Ordinance 18-13ORDINANCE NO. 2018-13
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
EASTVALE, CALIFORNIA ADDING CHAPTER 12.12 TO THE
EASTVALE MUNICIPAL CODE PERTAINING TO WIRELESS
TELECOMMUNICATION FACILITIES IN THE PUBLIC RIGHT-OF-WAY
WHEREAS, section 7901 of the California Public Utilities Code confers upon telephone
corporations the right to construct telephone lines and equipment "along and upon any
public road or highway" in such manner and at such points as "not to incommode the
public use of the road or highway." Public Utilities Code Section 7901.1 authorizes a
municipality to "exercise reasonable control" over the time, place, and manner in which
roads and highways are accessed.
WHEREAS, the City Council finds and determines that it is necessary, desirable, and in
the public interest to impose the City's time, place and manner requirements, as
authorized by Public Utilities Code Section 7901.1, upon telephone corporations
through the procedures outlined in this Ordinance.
THE CITY COUNCIL OF THE CITY OF EASTVALE, CALIFORNIA, DOES ORDAIN
AS FOLLOWS:
SECTION 1. Addition of Chapter 12.12. A new Chapter 12.12 is added to the Eastvale
Municipal Code to read as follows:
"Chapter 12.12. —WIRELESS TELECOMMUNICATION FACILITIES IN THE PUBLIC
RIGHT-OF-WAY
12.12.010 Purpose and Intent
The purpose of this Chapter is to establish policies and procedures for the placement of
wireless telecommunication facilities in the public right-of-way within the City's
jurisdiction. The placement of wireless telecommunication facilities outside of the public
right-of-way is not regulated by this Chapter and is subject to the requirements of Title
120 of this Code. This Chapter is intended impose reasonable time, place and manner
regulations upon the installation of wireless telecommunication facilities within the public
right-of-way pursuant to Public Utilities Code section 7901.1, to prevent interference
with the use of the public right-of-way for travel or other lawful uses of the public right-
of-way, prevent visual and physical obstructions that create safety hazards, minimize
damage to the city's pavement, and protect the aesthetics and character of the locations
where wireless telecommunications facilities are installed. This Chapter is also
intended to streamline the approval of small wireless telecommunication facilities in the
public right of way so as to promote the expansion of wireless service and coverage
within the City to serve the City's residents and businesses.
12.12.020 Definitions
"Antenna" means communications equipment that transmits or receives electromagnetic
radio frequency signals used in the provision of wireless services.
"Collocate" means to install, mount, maintain, modify, operate, or replace wireless
telecommunications facilities on an existing pole. "Collocation" has a corresponding
meaning.
"Day" means calendar day.
"Director" means the Public Works Director or his or her designee.
"Large wireless telecommunications facility" means a wireless telecommunications
facility which exceeds either of the maximum sizes for a "small wireless
telecommunications facility."
"Parkway" means that area between the sidewalk and the curb of any street, and where
there is no sidewalk, that area between the edge of the roadway and the property line
adjacent thereto. Parkway shall also include any area within a roadway, which is not
open to vehicular travel.
"Person" means an individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including the City.
""Public sidewalk" means any surface dedicated to the use of pedestrians by license,
easement, operation of law or by grant to the city.
"Public right-of-way" or "right-of-way" means any public street, public way, or public
place, and the space on, above or below it, and all extensions thereof, and additions
thereto, under the jurisdiction of the city.
"Public street" means all of that area dedicated to public use for public street and
sidewalk purposes and includes, but is not limited to, roadways, parkways, landscape
areas, alleys and sidewalks.
"Small wireless telecommunications facility" means a wireless telecommunications
facility that meets both of the following qualifications: (i) the antenna(s) associated with
the facility could fit within an enclosure of no more than six cubic feet in volume; and (ii)
all other wireless equipment associated with the facility are cumulatively no more than:
a) 21 cubic feet in volume, or 35 cubic feet in volume if the facility will support 3 or more
providers. The following types of associated ancillary equipment are not included in the
calculation of equipment volume: electric meter, concealment elements,
telecommunications demarcation box, grounding equipment, power transfer switch, cut-
off switch, and vertical cable runs for the connection of power and other services.
"Wireless telecommunications facility" means equipment at a fixed location that enables
wireless communications between user equipment and a communications network,
including: (i) equipment associated with wireless communications; and (ii) radio
transceivers, antennas, coaxial or fiberoptic cable, regular and backup power supplies,
and comparable equipment, regardless of technological configuration. The term
includes small wireless telecommunications facilities. The term does not include: (i) the
structure or improvements on, under, or within which the equipment is collocated; or (ii)
coaxial or fiber-optic cable that is between wireless support structures or utility poles or
that is otherwise not immediately adjacent to or directly associated with a particular
antenna.
12.12.030 Permissible Facilities
A. Small Wireless Telecommunications Facilities. Small wireless
telecommunications facilities that wholly or partially rests upon, in or over the
public right-of-way are allowed with a permit from the City and subject to
compliance with all provision of this chapter.
B. Large Wireless Telecommunications Facilities. Large wireless
telecommunications facilities are disfavored within the public right-of-way. Large
wireless telecommunication facilities are allowed in the public right-of-way
subject to the permit requirements in Section 4.14 of the Zoning Code.
Notwithstanding the foregoing, the Planning Director may modify the application
requirements in Section 4.14.J.1 of the Zoning Code as determined appropriate
for a proposed right-of-way installation, including but not limited to requiring
submission of a Certificate of Public Convenience and Necessity from the
California Public Utilities Commission in lieu of a lease or other agreement under
Section 4.14.J.1.f.
12.12.040 Streamlined Small Wireless Telecommunications Facility Permit
A. Permit Required. A streamlined small wireless telecommunications facility permit
("streamlined permit") shall be available for non-exempt small wireless
telecommunications facilities proposed to be located in the public right of way.
B. Exemption. A streamlined permit shall not be required for any small wireless
telecommunications facility proposed to be located on any existing City -owned
pole or other vertical infrastructure in the right of way, including but not limited to
streetlights, provided that the City and owner of the small wireless
telecommunication facility have entered into a license agreement for the
installation of the facility on the City asset, and the facility is in compliance with all
of the terms and conditions of the license agreement.
C. Application Submittal. An application for a streamlined permit shall be made to
the director on such form as required by the City and shall contain the following,
plus any other information deemed necessary by the director:
1. The name, address and telephone number of the owner of the facility;
2. The name, address and telephone number of the responsible person
whom the city may notify or contact at any time concerning the facility;
I A site plan containing the exact proposed location of the facility and
detailed plans created by a qualified licensed engineer and in accordance
with requirements set by the director;
4. A general description of the proposed installation work and anticipated
routine maintenance work, and the purposes and intent of the facility;
5. Documentation showing that the proposed facility will not result in levels of
radio frequency emissions that exceed Federal Communications
Commission standards;
6. A photograph and/or model number of the type of facility being used;
7. A photosimulation showing the proposed facility as it would appear when
installed as proposed;
8. A copy of the certificate of public convenience and necessity issued by the
CPUC to the applicant, and a copy of the CPUC decision that authorizes
the applicant to provide the telecommunications service for which the
facilities are proposed to be constructed in the city's public rights-of-way;
9. A hold harmless agreement pursuant to Section 12.12.060.D;
10. A certificate of insurance pursuant to Section 12.12.060.E;
11. An agreement to conform to the requirements of Section 12.12.060; and
12. An application and processing fee, as established by resolution of the City
Council.
Within ten (10) business days of receiving an application, the director must
determine and notify the applicant whether the application is complete, and if
incomplete must specify in writing what information is missing.
D. Streamlined Permit Approval. The director shall approve an application for a
streamlined permit within twenty (20) business days of the submittal of an
application containing all of the items required by paragraph C of this section if
the director finds:
1. The proposed facility meets the definition of a small wireless
telecommunications facility;
2. The small wireless telecommunications facility is proposed to be
collocated on an existing pole or other vertical support structure in the
public right-of-way, and if the applicant will be replacing the existing pole
or other vertical support structure the replacement pole or structure
matches the appearance of the existing pole or structure, to the extent
feasible;
3. The proposed facility complies with the standards in Section 12.12.060,
and is not reasonably likely to endanger the safety of persons or property,
interfere with or impedes the flow of pedestrian or vehicular traffic, or
interfere with existing uses and facilities in the vicinity; and
4. The small wireless telecommunications facility substantially conforms to a
design that has been pre -approved by the City Council.
If the director cannot make one or more of the required findings, the streamlined
permit shall be denied. The applicant may apply for a standard permit for the
same proposed facility under Section 12.12.050 below without any waiting
period.
E. Excavation Permit Required. If the installation of the proposed small wireless
telecommunications facility involves excavation of the public right-of-way, an
excavation permit must also be obtained pursuant to Chapter 12.08 of this Code.
12.12.050 Standard Small Wireless Telecommunications Facility Permit
A. Eligibility. A standard small wireless telecommunications facility permit
("standard permit") shall be available for non-exempt small wireless
telecommunications facilities proposed to be located in the public right of way.
B. Exemption. A standard permit shall not be required for any small wireless
telecommunications facility proposed to be located on any existing City -owned
pole or other vertical infrastructure in the right of way, including but not limited to
streetlights, provided that the City and owner of the small wireless
telecommunication facility have entered into a license agreement for the
installation of the facility on the City asset, and the facility is in compliance with all
of the terms and conditions of the license agreement.
C. Application Submittal. An application for a standard permit shall be made to the
director on such form as required by the City and shall contain all of the same
information required in the application for a streamlined permit, plus:
1. If the proposed facility does not substantially conform to a pre -approved
design for small wireless telecommunications facilities, an explanation as
to why conforming to a pre -approved design is not feasible and
demonstrating that the proposed facility will not create a negative
aesthetic impact to the area;
2. If the proposed facility will not be collocated on an existing pole or other
vertical support structure, information demonstrating that either:
a. No existing pole or other vertical support structure in the vicinity of
the proposed location is available to the applicant, or
b. Utilizing an existing pole or other available vertical support structure
would result in greater public safety or aesthetic impacts than the
proposed new facility.
Within thirty (30) days of receiving an application, the City must determine and
notify the applicant whether the application is complete, unless a shorter period
of time is required by state or federal laws or regulations, and if incomplete must
specify in writing what information is missing.
D. Approval. The director shall approve an application for a standard permit within
sixty (60) days of the submittal of an application containing all of the items
required by paragraph C of this section if the director makes all of the following
findings:
The proposed facility meets the definition of a small wireless
telecommunications facility;
2. The proposed facility complies with the standards in Section 12.12.060,
and is not reasonably likely to endanger the safety of persons or property,
interfere with or impedes the flow of pedestrian or vehicular traffic, or
interfere with existing uses and facilities in the vicinity;
3. If the proposed facility does not substantially conform to a pre -approved
design, that the design of the proposed facility is aesthetically consistent
with its surroundings and visually unobtrusive; and
4. If the proposed facility will not be collocated on an existing pole or other
vertical support structure, that no existing support structure is reasonably
available to the applicant or that the proposed facility will have lesser
impacts than if it were collocated on an existing support structure.
E. Excavation Permit Required. If the installation of the proposed wireless
telecommunications facility involves excavation of the public right-of-way, an
excavation permit must also be obtained pursuant to Chapter 12.08 of this Code.
12.12.060 Standards
A. Location standards.
No person shall install, use or maintain any wireless telecommunications
facility which projects onto, in or over any part of the roadway of any public
street or which rests, wholly or in part, upon, along or over any portion of
the roadway of any public street.
2. No person shall install, use or maintain any wireless telecommunications
facility which in whole or in part rests upon, in or over any public sidewalk
or parkway, when such installation, use or maintenance endangers or is
reasonably likely to endanger the safety of persons or property, or when
such wireless telecommunications facility unreasonably interferes with or
impedes the flow of pedestrian or vehicular traffic including any legally
parked or stopped vehicle, the ingress into or egress from any residence
or place of business, the use of poles, posts, traffic signs or signals,
hydrants, mailboxes, permitted sidewalk dining, permitted street furniture
or other objects permitted at or near said location.
B. Installation standards.
1. The wireless telecommunications facility shall be colored to blend with
other streetscape or surrounding features to the extent feasible.
2. In the event the parkway and/or roadway, where approved, adjacent the
applicant's wireless telecommunications facility disturbed or altered in the
process of installation, the applicant shall restore the parkway to the
condition in which it existed prior to installation.
3. No modifications to an above -ground wireless telecommunications facility,
including those related to size, color, and shape of the housing, may be
made by the applicant without first having obtained approval from the
director.
4. The applicant shall place all existing or proposed equipment cabinets or
other equipment not mounted to a pole below ground whenever feasible.
If equipment is ground -mounted, the equipment shall be setback at least
two feet from the edge of the sidewalk and shall be screened from public
view, to the extent feasible.
5. All equipment and facilities installed shall comply with the Americans with
Disabilities Act for proper clearance distances.
6. The applicant shall obtain the director's approval of a tree protection plan
prepared by a certified arborist for the installation of any wireless
telecommunications facility located within the canopy of a street tree or
within a minimum of a 10 -foot radius of the base of such a tree.
Depending on site specific criteria (e.g. location of tree, size and type of
tree etc.), a radius greater than 10 feet may be required by the director.
7. No wireless telecommunications facility may be illuminated unless
specifically required by the Federal Aviation Administration or other
governmental agencies.
8. An antenna array shall not extend over 7 feet beyond the top of the pole,
unless additional height is required to comply with California Public
Utilities Commission General Order 95 or any subsequent orders of the
CPUC, or unless authorized by a preapproved design.
9. Panel antennas shall utilize brackets that allow no more than a 4 -inch
extension from the pole, unless additional extension is required to comply
with California Public Utilities Commission General Order 95 or any
subsequent orders of the CPUC, or unless authorized by a preapproved
design. Panel antennas shall not exceed the height of the pole unless
authorized by a preapproved design.
10. If an applicant proposes to replace an existing pole in order to
accommodate their telecommunications facility, the replacement pole shall
match the appearance of the original pole to the extent feasible and shall
be approved by the director.
11. No new pole may be installed in the public right-of-way that is more than
10% taller than the average height of existing poles in the right-of-way in
the vicinity of the installation, as determined by the director..
C. Maintenance standards.
1. The permittee shall provide on-going maintenance of its ground mounted,
at -grade or above -grade wireless telecommunications facilities, including
ensuring the facilities are reasonably free of:
a. General dirt and grease;
b. Chipped, faded, peeling, and cracked paint, or on all visible painted
areas;
C. Visible rust or corrosion;
d. Cracks, dents, blemishes, and discoloration;
e. Graffiti, bills, stickers, advertisements etc.;
f. Broken and misshapen structural parts; and
2. Wireless telecommunications facilities shall be maintained such that they
comply at all times with the noise regulations set forth in chapter 8.52 of
the Eastvale Municipal Code
3. All ground -mounted, at -grade, and above -ground wireless
telecommunications facilities shall be properly maintained in accordance
with the following procedures:
a. All necessary repairs, including graffiti removal, shall be completed
by the applicant within 48 hours after discovery of the need for such
repairs or in receiving notification from the director.
b. The applicant shall provide routine maintenance within ten (10)
working days after receiving notification from the director.
C. The applicant shall replace ground -mounted, at -grade, and above-
ground wireless telecommunications facilities, in kind, if routine or
emergency maintenance is not sufficient to return the equipment to
the condition at the time of installation.
D. Hold harmless agreement. Every permittee, and person on a shared permit,
must agree to defend, indemnify, and hold harmless the City of Eastvale, its city
council, officers, and employees to the maximum extent permitted by law, from
any loss or liability or damage, including expenses and costs, for bodily or
personal injury, and for property damage sustained by any person as a result of
the installation, use, or maintenance of the applicant's facilities.
E. Insurance required. Every permittee agrees to maintain public liability insurance,
naming the city as an additional insured, in an amount that meets or exceeds the
minimum levels and standards of liability insurance and claims reserve,
established by the director. This requirement may be satisfied through self-
insurance or an insurance policy from an insurer admitted in California.
12.12.070 Removal and Relocation
A. Emergency removal. The City retains the right and privilege to cut or move any
wireless telecommunications facility located within the public right-of-way of the
City, as the City may determine to be necessary, appropriate or useful in
response to any public health or safety emergency. If circumstances permit, the
City shall notify the permittee and provide the permittee an opportunity to move
its own facilities prior to cutting or removing a facility, and shall notify the
permittee after cutting or removing a small wireless telecommunications facility.
B. Removal of facility for public improvement. Within ninety (90) days following
written notice from the City, a permittee shall, at its own expense, protect,
support, temporarily or permanently disconnect, remove, relocate, change or
alter the position of any wireless telecommunications facility within the public
right-of-way whenever the City has determined that such removal, relocation,
change or alteration, is reasonably necessary for the construction, repair,
maintenance, or installation of any City improvement in or upon, or the
operations of the City in or upon, the public right-of-way.
C. Abandonment of Facilities. The permittee shall notify the City within ninety (90)
days of the abandonment of a wireless telecommunications facility within the
public right-of-way. Following receipt of such notice the City may direct the
permittee to remove all or any portion of the facility if the City, or any of its
departments, determines that such removal will be in the best interest of the
public health, safety and welfare.
D. Damage and Repair. The City may require a permittee to repair all damage to
the public right-of-way caused by the activities of the permittee and return the
public right-of-way to its functional equivalence before the damage. If the
permittee fails to make the repairs within 90 days after written notice, the City
may affect those repairs and charge the permittee the reasonable, documented
cost of such repairs.
12.12.080 Modifications
Any proposed modification to an existing wireless telecommunication facility in
the public right-of-way that shall be reviewed and approved subject to the standard
permit procedure in Section 12.12.050 (small wireless facilities) or section 4.14 of the
Zoning Code (large wireless facilities), unless the applicant claims that the requested
modification is subject to the requirements of Section 6409(a) of the Spectrum Act
(codified at 47 U.S.C. 1455(a)) and the regulations implementing Section 6409(a) (47
CFR 1.40001), which require the City to approve "any eligible facilities request for
modification of an eligible support structure that does not substantially change the
physical dimension of such structure."
Any person seeking City approval of a modification claimed to be subject to the
requirements of Section 6409(a) shall submit to the City an application for modification
that is accompanied by information demonstrating that the proposed modification meets
the eligibility requirements under Section 6409(a). No additional information or
documentation shall be required of applicants claiming coverage under Section 6409(a).
The director shall approve any requested modification that the director determines
meets the eligibility requirements of Section 6409(a) within the same timeframes
provided for in the standard permit procedure in Section 12.12.050.
12.12.090 Design Preapproval
The City Council may preapprove designs for small wireless telecommunications
facilities in the public right of way after considering proposed designs at an open and
public meeting. The City Council may add or remove designs from the preapproved list
at any time. Changes to the preapproved design list shall only impact pending and
future small wireless telecommunication facility permit applications. No existing or
approved facilities shall be required to change its design after permit approval due to a
change to the preapproved design list.
12.12.090 Enforcement
This chapter maybe enforced in any manner authorized under the law, including but not
limited to enforcement via civil, criminal or administrative actions. Remedies under
Section 12.12.070 are in addition to and do not supersede or limit any and all other
remedies, civil, criminal or administrative. The remedies provided for herein shall be
cumulative and not exclusive"
SECTION 2. Repeal of Section 6.08.170, Section 6.08.170 (Telecommunications
service provided by telephone corporations) of the Eastvale Municipal Code is hereby
repealed.
SECTION 3. CEQA Findings. The City Council finds that this ordinance is not subject to
the California Environmental Quality Act (CEQA) pursuant to Section 15303 of the
CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
permits the construction and installation of limited new small wireless
telecommunication facilities within the public right-of-way. As established in Robinson
v. City and County of San Francisco, Section 15303 of the CEQA Guidelines exempts
from CEQA review the installation of numerous small wireless telecommunications
facilities within the public right-of-way and scattered throughout the city. The installation
of larger wireless telecommunications facilities are exempt from CEQA under Section
15303 as well, as established in Don't Cell our Parks v. City of San Diego.
SECTION 4. Severability. If any section, subsection, subdivision, paragraph, sentence,
clause or phrase, or portion of this Ordinance is, for any reason, held to be
unconstitutional or invalid or ineffective by any court of competent jurisdiction, such
decision shall not affect the validity or effectiveness of the remaining portions of this
Ordinance or any part thereof. The City Council hereby declares that it would have
adopted this Ordinance and each section, subsection, subdivision, paragraph,
sentence, clause or phrase of this Ordinance irrespective of the fact that one or more
sections, subsections, subdivisions, paragraphs, sentences, clauses or phrases be
declared unconstitutional or invalid or ineffective. To this end the provisions of this
Ordinance are declared to be severable.
SECTION 5. Publication. The City Clerk is directed to certify to the adoption of this
Ordinance and publish in accordance with law.
PASSED, APPROVED, AND ADOPTED this 12th day of December, 2018.
Mayor
ATTEST: APPROVED AS TO FORM:
rL
? 3
Steven AguiI r, City OClerk Erica Vega, City At
to eyl
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE } §
CITY OF EASTVALE }
, Steven D. Aguilar, City Clerk of the City of Eastvale; California, do hereby certify that
the foregoing City Council Ordinance No. 18-13, was duly adopted by the City Council of
the City of Eastvale, California, at a special meeting thereof held on the 1211' day of
December 2018, by the following vote:
AYES: Council Members Tessari, Lorimore; Yow, Mayor Pro Tem Plott and Mayor Rigby
NOES: None
ABSENT: None
ABSTAIN: None
Steven D. Aguilar, CMC
City Clerk