CC Ordinance 2253Ordinance No. 2253
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAMPBELL ADDING
CHAPTER 11.14 TO THE CAMBELL MUNICIPAL CODE REGULATING SMALL
CELL WIRELESS FACILITIES IN THE PUBLIC RIGHT-OF-WAY
After due consideration of all evidence presented, the City Council of the City of Campbell
does ordain as follows:
SECTION 1. Chapter 11.14 of the Campbell Municipal Code is added to read as follows:
Chapter 11.14
SMALL CELL WIRELESS FACILITIES IN THE PUBLIC RIGHT-OF-WAY
11.14.010 PURPOSE AND INTENT.
The purpose and intent of this chapter is to reasonably regulate and provide a uniform and
comprehensive set of standards and requirements for the orderly development, siting,
installation, construction, collocation, modification, operation, maintenance, relocation, and
removal of small cell facilities in the City of Campbell's public right-of-way, consistent with
applicable federal and state laws. Due to Section 704 of the Telecommunications Act of 1996
and subsequent Federal Communications Commission Orders, the City is prevented from taking
into consideration all citizens' concerns with respect to the health effects of this technology.
Pursuant to 47 U.S.C. 332(c)(7), the City may not regulate the placement, construction, and
modification of wireless service facilities on the basis of the environmental effects of radio
frequency emissions to the extent that such facilities comply with the Federal Communications
Commission's regulations concerning such emissions. To the extent permitted by federal law,
this chapter seeks to protect and promote public safety, and community welfare, and preserve the
City's character and aesthetic quality, while also providing wireless services. These regulations
are further intended to:
A. Require small cell facilities in the public right-of-way to have minimal impacts on the city's
streets and sidewalks.
B. Require small cell facilities in the public right-of-way to be designed to minimize adverse
visual impacts.
These regulations are not intended to, and shall not be interpreted or applied to:
A. Prohibit or effectively prohibit personal wireless services; or
B. Unreasonably discriminate among wireless communications providers of functionally
equivalent services; or
C. Regulate the placement, construction, or modification of small cell facilities based on the
environmental effects of radio frequency emissions to the extent that such facilities comply
with all applicable FCC regulations concerning such emissions; or
Page 1 of 10
D. Prohibit or effectively prohibit any collocation or modification that the city may not deny
under applicable California or federal law; or
E. Preempt any applicable California or federal law.
11.14.020 DEFINITIONS.
A. The following definitions only apply to this chapter and shall not be construed to define the
same terms found in any other section of this code. As used in this chapter, the following
terms shall have the meaning set forth below.
1. "Antenna" means a device or system of wires, poles, rods, dishes, discs, or similar
devices used to transmit and/or receive radio or electromagnetic waves.
2. "Base station" means the same as defined in 47 C.F.R. §1.6100(b)(1), as may be
amended or superseded.
3. "City" means the City of Campbell.
4. "City Engineer" means the City Engineer of the City of Campbell.
5. "Code" means the City of Campbell Municipal Code, as may be amended.
6. "Collocation" means the same as defined by the FCC in 47 CFR § 1.6002(g), as
may be amended or superseded. "CPUC" means the California Public Utilities
Commission, or its duly appointed successor agency.
7. "Existing" means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(5), as
may be amended or superseded.
8. "FCC" means the Federal Communications Commission or its duly appointed
successor agency.
9. "FCC Shot Clock" means the time frame within which the city generally must act
on a given wireless application, as defined by the FCC and as may be amended or
superseded.
10. "Incommode the public use" means to unreasonably hinder, impede, or obstruct
the public use; or to unreasonably subject the public use to inconvenience or
discomfort, as used in California Public Utilities Code §7901.
11. "Permit" or "Small Cell Wireless Permit" means the Small Cell Wireless Permit
issued by the Public Works Department for any work required in the public right-
of-way for the installation or in support or otherwise related to a small cell
facility, consistent with the Small Cell Permitting Guidelines and Small Cell
Design Guidelines. This Permit may functionally include the approval of various
other city permits, if applicable, including a street opening permit, a concrete
permit, an electrical permit, and an encroachment permit.
12. "Permitting Guidelines" means the Small Cell Permitting Guidelines approved by
the city council, and available on the City's website, consistent with this chapter.
Page 2 of 10
13. "Personal wireless service facilities" has the same meaning as provided in 47
U.S.C. § 332(c)(7)(C)(ii), as may be amended or superseded.
14. "Personal wireless services" has the same meaning as provided in 47 U.S.C.
§332(c)(7)(C)(i), as may be amended or superseded.
15. "Public Right -of -Way" or "City Right -of -Way" means any public street, public
way, public alley, or public place and the space on, above or below it, and all
extensions thereof, and additions thereto, under the ownership or control of the
City of Campbell and in its jurisdiction.
16. "Public Works Director" means the Director of Public Works of the City of
Campbell or his or her designee.
17. "RF" means radio frequency.
18. "Section 6409(a)" means Section 6409(a) of the Middle -Class Tax Relief and Job
Creation Act of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C.
§ 1455(a), as may be amended or superseded.
19. "Small Cell Design Guidelines" means the aesthetic and design standards for
small cell wireless facilities approved by the city council, consistent with this
chapter.
20. "Small Cell Wireless Facilities" or "Facility(ies)" means the same as defined by
the FCC in 47 C.F.R. § 1.6002(1), as may be amended or superseded, regardless of
whether these facilities are located on wood utility poles or City -owned poles.
21. "Stealth technologies/techniques" are camouflaging methods applied to wireless
communications facilities which render them visually inconspicuous.
22. "Visual impact" means the placement or design of a wireless communications
facility or the associated equipment such that they are not screened or shielded or
are plainly visible and are likely to be noticeable or otherwise conspicuous.
23. "Wireless" mean any FCC -licensed or authorized wireless communications
service transmitted over frequencies in the electromagnetic spectrum.
24. "Wireless communications facility(ies)" or "wireless facility(ies)" means an
installation used to transmit signals over the air from facility to facility or from
facility to user equipment for any wireless service and includes, but is not limited
to, personal wireless services facilities. The term "wireless communications
facilities" encompasses facilities that send, transmit, and/or receive radio
frequency signals, AM/FM, microwave, and/or electromagnetic waves for the
purpose of providing voice, data, images, or other information, including, but not
limited to, cellular and/or digital telephone service, personal communications
services, and paging services. Wireless communications facilities include, without
limitation, antennas and all other types of equipment for the transmission or
receipt of such signals; towers or similar structures built to support such
equipment; equipment cabinets, base stations, generators, cables, conduits, and
Page 3 of 10
other accessory development and supportfeatures; and screening and
concealment elements. Also referred to as a "facility(ies)."
25. "Wireless communications provider" is any company or organization that
provides or who represents a company or organization that provides wireless
communications services. (Also referred to as "service provider").
B. Terms not defined in this section shall be interpreted to give this chapter its most reasonable
meaning and application, consistent with applicable state and federal law.
11.14.030 APPLICABILITY.
A. This chapter applies to:
1. All applications to construct, install, operate, collocate, modify, reconstruct, relocate or
otherwise deploy small cell wireless facilities within the public right-of-way, except as
provided otherwise in this chapter below.
2. All small cell facilities, including, without limitation, all new facilities, existing facilities,
and modifications to existing facilities proposed after the effective date of this chapter,
unless the facility qualifies for an exemption.
B. This chapter shall not apply to the following facilities:
1. Facilities not proposed or currently located in the public right-of-way.
2. Wireless communication "facilities used solely for public safety purposes, installed and
operated by authorized public safety agencies (e.g. county 911 emergency services,
police, sheriff, fire departments, first responder medical services, hospitals, etc.) and any
incorporating technologies including, but not limited to, City owned traffic operations
technologies.
3. Antennas and wireless communications facilities identified by the FCC or the CPUC as
exempt from local regulations.
4. Small cell wireless facilities that are suspended, whether embedded or attached, on
communication cables or lines that are strung between existing utility poles in
compliance with applicable safety codes.
11.14.040 PERMIT REQUIREMENTS.
A. Small Cell Wireless Permit Required. Any applicant seeking to construct, install, modify,
maintain or engage in an activity relating to a small cell facility in, on, under, or above the
public right-of-way that is subject to this chapter, shall obtain a Small Cell Wireless Permit
pursuant to the requirements of this chapter prior to conducting any work related to such
wireless communications facility.
B. Permit Application Form. The applicant shall submit a complete, duly executed Small Cell
Wireless Permit application in a form approved by the Public Works Department, which may
be updated from time to time. The application will not be considered duly filed or complete
unless submitted in accordance with the requirements of this chapter, the Permitting
Page 4 of 10
Guidelines and Small Cell Design Guidelines. Applicant must pay a Permit application
processing fee as set by the city's fee schedule, at the time the application is submitted.
C. City Pole License. For any small wireless facility proposed to be installed on a city pole
controlled by the city and located within the public right-of-way, wireless communications
providers are required to enter into a Master License Agreement in a form as approved by the
city attorney, for the use of a city pole in a specified license area and pay a license fee subject
to the city's fee schedule. Any applicant seeking a Master License Agreement shall
additionally pay a Master License Agreement administrative fee subject to the city's fee
schedule to reimburse the city for reasonable costs in connection with its preparation, review
of, and action upon the request for such an agreement. The applicant seeking a license to use
a city pole must also apply for a Small Cell Wireless Permit. The absence of a city -approved
Master License Agreement shall be an independently sufficient basis to deny the application
for the Small Cell Wireless Permit for a city pole.
D. Encroachment Area. The Permit will authorize the use of a particular location within the
public right-of-way to perform work related to a small cell wireless facility, referred to as the
encroachment area. The Permit shall specify the encroachment area and an applicant must
comply with all the requirements for the encroachment, in addition to other requirements
consistent with this chapter, as a condition of approval of the Permit. Compliance with the
requirements for a Permit will not require approval of a separate encroachment permit under
11.24.150 of the Campbell Municipal Code.
E. Other Permits. When a Permit requires the approval of other city permits, the City Engineer
may review and approve such other applicable city permits, as part of the approval process
for the Permit. Except for these permits referenced herein or in the Permitting Guidelines, the
applicant may be required to separately obtain other additional permits or approvals from the
city, state, or federal agencies. Any permit granted under this chapter is subject to the
conditions and/or requirements of permits or other approvals obtained from city, state, or
federal agencies, unless expressly exempted by this chapter or by the City Engineer.
F. Fees. All required- fees, security instruments, and cash deposits related to the Permit, the
Master License Agreement, the City Pole license, and other required permits and approvals
consistent with this chapter must be paid in full or be satisfied before the Permit may be
issued by the city. In addition, city may seek reimbursement of the actual reasonable costs
related to licensing, permitting, and administering small cell wireless facilities in the public
right-of-way at an applicable hourly rate as set by the city council. Failure to comply with
this provision shall be a basis to deny, revoke, or terminate the Permit, the Master License or
other applicable permit.
G. Additional Procedures. The city council authorizes the Public Works Director to establish
forms and procedures relating to the implementation of this chapter; and determine the
amount of and collect, as a condition of the completeness of any application, any fee
established by city council relating to this chapter.
11.14.050 REQUIRED APPROVALS.
A. All small cell facilities in the public right-of-way shall:
Page 5 of 20
I. Comply with all applicable State and Federal laws including the federal Americans
with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) and all applicable health
and safety requirements, including Public Utilities Commission General Order 95,
and as these rules may be amended or superseded.
2. Be designed, modified, maintained or otherwise, to minimize visual, noise,
impediments to access, and other impacts on the surrounding community and shall be
planned, designed, located, and erected in accordance with the Permitting Guidelines
and Small Cell Design Guidelines.
3. Be consistent with Sections 7901 and 7901.1 of the Public Utilities Code.
4. Comply with all applicable local and state building codes, including building code
structural requirements and all applicable rules and laws, including the Permitting
Guidelines and Small Cell Design Guidelines.
5. Comply with all applicable federal RF exposure standards and exposure limits.
11.14.060 REVIEW PROCESS.
A. The city shall not approve any request for a Permit except upon a complete and duly filed
application on the then -current form prepared by the city. The application shall comply with
this chapter and any other written rules and policies the city may adopt consistent with this
chapter, including but not limited to, the Permitting Guidelines and Small Cell Design
Guidelines.
B. The City Engineer shall review all applications for the Permit. The review process shall
include: review of a RF report, whereby the City shall the verify that the RF exposure
compliance report is prepared and certified by a California Registered Electrical Engineer
who concluded that the proposed facility and any cumulative emissions from adjacent areas
will comply with applicable federal RF human exposure standards and limits; visual and
aesthetics, noise, access, and public convenience considerations; and review to ensure
compliance with the Small Cell Design Guidelines and Permitting Guidelines, and all other
applicable laws.
C. The Permit shall be acted on within all processing timelines required by the FCC Shot Clocks,
applicable state or federal laws, or other applicable timelines.
11.14.070 APPROVALS AND DENIALS; NOTICES.
A. Decision. The City Engineer shall approve, conditionally approve, or deny a complete
application for a Small Cell Wireless Facilities Permit.
B. Required Findings. The City Engineer may approve or conditionally approve a complete
Permit application fora small cell facility when the City Engineer finds:
1. The proposed project meets the definition for a "small cell facility" as defined by the
FCC;
2. The applicant and/or the proposed facility complies with all applicable requirements
of this chapter;
Page 6 of 10
3. The application is deemed complete by the City Engineer, and complies with the
Permitting Guidelines;
4. The proposed project complies with all applicable design standards in the city's
adopted Small Cell Design Guidelines as determined by the City Engineer;
5. The applicant has demonstrated that the proposed project will be in compliance with
all applicable health and safety regulations, which include without limitation the
Americans with Disabilities Act and all FCC regulations and guidelines for human
exposure to RF emissions;
6. The proposed facility will not incommode the public use of the public right-of-way;
7. The proposed construction plan and schedule will not unduly interfere with the
public's use of the public right-of-way; and
8. The proposed facility is in compliance with all federal and state standards and laws.
C. Conditional Approvals; Denials without Prejudice. Subject to any applicable federal or
California laws, and the Permitting Guidelines, nothing in this chapter is intended to limit the
ability of the City Engineer to conditionally approve or deny without prejudice any
application for a Permit as may be necessary or appropriate to ensure compliance with this
chapter.
D. Decision Notices. Before the expiration of the applicable FCC Shot Clock, the City Engineer
shall notify the applicant pursuant to any FCC requirements.
E. No Possessory Interest. No possessory interest is created by a Permit.
11.14.080 CONDITIONS OF APPROVAL.
A. Fees. The applicant for a small wireless facility shall be subject to all applicable fees and
charges for small cell wireless facilities and the Permit, which shall be determined by
resolution adopted by the city council. If no resolution has been adopted, then the applicant
must submit a signed written statement that acknowledges that the applicant will be required
to reimburse the city for its reasonable costs incurred in connection with the application
within ten (10) days after the city issues a written demand for reimbursement. Applicant shall
also be responsible for paying all electrical service costs associated with the small cell
facility installation and operation.
B. Inspection and reporting. The permittee under the Permit, when directed by the city, must
perform an inspection of the facility and submit a report to the Public Works Department on
the condition of the facility to include any identified concerns and corrective action taken or
to be taken. The permittee shall also maintain and repair the facility at its sole expense during
its placement in the public right-of-way. The permittee must correct or repair the facility
within thirty (30) days after the city's notice for corrective action; after which the city
reserves the right to take any action it deems necessary, which may include revocation of any
applicable permit(s). The permittee is responsible for any costs associated with necessary
actions performed by the city due to permittee's failure to comply with this section and with
the Permitting Guidelines. The permittee has the burden to demonstrate compliance with this
chapter.
Page 7 of 10
C. The applicable permit(s) may be rescinded if construction is not substantially commenced
within one year of the Permit being granted, absent a showing of good cause. The applicant
may not renew the Permit or resubmit an application to develop a small cell facility at the
same location for six months from date of rescission.
D. Abandonment. Small cell facilities no longer used to provide service shall be removed by the
last known owner of record of such facility, at the sole cost of said owner and to the
satisfaction of the city.
E. Existing Agreements. Existing agreements regarding the leasing or licensing of a city pole
entered into before the operative date of this section remain in effect, subject to applicable
termination provisions.
F. The city may adopt a resolution to reserve capacity for future city uses on vertical
infrastructure based on substantial evidence in the record.
11.14.090 REVOCATION.
Any permit or other authorized use of the public right-of-way granted under this chapter may be
revoked or modified for cause in accordance with the provisions of this section.
A. Revocation proceedings may be initiated by the City Engineer.
B. Action. The City Engineer shall act on the proposed revocation after the time for any appeal
has lapsed.
C. Required Findings. The City Engineer may revoke or modify the permit if it makes any of
the following findings:
1. The permittee obtained the approval by means of fraud or misrepresentation of a
material fact;
2. The permittee substantially expanded or altered the use or structure beyond what is
set forth in the Permit or substantially changed the installation's character;
3. The use in question has ceased to exist or has been suspended or abandoned;
4. Failure to comply with any condition of a permit issued;
5. Failure to comply with this chapter;
6. A substantive change of law affecting a utility's authority to occupy or use the public
right-of-way or the city's ability to impose regulations relating to such occupation or
use;
7. A facility's interference with a city project which seeks to protect and promote public
safety and health, and community welfare;
8. A facility's interference with vehicular or pedestrian use of the public right-of-way;
or
9. Failure to make a safe and timely restoration of the public right-of-way.
D. Notice of action. The City Engineer shall issue a written determination of revocation and
mail the determination to the permittee within ten (10) calendar days of such determination.
Page 8 of 10
F. A permittee whose permit or right has been revoked may have the revocation reviewed, upon
written appeal as set forth in section 11.14.100.
11.14.100 APPEALS.
A. Appeals from City Engineer's Decision. The applicant or any interested person or entity may
file an appeal to the Director of Public Works of any decision made by the City Engineer in
compliance with this chapter. The appeal shall be filed within two (2) days of the City
Engineer's decision, with the city clerk in writing and accompanied by a filing fee in compliance
with the city's schedule of fees and charges. The Public Works Director, or Public Works
Director's designee, in his or her discretion, shall determine whether to affirm, set side, or
modify the City Engineer's decision appealed therefrom. Thereafter, the appellant shall be
notified of the Public Works Director's decision.
B. Appeals from Public Works Director's Decision. The applicant or any interested person or
entity may file an appeal to the City Council of any decision made by the Public Works Director
in compliance with this chapter. The appeal shall be filed within two (2) days of the Public
Works Director's decision, with the city clerk in writing and accompanied by a filing fee in
compliance with the city's schedule of fees and charges. The city council's decision shall be
final.
C. Subject of the Appeal. As section 332(c)(7) of the Telecommunications Act preempts local
decisions premised directly or indirectly on the environmental effects of radio frequency (RF)
emissions to the extent such facilities comply with the FCC's regulations, appeals premised on
environmental effects from RF emissions that are compliant with all applicable FCC regulations,
will not be considered.
D. The appeal timeline in this Section may be adjusted by city staff as needed to comply with all
processing timelines required by the FCC Shot Clocks, applicable state or federal laws, or other
applicable timelines.
11.14.110 ATTORNEYS' FEES.
In the event the city determines that it is necessary to take legal action to enforce any of the
requirements under this chapter 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 in writing with permittee to waive said
fees or any part thereof. The foregoing shall not apply if the permittee prevails in the
enforcement proceeding
11.14.120 REVIEW OF ORDINANCE.
Wireless communications technology is currently subject to rapid change. Innovations may
render the need for specific sections of this chapter to be reviewed and revised. The city council
may amend this chapter or its rules and policies by resolution after a change to the FCC's
regulations or standards, or any applicable state or federal laws.
Page 9 of 10
11.14.130 SEVERABILITY.
If any section or portion of this chapter is found to be invalid by a court of competent
jurisdiction, such finding shall not affect the validity of the remainder of the chapter, which shall
continue in full force and effect.
SECTION 2. This ordinance shall become effective thirty (30) days following its passage and
adoption, and shall be published once within fifteen (15) days upon passage and adoption in the
Campbell Express, or a similar newspaper of general circulation in the City of Campbell, County
of Santa Clara.
PASSED AND ADOPTED this 19th day of November 2019, by the following vote:
AYES: Councilmembers: Resnikoff, Bybee, Gibbons, Landry, Waterman
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED:
Richard Waterman, Mayor
ATTEST:
Wendy W od, City Clerk
Page 10 of 10