittee shall at all times maintain accurate contact
information for all parties responsible for the facility, which shall include a phone
number, street mailing address and email address for at least one natural person.
(8) Insurance. Permittee shall obtain and maintain throughout the
term of the permit commercial general liability insurance with a limit of
$3,000,000.00 per occurrence for bodily injury and property damage and
$6,000,000.00 general aggregate including premises operations, contractual
liability, personal injury, and products completed operations and/or shall comply
with other requirements by the Human Resources/Risk Management Department.
The relevant policy(ies) shall name the City, its elected/appointed officials,
commission members, officers, representatives, agents, and employees as additional
insureds. Permittee shall use its best efforts to provide thirty (30) days' prior notice
to the City of to the cancellation or material modification of any applicable
insurance policy.
(9) Indemnities. The permittee and, if applicable, the owner of the
property upon which the wireless facility is installed shall defend, indemnify and
hold harmless the City, its agents, officers, officials, and employees (i) from any
and all damages, liabilities, injuries, losses, costs, and expenses, and from any and
all claims, demands, law suits, writs of mandamus, and other actions or proceedings
brought against the city or its agents, officers, officials, or employees to challenge,
attack, seek to modify, set aside, void or annul the city's approval of the permit, and
(ii) from any and all damages, liabilities, injuries, losses, costs, and expenses, and
any and all claims, demands, law suits, or causes of action and other actions or
proceedings of any kind or form, whether for personal injury, death or property
damage, arising out of or in connection with the activities or performance of the
permittee or, if applicable, the private property owner or any of each one's agents,
employees, licensees, contractors, subcontractors, or independent contractors.. In
the event the city becomes aware of any such actions or claims the city shall
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promptly notify the permittee and, if applicable, the private property owner and
shall reasonably cooperate in the defense. The City shall have the right to approve,
which approval shall not be unreasonably withheld, the legal counsel providing the
City's defense, and the property owner and/or permittee (as applicable) shall
reimburse City for any costs and expenses directly and necessarily incurred by the
City in the course of the defense.
(10) Performance Bond. Prior to issuance of a wireless encroachment
permit, the permittee shall file with the city, and shall maintain in good standing
throughout the term of the approval, a performance bond or other surety or another
form of security for the removal of the facility in the event that the use is abandoned
or the permit expires, or is revoked, or is otherwise terminated. The security shall be
in the amount equal to 100% of the cost of physically removing the facility and all
related facilities and equipment on the site, based on the higher of two contractor's
quotes for removal that are provided by the permittee. The permittee shall
reimburse the city for staff time associated with the processing and tracking of the
bond, based on the hourly rate adopted by the city council. Reimbursement shall be
paid when the security is posted and during each administrative review.
(11) Adverse Impacts on Adjacent Properties. Permittee shall undertake
all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or
uses that may arise from the construction, operation, maintenance, modification,
and removal of the facility.
(12) Noninterference. Permittee shall not move, alter, temporarily
relocate, change, or interfere with any existing structure, improvement, or property
without the prior consent of the owner of that structure, improvement, or property.
No structure, improvement, or property owned by the City shall be moved to
accommodate a permitted activity or encroachment, unless the City determines that
such movement will not adversely affect the City or any surrounding businesses or
residents, and the Permittee pays all costs and expenses related to the relocation of
the City's structure, improvement, or property. Prior to commencement of any
work pursuant to a wireless encroachment permit, the Permittee shall provide the
City with documentation establishing to the city's satisfaction that the Permittee has
the legal right to use or interfere with any other structure, improvement, or property
within the public right-of-way or city utility easement to be affected by Permittee's
facilities.
(13) No Right, Title, or Interest. The permission granted by a wireless
encroachment permit shall not in any event constitute an easement on or an
encumbrance against the public right-of-way. No right, title, or interest (including
franchise interest) in the public right-of-way, or any part thereof, shall vest or
accrue in Permittee by reason of a wireless encroachment permit or the issuance of
any other permit or exercise of any privilege given thereby.
(14) No Possessory Interest. No possessory interest is created by a
wireless encroachment permit. However, to the extent that a possessory interest is
deemed created by a governmental entity with taxation authority, Permittee
acknowledges that City has given to Permittee notice pursuant to California
Revenue and Taxation Code Section 107.6 that the use or occupancy of any public
property pursuant to a wireless encroachment permit may create a possessory
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interest which may be subject to the payment of property taxes levied upon such
interest. Permittee shall be solely liable for, and shall pay and discharge prior to
delinquency, any and all possessory interact taxes or other taxes, fees, and
assessments levied against Permittee's right to possession, occupancy, or use of any
public property pursuant to any right of possession, occupancy, or use created by
this permit.
(15) General Maintenance. The site and the facility, including, but not
limited to, all landscaping, fencing, and related transmission equipment, must be
maintained in a neat and clean manner and in accordance with all approved plans.
All graffiti on facilities must be removed at the sole expense of the permittee within
forty eight (48) hours after notification from the City.
(16) RF Exposure Compliance. All facilities must comply with all
standards and regulations of the FCC and any other state or federal government
agency with the authority to regulate RF exposure standards. After transmitter and
antenna system optimization, but prior to unattended operations of the facility,
permittee or its representative must conduct on-site post -installation RF emissions
testing to demonstrate actual compliance with the FCC OET Bulletin 65 RF
emissions safety rules for general population/uncontrolled RF exposure in all
sectors. For this testing, the transmitter shall be operating at maximum operating
power, and the testing shall occur outwards to a distance where the RF emissions no
longer exceed the uncontrolled/general population limit.
(17) Testing. Testing of any equipment shall take place on weekdays
only, and only between the hours of 8:30 a.m. and 4:30 p.m., except that testing is
prohibited on holidays that fall on a weekday. In addition, testing is prohibited on
weekend days.
(18) Modifications. No changes shall be made to the approved plans
without review and approval in accordance with this Article.
(19) Agreement with City. If not already completed, permittee shall
enter into the appropriate agreement with the City, as determined by the City, prior
to constructing, attaching, or operating a facility on Municipal Infrastructure. This
permit is not a substitute for such agreement.
(20) Conflicts with Improvements. For all facilities located within the
ROW, the permittee shall remove or relocate, at its expense and without expense to
the city, any or all of its facilities when such removal or relocation is deemed
necessary by the city by reason of any change of grade, alignment, or width of any
right-of-way, for installation of services, water pipes, drains, storm drains, power or
signal lines, traffic control devices, right-of-way improvements, or for any other
construction, repair, or improvement to the right-of-way.
(21) Abandonment. If a facility is not operated for a continuous period
of 6 months, the wireless encroachment permit and any other permit or approval
therefor shall be deemed abandoned and terminated automatically, unless before the
end of the 6 month period (i) the Economic and Community Development
Department has determined that the facility has resumed operations, or (ii) the City
has received an application to transfer the permit to another service provider. No
later than ninety (90) days from the date the facility is determined to have ceased
operation or the permittee has notified the Economic and Community Development
Urgency Ordinance No.
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Department of its intent to vacate the site, the permittee shall remove all equipment
and improvements associated with the use and shall restore the site to its original
condition to the satisfaction of the Economic and Community Development
Department. The permittee shall provide written verification of the removal of the
facilities within thirty (30) days of the date the removal is completed. If the facility
is not removed within thirty (30) days after the permit has been discontinued
pursuant to this subsection, the site shall be deemed to be a nuisance, and the City
may cause the facility to be removed at permittee's expense or by calling any bond
or other financial assurance to pay for removal. If there are two (2) or more users
of a single facility or support structure, then this provision shall apply to the specific
elements or parts thereof that were abandoned, but will not be effective for the
entirety thereof until all users cease use thereof.
(22) Encourage Co -location. Where the facility site is capable of
accommodating a co -located facility upon the same site in a manner consistent with
the permit conditions for the existing facility, the owner and operator of the existing
facility shall allow co -location of third party facilities, provided the parties can
mutually agree upon reasonable terms and conditions.
(23) Records. The permittee must maintain complete and accurate
copies of all permits and other regulatory approvals issued in connection with
the facility, which includes without limitation this approval, the approved plans and
photo simulations incorporated into this approval, all conditions associated with this
approval and any ministerial permits or approvals issued in connection with this
approval. In the event that the permittee does not maintain such records as required
in this condition or fails to produce true and complete copies of such records within
a reasonable time after a written request from the city, any ambiguities or
uncertainties that would be resolved through an inspection of the missing records
will be construed against the permittee.
(24) Attorney's Fees. In the event the City determines that it is
necessary to take legal action to enforce any of these conditions, or to revoke a
permit, and such legal action is taken, the Permittee shall be required to pay any and
all costs of such legal action, including reasonable attorney's fees, incurred by the
City, even if the matter is not prosecuted to a final judgment or is amicably
resolved, unless the City should otherwise agree with Permittee to waive said fees
or any part thereof. The foregoing shall not apply if the Permittee prevails in the
enforcement proceeding.
(b) Eligible Facilities Requests. In addition to the conditions provided in Section
9(a) of this Article and any supplemental conditions imposed by the Economic and
Community Development Department or City Council, as the case may be, all permits for an
eligible facility requests granted pursuant to this Article shall be subject to the following
additional conditions, unless modified by the approving authority:
(1) Permit subject to conditions of underlying permit. Any permit
granted in response to an application qualifying as an eligible facilities request shall
be subject to the terms and conditions of the underlying permit.
(2) No permit term extension. The city's grant or grant by operation of
law of an eligible facilities request permit constitutes a federally -mandated
modification to the underlying permit or approval for the subject tower or base
Urgency Ordinance No.
Page 14 of 16
station. Notwithstanding any permit duration established in another permit
condition, the city's grant or grant by operation of law of a eligible facilities request
permit will not extend the permit term for the underlying permit or any other
underlying regulatory approval, and its term shall be coterminous with the
underlying permit or other regulatory approval for the subject tower or base station.
(3) No waiver of standing. The city's grant or grant by operation of
law of an eligible facilities request does not waive, and shall not be construed to
waive, any standing by the city to challenge Section 6409(a) of the Spectrum Act,
any FCC rules that interpret Section 6409(a) of the Spectrum Act, or any
modification to Section 6409(a) of the Spectrum Act.
(c) Small Cell Facilities Requests. In addition to the conditions provided in Section
9(a) of this Article and any supplemental conditions imposed by the Economic and
Community Development Department or City Council, as the case may be, all permits for a
small cell facility granted pursuant to this Article shall be subject to the following condition,
unless modified by the approving authority:
(1) No waiver of standing. The city's grant of a permit for a small cell
facility request does not waive, and shall not be construed to waive, any standing by
the city to challenge any FCC orders or rules related to small cell facilities, or any
modification to those FCC orders or rules.
Section 62-509. Breach; Termination of Permit.
(a) For breach. A wireless encroachment permit may be revoked for failure to
comply with the conditions of the permit or applicable law. Upon revocation, the wireless
facility must be removed; provided that removal of a support structure owned by City, a
utility, or another entity authorized to maintain a support structure in the right-of-way need
not be removed, but must be restored to its prior condition, except as specifically permitted
by the City. All costs incurred by the City in connection with the revocation and removal
shall be paid by entities who own or control any part of the wireless facility.
(b) For installation without a permit. An wireless facility installed without a
wireless encroachment permit (except for those exempted by this Article) must be removed;
provided that removal of support structure owned by City, a utility, or another entity
authorized to maintain a support structure in the right of way need not be removed, but must
be restored to its prior condition, except as specifically permitted by the City. All costs
incurred by the City in connection with the revocation and removal shall be paid by entities
who own or control any part of the wireless facility.
(c) Municipal Infraction. Any violation of this Article will be subject to the same
penalties as a Violation of Administrative Provisions under Chapter 1, Section 1-13 of the
City Code.
Section 62-510. Infrastructure Controlled By City. The City, as a matter of
policy, will negotiate agreements for use of Municipal Infrastructure. The placement of wireless
facilities on those structures shall be subject to the agreement. The agreement shall specify the
compensation to the City for use of the structures. The person seeking the agreement shall
additionally reimburse the City for all costs the City incurs in connection with its review of, and
action upon the person's request for, an agreement.
Urgency Ordinance No.
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Section 62-511. Nondiscrimination. In establishing the rights, obligations and
conditions set forth in this article, it is the intent of the City to treat each applicant or public
right-of-way user in a competitively neutral and nondiscriminatory manner, to the extent
required by law, and with considerations that may be unique to the technologies, situation and
legal status of each particular applicant or request for use of the public rights-of-way.
SECTION 3: The City Manager, or his or her delegate, is directed to execute all
documents and to perform all other necessary City acts to implement effect this Ordinance.
SECTION 4: CEQA. This Ordinance is not a project within the meaning of Section
15378 of the State of California Environmental Quality Act ("CEQA") Guidelines, because it
has no potential for resulting in physical change in the environment, directly or indirectly. The
Ordinance does not authorize any specific development or installation on any specific piece of
property within the City's boundaries. Moreover, when and if an application for installation is
submitted, the City will at that time conduct preliminary review of the application in accordance
with CEQA. Alternatively, even if the Ordinance is a "project" within the meaning of State
CEQA Guidelines section 15378, the Ordinance is exempt from CEQA on multiple grounds.
First, the Ordinance is exempt CEQA because the City Council's adoption of the Ordinance is
covered by the general rule that CEQA applies only to projects which have the potential for
causing a significant effect on the environment. (State CEQA Guidelines, § 15061(b)(3)). That
is, approval of the Ordinance will not result in the actual installation of any facilities in the City.
In order to install a facility in accordance with this Ordinance, the wireless provider would have
to submit an application for installation of the wireless facility. At that time, the City will have
specific and definite information regarding the facility to review in accordance with CEQA.
And, in fact, the City will conduct preliminary review under CEQA at that time. Moreover, in
the event that the Ordinance is interpreted so as to permit installation of wireless facilities on a
particular site, the installation would be exempt from CEQA review in accordance with either
State CEQA Guidelines section 15302 (replacement or reconstruction), State CEQA Guidelines
section 15303 (new construction or conversion of small structures), and/or State CEQA
Guidelines section 15304 (minor alterations to land). The City Council, therefore, directs that a
Notice of Exemption be filed with the County Clerk of the County of Los Angeles within five
working days of the passage and adoption of the Ordinance.
SECTION 5: Severability. If any section, subsection, provision, sentence, clause,
phrase or word of this Ordinance is for any reason held to be illegal or otherwise invalid by any
court of competent jurisdiction, such invalidity shall be severable, and shall not affect or impair
any remaining section, subsection, provision, sentence, clause, phrase or word included within
this Ordinance, it being the intent of the City that the remainder of the Ordinance shall be and
shall remain in full force and effect, valid, and enforceable.
SECTION 6: In accordance with California Government Code Section 36937(b), this
ordinance shall become effective immediately upon its passage and adoption.
Urgency Ordinance No.
Page 16 of 16
PASSED, APPROVED, and ADOPTED at a regular meeting of the City Council on the
17`" day of December, 2018, by the following vote:
Jo epli R( nerd Rocha
ayc7r
ATTEST:
J e w e Cornejo, Jr
City Clerk
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )ss.
CITY OF AZUSA )
I HEREBY CERTIFY that the foregoing Urgency Ordinance No. 2018-06 was duly
introduced and adopted at a regular meeting of the City Council of the City of Azusa on the 17`h
day of December, 2018y the following vote:
AYES: COUNCILMEMBERS: CARRILLO, GONZALES, MACIAS, ALVAREZ, ROCHA
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
c
e rence Co eja
City C erk
APPROVED AS TO FORM:
Best BeA & KriegerLP
City Attorney