Loading...
2019-271 - Amending title 14 City municipal code and adopting chapter 14.01 ORDINANCE NO. 19-271 AN ORDINANCE OF THE COUNCIL OF THE CITY OF MENIFEE AMENDING TITLE 14 OF THE CITY OF MENIFEE MUNICIPAL CODE AND ADOPTING CHAPTER 14.01, ENTITLED "SMALL WIRELESS FACILITIES" WHEREAS, the Federal Communication Commission ("FCC") recently adopted its Declaratory Ruling and Third Report and Order (FCC 18-133) (the "FCC Ruling"), whereby the FCC promulgated certain regulations and restrictions on local agencies' abilities to regulated the deployment of certain small wireless facilities; and WHEREAS, pursuant to the FCC Ruling, the local agency is allowed to impose reasonable aesthetic criteria on small wireless facilities; and WHEREAS, pursuant to Article 5 of the CEQA Guidelines, the proposed project is covered by the General Rule Exemption (Section 15061(b)(3)); and WHEREAS, the City Council desires to amend Title 14 of the Municipal Code to allow the City to continue to exercise reasonable control over the deployment of small wireless facilities throughout the public right-of-way within the City. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MENIFEE HEREBY ORDAINS AS FOLLOWS: Section 1. The above recitals are true and correct and are incorporate herein. Section 2. Pursuant to Article 5 of the CEQA Guidelines, the proposed project is covered by the General Rule Exemption (Section 15061(b)(3)), as the project will have no significant effect on the environment. Section 3. Pursuant to the FCC Ruling, the City Council further finds as follows: 1. The standards and requirements of the ordinance ("Standards") are reasonable as required by the FCC Ruling. Specifically, the Standards are reasonable in that they are technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of- character deployments. 2. The Standards will treat similarly situated entities seeking to deploy small wireless facilities within the City in the same manner as required by the FCC's Ruling. 3. The Standards are objective, and will be published in advances, as required by the FCC Ruling. Section 4. Chapter 14.01, entitled "Small Wireless Facilities," is hereby added to Title 14 of the City of Menifee's Municipal Code to read in its entirety as follows: Chapter 14.01 Small Wireless Facilities Sections: 14.01.010 Applicability 14.01.020 Permits Required 14.01.030 Definitions 14.01.040 Application and Permitting Processing 14.01.050 Required Findings, Conditions, and Final Decision 14.01.060 Siting Requirements 14.01.070 Objective Aesthetic Criteria 14.01.080 General Requirements 14.01.090 Maintenance Requirements and Agreements 14.01.100 Abandoned Sites 14.01.110 Suspension and Revocation 14.01.120 Nonconforming Small Wireless Facilities 14.01.130 Enforcement 14.01.140 Preemption 14.01.010. APPLICABILITY The following procedures and standards shall apply to any applications for any permit to install a small wireless facility throughout the entirety of the City of Menifee ("City") within the public rights-of-way. No small wireless facility may be installed in such locations without complying with the requirements and procedures of this Chapter. 14.01.020. PERMITS REQUIRED A small wireless facility may be approved administratively by the City Engineer/Public Works Director or their appropriate designee through the issuance of one of each of the following: a. An Encroachment Permit pursuant to Ordinance 499 [as it may be revised from time to time]. b. A Small Wireless Facility Permit issued pursuant to this Chapter. 14.01.030. DEFINITIONS Small Wireless Facility - consistent with 47 C.F.R.§ 1.6002(1), refers to any personal wireless facilities that meet the following specific conditions: (1) The facilities— -2- (i) are mounted on structures 50 feet or less in height including their antennas, 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, 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 facilities do not require antenna structure registration under part 17 of Title 47 of the Code of Federal Regulations; (5) The facilities are not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and (6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. § 1.1307(b). Structure means a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service. Applicant means the entity applying for the small wireless facility permit, and any of its future lessees or assigns. Should the applicant later sell a small wireless facility constructed pursuant to a permit issued under this Chapter, the term applicant shall apply to that subsequent owner. Property Owner means the entity that owns the property on which the small wireless facility will be located. Where the small wireless facility will be located in the public right of way, this shall refer only to the owner of the support structure on which a small wireless facility is to be located. If the applicant is the property owner, as this term is used in this section, the applicant shall act in the role of both property owner and applicant. 14.01.040. APPLICATION AND PERMITTING PROCESSING a. An application for a small wireless facility shall be processed in accordance with this Section, and the requirements of Ordinance 499. The City shall process both the Small Wireless Facility Permit and the Encroachment Permit concurrently. All applications shall be accompanied by the required fees or the application shall not be deemed complete. -3- b. In addition to the application requirements of the appropriate permits, all of the following shall be submitted with a small wireless facility application: i. A proposed facility description including location, height of tower as measured from the ground, description of associated equipment. ii. A site plan drawn to scale by a California licensed land surveyor or civil engineer showing property lines; the location of the proposed facility; the distance of the proposed facility from property lines; adjacent roadways and rights-of-way; contours; the height of the proposed facility and the facility type; guy wires and anchors; facility dimensions; setbacks; existing structures on the underlying property; elevation drawings depicting the design of the proposed facility. iii. Where applicable, written consent and acceptance of the property owner to the property's use for the small wireless facility as well as the maintenance obligations of both the small wireless facility and the support structure, including, but not limited to those specifically described in Sections 14.01.090-110. Further, this consent and acceptance shall be binding on any future owners of the property. iv. Written consent and acceptance of the applicant to the property's use for the small wireless facility, as well as the applicant's acceptance of the maintenance obligations both the small wireless facility and the support structure, including, but not limited to, those specifically described in Section 14.01.090-0110. v. Photo simulations showing the proposed facility from all public roads and all residential developments within a one-half-mile radius of the site. vi. Provisions for removal of the wireless communication facility upon termination of the lease or abandonment of the facility which meet the requirements of section 14.01.100 hereof, and which may consist of a copy of the lease or other agreement entered into with the owner of the underlying property, or other evidence thereof deemed sufficient by the City, confirming that the facility owner, or its successors and assigns, shall remove the wireless communication facility completely upon its abandonment. vii. Completed FCC Radio Frequency Emissions Local Government Officials Guide, Appendix A. viii. If required, a geotechnical report. ix. If located within a criteria cell, a biological assessment- -4- c. The City Engineer/Public Works Director or their appropriate designee is specifically authorized to adopt other application requirements as the City Engineer/Public Works Director or their appropriate designee sees fit. The City Engineer/Public Works Director or their appropriate designee shall publish these application requirements on the City's website, and otherwise keep copies of these requirements available at City Hall. d. The City Engineer/Public Works Director or their appropriate designee is explicitly authorized at his or her discretion to employ an independent technical expert to review any submitted supplemental or technical materials or provide technical knowledge to the City. The technical expert shall be agreeable to both the City and the applicant. The applicant shall pay all the costs of said review, including any administrative costs incurred by the City. To the extent allowed by law, any proprietary information that is disclosed to the City or any expert hired shall be located in a separate private file, shall remain confidential, and shall not be disclosed to any third party. e. The applicant shall apply for an Encroachment Permit using the City's processing requirements for such a permit. The Encroachment Permit shall be processed concurrently with the Small Wireless Facility Permit. f. Where necessary, the City shall process applications for small wireless facilities in batches. However, each small wireless facility shall be supported by its own individual application. 14.01.050. REQUIRED FINDINGS, CONDITIONS, AND FINAL DECISION The City Engineer/Public Works Director or their appropriate designee may approve a Small Wireless Facility Permit if it makes the following findings: a. The proposed facility is a small wireless facility as defined by this Chapter. b. The applicant had provided a full and complete application, including having paid all necessary fees. c. The applicant has been issued an Encroachment Permit. d. The small wireless facility complies with the standards in Sections 14.01.060-090. Except as provided otherwise in this Chapter, if the City Engineer/Public Works Director or their appropriate designee cannot make any of the findings above, the Director shall deny the application, with a written explanation as to which findings could not be made. Likewise, a decision to approve the application shall also be final. Where applicable, a decision to approve a small wireless facility under this section shall be conditioned on the small wireless facility's continued compliance with the requirements -5- of this Chapter and the terms of the Encroachment Permit. As such, a copy of the Sections 14.01.060-110 shall be appended to any issued Small Wireless Facility Permit as conditions of approval on an ongoing basis. 14.01.060. SITING REQUIREMENTS Small wireless facilities shall meet the following locational and siting requirements throughout the City: a. Small wireless facilities may only be installed and maintained in the public right-of-way under this Chapter. b. Small wireless facilities shall not be located within 50 feet of the front of any residential building. c. Shall not be installed in any location where it could impede normal vehicular or pedestrian circulation, ingress to, or egress from any building, structure, or parking facility; d. All setbacks and spacing requirements shall be measured from the base of the tower or structure to the applicable property line or structure. 14.01.070. OBJECTIVE AESTHETIC CRITERIA All small wireless facilities shall be designed to blend into the surrounding environment to the greatest extent feasible. To this end all the following measures shall be implemented: a. Antennas shall be constructed of metal or other non-flammable material. b. Every component of the small wireless facility (and where the facility will be installed on a new or replacement support structure, the support structure) shall be comprised of materials that are of the same color or treated with non-reflective colors to provide concealment to match the underlying support structure as well be treated with anti-graffiti paint or coating and vines/plants. This requirement shall only apply to those portions of the small wireless facility or support structure that are visible from the outside of the structure. c. Where the small wireless facility will be located on a preexisting support structure, every component of the antenna must be within a shroud, which shall be painted to match the color of the preexisting support structure or otherwise shielded from view. Further, where the associated equipment is installed on the preexisting support structure (excluding antenna), the equipment shall be no larger than 36 inches in height, 15 inches in width and shall not extend from the pole by more than 17 inches in any direction. All conduits, conduit attachments, cables, wires and other connectors shall be placed within the pole when technically feasible, or otherwise concealed from public view by ensuring that every component of the small wireless -6- facility shall be painted to match the color of the preexisting support structure, or otherwise located entirely within the support structure, shroud or underground vault. d. Where the small wireless facility will be located on a new or replacement structure, every component of the small wireless facility shall be located within the shroud, the support structure, or underground vault. e. No part of the small wireless facility may be ground-mounted above grade, other than the support structure itself, and those improvements attached to the support structures. However, this requirement may be waived by the approval authority if the applicant demonstrates that it is technically infeasible to meet this requirement, based on clear and convincing evidence in the written record. f. Any shrouds or concealment elements required under this Chapter shall be constructed out of nonreflective materials, painted and/or textured to match the existing support structure or painted to blend with their surroundings. Paint shall be reviewed and shown on the approved plans and specifications. g. A maximum of one antenna shroud per pole is allowed (excluding any shrouds or concealment elements used to cover any other equipment on the support structure otherwise allowed by this Chapter). h. The diameter of the small wireless facility and support structure, including any concealment elements, shall not extend from the pole by more than 17 inches in any direction. i. Small wireless facilities, and their support structure, shall insure that sufficient anti-climbing measures have been incorporated into the facility and support structure, as needed to reduce potential for trespass and injury. j. All small wireless facilities, shall be unlit except for a manually-operated or motion-detector controlled light above the equipment shed door shall be kept off except when personnel are actually present at night. This requirement is not intended to address interior structure lighting, or to otherwise impact any ancillary uses on the support structure, i.e. streetlights. k. Except as otherwise required by law, all signage colors must be consistent with the color of the structure and shall be located a maximum of two feet below the proposed antenna shroud. L Any pole-mounted equipment shall be placed at least eight feet above sidewalks or 16 feet above streets on the street side of the pole and shall not obstruct line of sight to any intersection, signage, traffic control devices or other directional markings. -7- m. The height of a support structure that includes pole-mounted equipment shall not exceed more than five feet above the height of the average support structure in the area, as determined by averaging the heights of the ten closest pieces of vertical infrastructure that are taller than 15 feet. n. The small wireless facility must be high quality, safe, fire-resistant, modern in design, and attractive in appearance, all as approved by the city. o. Any proposed small wireless facility shall not be permitted upon any decorative poles. 14.01.080. GENERAL REQUIREMENTS All small wireless facilities shall meet the following general requirements and standards: a. Meet all the requirements established by the other Chapters of the Municipal Code that are not in conflict with the requirements contained in this Chapter, including the City's noise ordinance; b. Comply with all applicable FCC rules, regulations, and standards; c. Comply with the Uniform Building Code, National Electric Code, Uniform Plumbing Code, Uniform Mechanical Code, and Uniform Fire Code, where applicable; d. Maintain applicable easements or similar restrictions on the subject property; 14.01.090. MAINTENANCE REQUIREMENTS AND AGREEMENTS In addition to the requirements of Sections 14.01.060-080, an applicant for a small wireless facility and the property owner must agree to the following requirements and standards, and the applicant must provide written acceptance of these obligations as a part of its application: a. The applicant shall maintain the small wireless facility and the associated support structure on an ongoing basis to keep in a well-maintained and kempt appearance. By way of example, the applicant shall be responsible for the removal of any graffiti, debris, and any other repairs to the small wireless facility within 24 hours after having received written notice from the City. Should the applicant fail to meet this requirement, the City shall have the right, to enter the property on which the small wireless facility is located to inspect, and, as necessary, remove debris and graffiti, and otherwise repair the support structure and/or small wireless facility to remedy any such issue. The applicant shall agree in writing to such a maintenance requirement, and the City's rights herein, and shall also specifically consent to the City's right to reimbursement for any costs associated with such a maintenance action, and to the City's ability to place a lien on the property -8- or facility, or place a lien on the tax roll of the property for the repayment of such costs, plus interest, without any further notice hereof. b. Where the small wireless facility will be installed on property not owned by applicant, and the applicant will operate its facility as a lessee (or other similar entity), the property owner shall also agree to perform maintenance as required by Section 14.01.090(a), above to the extent the applicant fails to do so. Should the property owner and applicant fail to meet this maintenance obligation, the City shall have the right to enter the property on which the small wireless facility is located to inspect, and, as necessary, remove debris and graffiti, and otherwise repair the support structure and/or small wireless facility to remedy any such issue. The property owner shall agree in writing to such a maintenance requirement, and the City's rights herein, and shall also specifically consent to the City's right to reimbursement for any costs associated with such a maintenance action, and to the City's ability to place a lien on the property or facility, or place a lien on the tax roll of the property for the repayment of such costs, plus interest, without any further notice hereof. c. Applicant shall agree to indemnify, defend and hold harmless the City, its designees, employees, and assigns, from any and all liability resulting from the City's approval of the small wireless facility, the operation of the small wireless facility, and/or the City's enforcement of this Chapter as it relates to any small wireless facility owned and/or operated by the applicant. 14.01.100. ABANDONED SITES a. Any small wireless facility that is not continuously operated for a period of 90 days shall be conclusively deemed abandoned except when such non- operation is the result of natural disaster, in which case the period of time shall be 180 days (six months). The applicant shall give written notice to the City at such time as use of the facility ceases. b. The applicant shall have 60 days after a notice of abandonment is mailed by the City to make the facility operable, replace the facility with an operable facility, or completely remove the facility and all supporting facilities and restore the site. c. Any removal of the small wireless facility shall be conducted in a safe manner, and the property on which it is located shall be restored to its original condition (reasonable wear and tear excepted) within 180 days of the removal of the small wireless facility. Alternatively, the applicant shall provide a letter of credit or cash deposit acceptable to the City which guarantees removal of all such equipment and restoration of the property. Bonds are not considered acceptable security. Any cash deposit shall be held in trust by the City for the express purpose of using the funds for removal of the equipment/facility. -9- d. If the applicant does not do so within that period of time, the City may remove or cause to be removed the small wireless facility at the expense of either the underlying property owner's expense or applicant's expense, and place a lien on the property for the cost of such removal as set out in the written consent provided by the property owner. e. If there are two or more users small wireless facilities on a single support structure, the support structure shall not be deemed abandoned until all users abandon it. 14.01.110. SUSPENSION AND REVOCATION The revocation of the permit issued under this Chapter shall occur in the same manner as its approval. Pending such revocation proceedings, the City Engineer/Public Works Director or their appropriate designee may suspend the permit in order to protect public health, safety or welfare. Grounds for revocation shall include, but are not limited to: a. The facility has failed to comply with any applicable state, federal or local standards, including the standards articulated in this Chapter, and has failed to correct such a failure after 30-days' prior written notice to do so; or b. The small wireless facility(including the landscaping, hardscape or site) has not been properly maintained or poses a threat to public health, safety or welfare. 14.01.120. NONCONFORMING SMALL WIRELESS FACILITIES a. Any small wireless facility constructed in violation of this Chapter after the effective date of this Chapter, or in violation of any prior ordinance or regulation, is subject to immediate abatement. b. Any facility that would qualify as a small wireless facility by these standards that was lawfully constructed prior to the effective date of this Chapter shall be considered a legal nonconforming use, unless it otherwise runs afoul of those laws and regulations that existed at the time of its construction. 14.01.130. ENFORCEMENT The City will use reasonable efforts to notify the applicant and the property owner, if different, prior to any abatement or enforcement action. The City may enforce this ordinance in any legally available manner, including but not limited to abatement by the City with costs charged to the property owner. Violation of any of the provisions of this Chapter shall be considered a public nuisance, subject to abatement and the recovery of the City's costs in performing such an abatement. 14.01.140. PREEMPTION -10- Notwithstanding any other provision of this chapter to the contrary, an applicant may request an exemption to excuse it from having to comply with this chapter on the grounds that the requirement or action taken by the City would violate state or federal law. The City shall grant the exemption or excuse an applicant from compliance with all or a portion of this chapter, if it finds based on substantial evidence in the written record that the challenged requirement or action is preempted by state or federal law. Section 5. Severability. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance, and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional, without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. Section 6. Effective Date. This ordinance shall take effect 30 days from the date of its adoption. Section 7. Notice of Adoption. The City Clerk shall certify to the passage and adoption of this Ordinance, and shall cause to be published within fifteen (15) days after its passage in a newspaper of general circulation and circulated within the City in accordance with Government Code Section 36933(a) or, cause this Ordinance to be published in a manner required by law using the alternative summary and posting procedure authorized under Government Code Section 36933 (c). This Ordinance was introduced on the 15th day of May and PASSED, APPROVED AND ADOPTED this 5th day of June 2019. Bill Zimm&akkayor ATTEST: S ah A. Manwa ing, City Cler Approved as to form: Jeffro T. fAelching, City A rney -11- GTY 4� rAENIFEE � J STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss CITY OF MENIFEE ) I, Sarah A. Manwaring, City Clerk of the City of Menifee, do hereby certify that the foregoing Ordinance No. 2019-271 was duly adopted by the City Council of the City of Menifee at a meeting thereof held on the 5th of June, 2019 by the following vote: Ayes: Deines, Liesemeyer, Sobek, August, Zimmerman Noes: None Absent: None -- Abstain: None CSArah . Manwaring, City C rk