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Ordinance 2297 - Adding Chapter 11.13 for Wireless Communication Facilities in the Public ROW ORDINANCE 2297 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CAMPBELL ADDING CHAPTER 11.13 TO THE CAMPBELL MUNICIPAL CODE REGULATING ALL WIRELESS COMMUNICATION FACILITIES IN THE PUBLIC RIGHT-OF-WAY (OTHER THAN SMALL CELL WIRELESS FACILITIES) After due consideration of all evidence presented, the City Council of the City of Campbell does hereby ordain as follows: SECTION 1. Chapter 11.13 of the Campbell Municipal Code is added to read as follows: Chapter 11.13 WIRELESS COMMUNICATION FACILITIES IN THE PUBLIC RIGHT-OF-WAY (OTHER THAN SMALL CELL WIRELESS FACILITIES) 11.13.010PURPOSE 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 wireless communications facilities in the City of Campbell's public right-of-way (other than small cell wireless facilities which shall be governed by Chapter 11.14 of the city's municipal code), 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 wireless communication facilities in the public right-of-way to have minimal impacts on the city's streets and sidewalks. B. Require wireless communication 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 wireless communications 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 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. 11.13.020DEFINITIONS. A. All definitions provided in Chapter 11.14 of the city's municipal code shall apply to this chapter as well. B. Additional Definitions. In addition to the definitions in Chapter 11.14, the terms used in this section will have the following meanings as set forth below. Terms not defined in this section or in Chapter 11.14 shall be interpreted to give this chapter its most reasonable meaning and application, consistent with applicable state and federal law. 1. "Wireless Facility Design Requirements" means the aesthetic and design standards for wireless facilities (other than Small Cell Wireless Facilities) approved by the city council, available at https://www.ci.campbell.ca.us/DocumentCenterNiew/7649/Wireless-Facility- Design-Requirements----CC-Res-12226?bidld=. 2. "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. 11.13.030APPLICABILITY. A. This chapter applies to: 1. All applications to construct, install, operate, collocate, modify, reconstruct, relocate or otherwise deploy any wireless communication facilities within the city's public right-of-way, unless exempted in Section 11.13.030(B) below. 2. All wireless facilities, including, without limitation, all new facilities, existing facilities, and modifications to existing facilities proposed after the effective date of this chapter, unless exempted in Section 11.13.030(B) below. B. This chapter shall not apply to the following facilities: 1. Small Cell Wireless Facilities in the public right of way, which shall be governed and regulated by Chapter 11.14 of the city's municipal code. 2. Wireless facilities not proposed or currently located in the public right-of-way, including but not limited to, on private property, or in or on other City of Campbell owned property such as parks, structures, or buildings which are regulated by Chapter 21.34 of the city's municipal code. 3. 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. 4. Antennas and wireless communications facilities identified by the FCC or the CPUC as exempt from local regulations. 5. Wireless communications 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. 6. Over the Air Receptions Devices (OTARDs) as defined in 47 Code of Federal Regulations (C.F.R.) Section 1.4000 et seq., as may be amended or superseded. C. Special Provisions for Section 6409(a) Approvals. All requests for approval to collocate, replace, or remove transmission equipment at an existing wireless facility located in the public right-of-way and submitted pursuant to Section 6409(a) will be reviewed under the general Wireless Facility Permit application procedures provided in this chapter, as well as the special Section 6409(a) provisions provided in Section 11.13.100 below. To the extent that the applicant's request does not qualify for approval under Section 6409(a), the applicant may submit an application for a Wireless Permit under the general provisions in this chapter. 11.13.040PERMIT REQUIREMENTS A. Wireless Facility Permit Required. Any applicant seeking to construct, install, modify, maintain, or engage in an activity relating to a wireless communications facility in, on, under, or above the public right-of-way that is subject to this chapter, shall, in addition to any other required permits or authorizations as provided in Section 11.13.040(D) below, obtain a Wireless Facility Permit pursuant to the requirements of this chapter prior, to conducting any work related to such wireless communications facility. B. Wireless Facility Permit Application Form. The applicant shall submit a complete, duly executed Wireless Facility 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 Guidelines and Wireless Facility Design Requirements. Applicant must pay a Wireless Permit application processing fee as further described in Section 11.13.040(E). C. City Pole License. For any 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 Wireless Facility Permit. The absence of a city-approved Master License Agreement shall be an independently sufficient basis to deny the application for the Wireless Facility Permit for a city pole. D. Encroachment Area. The Wireless Facility Permit will authorize the use.of a particular location within the public right-of-way to perform work related to a wireless communications facility, referred to as the encroachment area. The Wireless Facility 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 Wireless Facility Permit Compliance with the requirements for a Wireless Facility Permit will not require approval of a separate encroachment permit under 11.24.150 of the Campbell Municipal Code. E. Other Permits. In addition to a Wireless Facility Permit, an applicant must also obtain all other required permits and/or other approvals or authorizations from all applicable City of Campbell departments, and/or state or federal agencies, including but not limited to, any applicable building permits, conditional use permit, administrative site permit or architectural review permit that may be required. 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 Wireless Facility Permit, and other required permits and approvals consistent with this chapter must be paid in full or be satisfied before the Wireless Permit may be issued by the city. In addition, city may seek reimbursement of the actual reasonable costs related to licensing, permitting, and administering a wireless communications facility in the public right-of-way as set by the city council. Failure to comply with this provision shall be a basis to deny, revoke, or terminate the Wireless Facility Permit 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. 11.13.050 REQUIRED APPROVALS. A. All wireless communications facilities in the public right-of-way shall: 1. Comply with all applicable State and Federal laws including but not limited to the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.) and all applicable health and safety requirements, including but not limited to Public Utilities Commission General Order 95, and as these rules may be amended or superseded. 2. Comply with all applicable conditions of the Wireless Facility Permit issued by the city. 3. 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 Wireless Facility Design Requirements. 4. Be consistent with Sections 7901 and 7901.1 of the Public Utilities Code. 5. 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 Wireless Facility Design Requirements. 6. Comply with all applicable federal RF exposure standards and exposure limits. 11.13.060 REVIEW PROCESS. A. A Wireless Facility Permit 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 Wireless Facility Design Requirements. B. The City Engineer, or his or her designee, shall review all applications for the Wireless Facility Permit. The Wireless Facility Permit shall be acted on within all processing timelines required by any applicable state or federal laws, or other applicable timelines. 11.13.070 APPROVALS AND DENIALS; NOTICES. A. Decision. The City Engineer shall approve, conditionally approve, or deny a complete application for a Wireless Facility Permit. B. Required Findings for Approval. The City Engineer may approve or conditionally approve a complete Wireless Facility Permit application for a wireless communications facility when the City Engineer finds: 1. The applicant and/or the proposed facility complies with all applicable requirements of this chapter; 2. The application is deemed complete by the City Engineer, and complies with the applicable Permitting Guidelines; 3. The proposed project complies with all applicable design standards in the city's adopted Wireless Facility Design Requirements as determined by the City Engineer; 4. 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; 5. The proposed facility will not incommode the public use of the public right-of-way; 6. The proposed construction plan and schedule will not unduly interfere with the public's use of the public right-of-way; and 7. The proposed wireless 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 Wireless Facility Permit as may be necessary or appropriate to ensure compliance with this chapter. D. Decision Notices. Before the expiration of any 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 Wireless Facility Permit. 11.13.080 CONDITIONS OF APPROVAL. A. Fees. The applicant for a wireless communications facility shall be subject to all applicable fees and charges for wireless communications facilities and the Wireless Facility 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 wireless communications facility installation and operation. B. Inspection and reporting. The permittee under the Permit, when directed by the city, must perform an inspection of the wireless facility and submit a report to the Public Works Department on the condition of the wireless facility to include any identified concerns and corrective action taken or to be taken. The permittee shall also maintain and repair the wireless facility at its sole expense during its placement in the public right-of-way. The permittee must correct or repair the wireless 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. C. The applicable permit(s) may be rescinded or automatically expire if construction is not completed pursuant to the Permit conditions within one (1) year of the Permit approval or issuance date. The applicant may not renew the Permit or resubmit an application to develop a wireless facility at the same location for six (6) months from date of rescission. D. Abandonment. Wireless facilities no longer used to provide service shall be removed by the last known owner of record of such wireless 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, city infrastructure, or city property 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. 11.13.090 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, in the sole discretion of the City Engineer, 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 wireless facility's interference with a city project which seeks to protect and promote public safety and health, and community welfare; (8) A wireless 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. (e) A permittee whose permit or right has been revoked may have the revocation reviewed, upon written appeal as set forth in Section 11.13.110. 11.13.100 SPECIAL PROVISIONS FOR SECTION 6409(a) APPROVALS. A. Applicability. This section applies to all requests for approval to collocate, replace, or remove transmission equipment at an existing wireless tower or base station located in the public rights-of-way submitted pursuant to Section 6409(a). B. Additional Section 6409(a) Definitions. In addition to the definitions in Section 11.13.020, the terms used in this section will have the following meanings as set forth below. 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. 1. "Eligible Support Structure means the same as defined by the FCC in 47 C.F.R. § 1.6100(b)(4), as may be amended. 2. "Existing" means the same as defined in 47 C.F.R. § 1.6100(b)(5), as may be amended. 3. "Section 6409(a) request" means any request to collocate, replace, or remove transmission equipment at an existing wireless tower or base station located in the public right-of-way submitted pursuant to Section 6409(a). 4. "Substantial change" or "substantially change" means the same as defined in 47 C.F.R. § 1.6100(b)(7), as may be amended. 5. "Tower" means the same as defined in 47 C.F.R. § 1.6100(b)(9), as may be amended. 6. "Transmission equipment" means the same as defined in 47 C.F.R § 1.6100(b)(8), as may be amended. C. Required Approval. Any Section 6409(a) request submitted with a written request for approval under Section 6409(a) as indicated in the city's Wireless Facility Permit application form, shall require approval of a Wireless Facility Permit under the general standards and procedures of this chapter, as well as any additional Section 6409(a) special provisions as provided in this Section and the Permitting Guidelines. D. Additional Required Findings for Section 6409(a) Request Approval. The City Engineer may approve or conditionally approve a Section 6409(a) request when the City Engineer finds that the proposed project meets the approval requirements in this chapter and the Permitting Guidelines, as well as the following additional required findings: 1. Involves collocation, removal, or replacement of transmission equipment on an existing wireless tower or base station; 2. Does not substantially change the physical dimensions of the existing wireless tower or base station; and 3. Remains in compliance with all applicable FCC RF standards. E. Criteria for Denial without Prejudice. Notwithstanding any other provision in this chapter, and consistent with all applicable federal laws and regulations, the City Engineer may deny without prejudice any Section 6409(a) request when the City Engineer finds that the proposed project: 1. Does not meet the findings required in subsection (D) above; 2. Involves the replacement of the entire eligible support structure; or 3. Violates any legally enforceable and generally applicable building, structural, electrical, and safety codes, or other laws codifying objective standards reasonably related to health and safety. F. Conditional Approvals. Subject to any applicable limitations in federal or state law, nothing in this section is intended to limit the city's authority to conditionally approve an application for a Section 6409(a) request to protect and promote the public health and safety. G. Appeals. Any applicant may appeal the City Engineer's written decision to deny without prejudice an application for Section 6409(a) approval in compliance with 11.13.110 below. 11.13.110 APPEALS. 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 under this chapter in accordance with the appeals process provided in Section 11.14.100 of the Campbell Municipal Code. 11.13.120 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. 11.13.130REVIEW 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, or whenever it deems necessary to do so. 11.13.140SEVERABILITY. 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 within fifteen (15) days upon passage and adoption in a newspaper of general circulation in the City of Campbell, County of Santa Clara. PASSED AND ADOPTED this 3rd day of October, 2023, by the following vote: AYES: Councilmembers: Lopez, Scozzola, Furtado, Landry, Bybee NOES: Councilmembers: None ABSENT: Councilmembers: None APPROVED: firms Anne Bybee, Mayor ATTEST:( _ 1kO' 761,410/a--4Andrea Sgers, City Clerk