The provisions of this part shall apply to any placement of wireless facilities into, upon, under, across, along and through any right-of-way for which a permit is required. The provisions of Article IX, Chapter 4, Section 9426 shall apply to any placement of wireless facilities outside of the right-of-way.
(Added by Ord. 1409, adopted 4-23-19)
The purpose of this part is to establish a process for managing, and uniform standards for acting upon, requests for the placement of wireless facilities within the right-of-way of the City consistent with the City's obligation to promote the public health, safety, and welfare, to manage the right-of-way, and to ensure that the public is not incommoded by the use of the right-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 right-of-way. This part shall be interpreted consistent with those provisions.
(Added by Ord. 1409, adopted 4-23-19)
The terms used in this part shall have the following meanings:
Applicant:
A person filing an application for placement or modification of a wireless facility in the right-of-way.
Application:
A formal request, including all required and requested documentation and information, submitted by an applicant to the City for a wireless encroachment permit.
Base Station:
shall have the meaning as set forth in 47 C.F.R. Section 1.6100(b)(1), or any successor provision.
Eligible Facilities Request:
shall have the meaning as set forth in 47 C.F.R. Section 1.6100(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 right-of-way, 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 right-of-way.
Permittee:
any person or entity granted a wireless encroachment permit pursuant to this part.
Personal Wireless Services:
shall have the same meaning as set forth in 47 U.S.C. Section 332(c)(7)(C)(i).
Personal Wireless Services Facility:
means a wireless facility used for the provision of personal wireless services.
Right-of-Way:
shall have the same meaning as in Article VII, Chapter 1, Section 7100.24, 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(l), 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) 
Is mounted on a structure no more than 10% taller than other adjacent structures, or
(iii) 
Does not extend an existing structure on which it is located to a height of more than 50 feet feet or by more than 10%, 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 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 right-of-way designed to support electric, telephone and similar utility lines. A tower is not a utility pole.
Wireless Encroachment Permit:
A permit issued pursuant to this part authorizing the placement or modification of a wireless facility of a design specified in the permit at a particular location within the right-of-way; and the modification of any existing support structure to which the wireless facility is proposed to be attached.
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).
Wireless Infrastructure Provider:
A person that owns, controls, operates or manages a wireless facility or portion thereof within the right-of-way.
Wireless Regulations:
Those regulations adopted pursuant to Section 7199.4 and implementing the provisions of this part.
Wireless Service Provider:
An entity that provides personal wireless services to end users.
(Added by Ord. 1409, adopted 4-23-19)
(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 Article VII, Chapter 1, Part 2 in addition to all of the requirements of this part. Unless exempted, every person who desires to place a wireless facility in the right-of-way or modify an existing wireless facility in the right-of-way must obtain a wireless encroachment permit authorizing the placement or modification in accordance with this part. Except for small cell facilities, facilities qualifying as eligible facilities requests, or any other type of facility expressly allowed in the right-of-way by State or Federal law, no other wireless facilities shall be permitted pursuant to this part.
(b) 
Exemptions. This part 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 right-of-way 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.
(d) 
Pre-existing Facilities in the Right-of-Way. Any wireless facility already existing in the right-of-way as of the date of this part's adoption shall remain subject to the provisions of the Code in effect prior to this part, unless and until an extension of such facility's then-existing permit is granted, at which time the provisions of this part 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 part, rather than the portion(s) of the Code that it was previously reviewed under.
(e) 
Public Use. Except as otherwise provided by California law, any use of the right-of-way authorized pursuant to this part will be subordinate to the City's use and use by the public.
(Added by Ord. 1409, adopted 4-23-19)
(a) 
Authority. The City Engineer or its designee is responsible for administering this part. As part of the administration of this part, the City Engineer may:
(1) 
Interpret the provisions of this part;
(2) 
Develop and implement standards governing the placement and modification of wireless facilities consistent with the requirements of this part, including regulations governing collocation and resolution of conflicting applications for placement of wireless facilities;
(3) 
Develop and implement acceptable design and development standards for wireless facilities in the right-of-way, taking into account the zoning districts bounding the right-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 part;
(5) 
Determine the amount of and collect, as a condition of the completeness of any application, any fee established by this part;
(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) 
Establish standard conditions of approval that apply unless modified by the approving authority;
(10) 
Subject to appeal as provided herein, determine whether to approve, approve subject to conditions, or deny an application; and
(11) 
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) 
Appeals.
(1) 
Any person adversely affected by the decision of the City Engineer pursuant to this part may appeal the City Engineer'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.
(2) 
Where the City Engineer 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.
(3) 
All appeals must be filed within two business days of the written decision of the City Engineer, unless the City Engineer extends the time therefor. An extension may not be granted where extension would result in approval of the application by operation of law.
(4) 
Any appeal shall be conducted so that a timely written decision may be issued in accordance with applicable law.
(Added by Ord. 1409, adopted 4-23-19)
(a) 
Generally. Wireless facilities in the right-of-way shall meet the minimum requirements set forth in this part 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 right-of-way 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 part may be waived, but only to the minimum extent required to avoid the prohibition or violation.
(c) 
Minimum 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 right-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 right-of-way or any portion thereof, or to cause the improvement, modification, relocation, vacation, or abandonment of facilities in the right-of-way.
(d) 
Location and Design Standards. All applicants shall locate the facilities in accordance with the standards and wireless regulations adopted by the City Engineer. All applicants shall, to the extent feasible, incorporate specific concealment elements to minimize visual impacts and incorporate design requirements in accordance with the standards adopted by the City Engineer and ensure compliance with all standards for noise emissions, unless it is determined that another design is less intrusive or placement is required under applicable law.
(Added by Ord. 1409, adopted 4-23-19)
(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: City Engineer, at 11111 Brookshire Avenue, Downey, CA 90241, or such other address as may be designated by City Engineer.
(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 City Engineer to discuss the proposed facility, the requirements of this part, and any potential impacts of the proposed facility.
(c) 
Content. An application must include:
(1) 
Any information required pursuant to the wireless regulations adopted by the City Engineer;
(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 five hundred feet (500′) 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 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 part.
(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 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 Code and the FCC's radio frequency emissions standards.
(8) 
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.
(9) 
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.
(10) 
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 City Engineer or his or her designee. The City Engineer may grant or deny a request for a waiver pursuant to this subsection. The City Engineer 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 Code.
(f) 
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, the City Engineer may notify the applicant in writing, and specifying the material omitted from the application.
(Added by Ord. 1409, adopted 4-23-19)
(a) 
Findings Required for Approval.
(1) 
Except for eligible facilities requests, the City Engineer 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;
(ii) 
The facility complies with this part 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 City Engineer 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 City Engineer or City Council shall be in writing and include the reasons for the decision.
(c) 
Independent Consultants. The City Engineer 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 part. 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.
(Added by Ord. 1409, adopted 4-23-19)
(a) 
For Breach. A wireless encroachment permit may be revoked pursuant to the procedure in Section 7134.2 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. A wireless facility installed without a wireless encroachment permit (except for those exempted by this part) 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 removal shall be paid by entities who own or control any part of the wireless facility.
(c) 
Municipal Infraction. Any violation of this part will be subject to penalties as an infraction pursuant to Article I, Chapter 2, Section 1200.
(Added by Ord. 1409, adopted 4-23-19)
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.
(Added by Ord. 1409, adopted 4-23-19)
In establishing the rights, obligations and conditions set forth in this part, it is the intent of the City to treat each applicant or 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 right-of-way.
(Added by Ord. 1409, adopted 4-23-19)