STAFF REPORT. Ken Hiatt, Community Development & Sustainability Director Michael Webb, Principal Planner

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1 STAFF REPORT DATE: March 20, 2012 TO: FROM: SUBJECT: City Council Ken Hiatt, Community Development & Sustainability Director Michael Webb, Principal Planner Crown Castle DAS Wireless/Cellular Services Infrastructure Network; Planning Application #52-10, Conditional Use Permit #10-10, Zoning Ordinance Amendment #1-10, Appeal #1-12 Recommendation 1. Receive a presentation from staff on the proposed application and legal framework, and 2. Receive public comment, and 3. If feasible, based on the information presented, provide direction to staff on a preferred course of action and/or request additional information to assist the City Council in deliberations, and 4. Continue the hearing to a date certain and direct staff to return with responses to Council questions and/or written findings for formal action pursuant to #3 above. Fiscal Impact All staff time spent reviewing the proposal, including preparation of an EIR, is borne by the applicant. The applicant has paid all the required deposits and application fees associated with review of the proposal and ordinance amendments. The ability for the City to seek lease revenue for facilities proposed in the Right-of-Way, for facilities utilizing City owned land, or use of City owned conduit, is discussed in this report. If approved, the project conditions would require that lease agreement(s) for use of any City owned facilities come back before the City Council as a separate matter prior to project initiation. Contents of Report 1. What is a DAS Network? 2. Project Description 3. Demonstration Poles 4. Background 5. Legal Framework 6. Analysis of Proposal 7. Telecommunications Ordinance Amendments 8. Public Outreach and Input 9. Commission Recommendations and Action 10. Appeal 11. Environmental Analysis 12. Additional Items to be Addressed City Council Meeting 07-1

2 13. Suggested Meeting Format 14. Conclusion and Next Steps 1. What is a DAS Network? As opposed to cellular companies locating antennas on large monopoles or lattice tower structures in and around the city, a Distributed Antenna System (DAS) network creates a grid of smaller scale antennas distributed more evenly throughout the city. The equipment can be located on existing street light poles, on joint utility poles (PG&E) or on stand-alone poles. Typically antennas are located at a height of 35 to 45 feet depending upon topography. DAS networks can typically provide service for up to six cellular companies. The advantages to such a network can include better distribution and consistency of cellular coverage and signal strength throughout the community, with smaller scale and less powerful, but more frequently occurring, equipment. The key challenge to such systems is to locate them within residential areas of the city while minimizing aesthetic impacts both in the short and long-term. 2. Project Description Crown Castle USA, which recently acquired NewPath Networks, is proposing to construct a neutral host fiber-optic cable fed distributed antenna system (DAS) in the City s public right-ofway and on real property owned by the City. Crown Castle is licensed by the California Public utility Commission as a CLEC (Competitive Local Exchange Carrier) to construct the network infrastructure. Crown Castle does not provide wireless services to customers. Rather, they lease infrastructure capacity to various wireless/cellular carriers who, it turn, provide service to paying wireless customers. The proposed DAS network would consist of one hub and 25 antenna nodes. The hub contains all of the computer server hardware and network connection points. The Network utilizes a series of small, low-power antennas called nodes which receive an optical signal from a central hub (located on UC Davis campus property at 17 Arboretum Drive) and distribute the signal in the form of radio frequency (RF) transmissions. The antenna nodes include 17 street light replacement poles, five joint utility wood (PG&E) utility poles, two new wood poles, and one new steel pole that will be interconnected by approximately 102,000 feet of fiber optic cable in a combination of underground conduits and above ground lines (for areas not served by underground utilities). The proposed node designs vary greatly depending upon number of cellular/wireless carriers accommodated. The equipment generally consists of three different proposal options being presented to the City: 1. Multi-carrier Radome (Canister). Antennas enclosed within a cylindrical casing (16 diameter x 72 high) placed at the top of street light poles. At full build-out this design proposal would also encompass flush mounted antennas lower on the pole. At joint utility pole locations the configuration consists of panel antennas mounted to cross arms. This system can accommodate up to six wireless carriers City Council Meeting 07-2

3 2. Tri-sector Pipe. Antennas enclosed within a cylindrical casing (8 diameter x 84 high) placed at the top of street light poles or mounted on cross arms of joint utility poles. This system can accommodate up to two wireless carriers. 3. Omni. Single whip antenna (2 diameter x 48 high) placed at the top of street light poles or mounted on cross arms of joint utility poles. This system can accommodate one wireless carrier. Accessory equipment would be located on the poles, within the poles, or adjacent to the facility in an above-ground cabinet or underground vault. Specific designs and heights vary by location and number of carriers. The fiber optic cable that interconnects the network would consist of both aerial lines and undergrounded in conduit, with approximately 45,500 linear feet of cable installed aerially, and 56,500 feet installed underground (35,500 feet in new conduit and 21,000 feet in leased conduit). The nodes are all proposed in residential areas within the City. The network initially will supply the infrastructure for Newpath s anchor tenant, Metro PCS. Each node would incorporate fiber repeaters which convert digitized spectrum received from the hub into RF signals emitted from the antenna array. In the case of the joint utility or wood pole installations the fiber repeaters are flush mounted on the pole. In the case of new steel or streetlight poles fiber repeaters for up to two providers can be installed inside the pole. This results in a street light pole that appears wider and not as evenly tapered as a standard street light pole. An option has been presented by the applicant where a more typical street light pole design is utilized and the repeater equipment would be housed in adjacent above ground or underground vaults. The proposed multi-carrier DAS system would accommodate antenna infrastructure for six carriers and fiber repeater infrastructure for two carriers (Metro PCS and one other) without the need for additional ground equipment. As carriers 3 through 6 come on to the system, additional fiber repeaters would be required via above ground equipment cabinets and/or underground vaults. The Crown Castle network would provide sufficient signal strength to provide service to indoor users. The following is an excerpt from the applicant project description: City Council Meeting 07-3

4 For the project to be approved would require amendments to the City Telecommunications Ordinance (Article 40.29). Currently, the telecommunications ordinance generally prohibits telecommunications facilities within or adjacent to residential districts, with some exceptions. Furthermore, as DAS technology is relatively new, the ordinance does not differentiate DAS networks from traditional macro monopole or lattice tower sites. For a DAS network to be considered in the City, requires concurrent approval of ordinance amendments to allow for such facilities. A complete application description as submitted by the applicant can be found at 3. Demonstration Poles Three full scale demonstration poles have been installed in the City at the following locations: Site # 5 located at the corner of Burr Street and Arthur Street in West Davis ( Omni antenna with repeater equipment inside the pole and PG&E above ground pedestal) Site # 24 located in the median of East 8 th Street, at the intersection of J Street (multicarrier radome with repeaters for two carriers inside the pole) Site # 22 located on the west side of Mace Boulevard, just south of Redbud Drive ( Trisector pipe with repeaters inside the pole and PG&E above ground pedestal located to the south) City Council Meeting 07-4

5 The intent is to provide a full scale mock-up in an accurate setting in order to better evaluate the aesthetic impact of the poles. The mock poles are not operational in any capacity, with the exception of the street light. They were installed via an encroachment permit process with appropriate mechanism in place to ensure their removal (or permanent installation if ultimately approved) within time certain. A sign is installed at each location with contact information, to explain the purpose of the pole, and to alert residents that it is not operational. Examples of installations of antennas previously installed (but not operational) on joint utility poles can be found at the following locations: Site #10 located on the north side of 8 th Street between C and D Street Site #11 located on the north side of 8 th Street between Simmons Way and M Street Site #15 located on the south side of East Covell Blvd. east of Alhambra Drive Examples of installations of new stand-alone wooden poles previously installed (but not operational) can be found at the following locations Site #13 located in the median between Covell Blvd. and Denison Dr., just east of Birch lane Site #14 located on the north side of Covell Blvd. at the new bicycle undercrossing just west of Alhambra Drive City Council members are encouraged to view some or all of these sites prior to the hearing. 4. Background In 2009, NewPath Networks was seeking installation of a wireless communication Distributed Antenna System (DAS) network in the City. At that time the City issued NewPath 37 encroachment and related building permits for its (DAS) project, which included 24 antenna structures on a combination of both new stand-alone poles and co-location of antennas on existing joint utility poles. NewPath completed some of the installation, including routing fiber optic cable in conduits, installation of some antenna equipment on joint utility poles, and installation of some stand-alone poles. However, before further work ensued, concerns arose around the review process and consistency with municipal code regulations for such facilities. In late November 2009 the City Manager issued a Stop Work Order for all construction on the project. On December 5, 2009, the City Manager rescinded all 37 permits in part, because the project did not follow the review process outlined in the City Telecommunications Ordinance. NewPath appealed the decision to rescind the permits and the City Council held a public hearing on January 19, At that hearing the City Council denied the appeal and adopted a resolution spelling out the findings in support of the rescission of the permits. As part of this action, the Council specifically determined that rescission of the permits would not preclude NewPath from submitting an application for its DAS project pursuant to the procedures set forth in the City's Telecommunications Ordinance. After the appeal hearing NewPath filed a lawsuit in federal district court challenging the revocation and asking for a preliminary injunction to allow it to build out its system. The preliminary injunction was denied. In early 2010, the city filed a complaint against NewPath at the California Public utilities Commission alleging that the environmental review of the City Council Meeting 07-5

6 NewPath Davis project violated CEQA and that the permits were issued in violation of CPUC rules and regulations. In mid-2010, Newpath approached the City and suggested that it would be prepared to apply for permits under the City s Telecommunications Ordinance. Based on the request, NewPath and the City requested that the federal case be stayed until the permit process was completed and the City had determined whether or not to grant permits to NewPath. Similarly, the CPUC case was put on hold. NewPath and the City are providing the case Judge with periodic updates on the progress of the pending CUP application as part of the settlement process. Additionally, NewPath was recently acquired by Crown Castle International. Subsequent discussions between the City and Crown Castle focused on the following key components: 1. Developing a two-stage review process with full public participation and transparency from the outset. The first stage would include a pre-application to gauge preliminary staff and community feedback. This would be followed by a full application submittal to include public hearings. 2. Preliminary discussion of acceptable equipment locations (nodes, antennas, ground equipment). In lieu of stand-alone poles staff and Crown Castle explored the option of installations on existing City street light poles (where the entire structure would be replaced with a new street light with antenna equipment located at the top). 3. Legal review of the code amendments and CEQA review that may be necessary for consideration of a DAS network under a full application. 4. Establishing preliminary and ongoing staff technical review of the proposed installations with a coordinated team approach that includes both Public Works and Community Development staff, among others. Considerations include: aesthetics, engineering, conflicts with city systems, alternative locations, and equipment ownership and liability. 5. Establishing firm dates for removal of certain previously installed equipment (e.g. the Linden Lane pole) as a prerequisite to proceeding with further discussions. The Linden Lane pole was removed on November 10, 2010 to the satisfaction of staff. Pre-application Review On November 15, 2010 Crown Castle submitted a pre-application to the City in order to start preliminary review of a proposed DAS network. The pre-application process was intended to provide the applicant the opportunity to engage in more in-depth conceptual discussions with staff and the community. The pre-application process did not result in any binding decisions or entitlement actions. Rather, it provided a mechanism by which questions, concerns, as well as technical and procedural issues, can be vetted via discussions with the community and staff. Based on the information gathered in the pre-application process the applicant may elect to continue on to a full application submittal. Only a full application process would result in formal entitlement review, public hearings, and binding decisions by the City Council. Over the course of six evenings in mid-january, the City, in conjunction with the applicant, held community open houses in an effort to gauge community feedback on the proposed project. Input was sought on the general concept of a DAS network, as well as specific node locations City Council Meeting 07-6

7 being proposed. The meetings were conducted in an open house format with applicant and city staff representatives available for questions. Meetings were held at the Comfort Suites Hotel for the South Davis node locations, the Veterans Memorial Center for the central Davis locations, and at Harper Junior High for West Davis locations. Each meeting was broken into segments focused on a specific geographic area of the community. While each meeting was geographically focused on a particular set of proposed DAS nodes, citizens were invited to attend any of the meeting sessions in the event that their schedule did not allow them to attend the meeting for their neighborhood. Several members of the Telecommunications Commission and Planning Commission were able to attend one or more sessions. At the outreach meetings comment cards were made available to citizens to provide written feedback and contact information for future use by the City in meeting notifications. The input received is summarized in the table found as part of attachment 8. Concurrently with these meetings staff conducted further review of the proposal for technical, legal, and aesthetic merits. On May 17, 2011, staff presented the City Council with a summary report on the pre-application process. The report summarized the community feedback as follows: A total of approximately 85 citizens attended the six outreach meetings in January. Notice of the meetings was provided via City mailer postcards, ads in the Davis Enterprise, posting on the City project web site, and notification to all Neighborhood Association representatives. The feedback received at the meetings can be summarized as follows: Meeting attendance was intermittent, with several of the sites receiving the bulk of community interest, and some sites not receiving any. Fairly strong support for the concept of providing stronger, more consistent and reliable wireless services in the community. Particular interest was expressed in whether or not specific carriers, such as AT&T, would be accommodated with the proposed DAS system, or if Metro PCS would be the only carrier to be accommodated on the system. Relatively few concerns about aesthetic impacts of proposed nodes, with some, but relatively few and isolated, concerns over the aesthetics of some proposed nodes due to sightlines from homes. Considerable concerns over potential health impacts of RF emissions. Skepticism over the Federal regulations and limits for RF emissions. Concerns about the need to amend the current Zoning Ordinance language that prohibits telecommunications facilities within 500 feet of residential districts. Based on feedback received at the outreach meetings over aesthetic impacts of the preapplication proposal, staff encouraged Crown Castle to evaluate alternative siting and/or design options for the following locations: Site # 4 located on Arlington Boulevard adjacent to Village Homes. Site # 8 located on Oak Avenue, just north of Antioch Drive Site # 19 located on La Paz Drive Site # 23 located on Elmwood Drive City Council Meeting 07-7

8 At the May 17 th meeting, the City Council provided the following feedback: Recognized that Crown Castle will submit a full application to the City for review and action. Agreement that installation of three mock poles should be at proposed sites so that they are done in context (this was completed). A concerted effort should be made to ensure that all residents in the immediate vicinity of the mock pole installation sites are provided with advanced notice of the installation and the purpose of the installation (this was completed). The applicant should make every possible effort to make sites 4, 8, 19, and 23 as least intrusive as possible and that alternatives will be derived prior to the proposal coming before the City Council. Would like to see if joint utility pole sites can be done with a pole-top solution. On May 18, 2011 Crown Castle submitted a full application to the City to initiate a formal review process. 5. Legal Framework Federal Telecommunications Act President Clinton signed the Telecommunications Act of 1996 ("TCA"), Pub. L. No , 110 Stat. 56, into law on February 8, The stated purpose of the TCA is "to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and to encourage the rapid deployment of new telecommunications technologies." T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 991 (9 th Cir. 2009) (quoting TCA, 110 Stat., at 56). In promoting the rapid deployment of new technologies, however, Congress also preserved "the authority of States and local government over zoning and land use matters," subject to enumerated limitations in 47 U.S.C. Section 332(c)(7) of the TCA Id. at 992. Section 332(c)(7) "is actually entitled 'Preservation of local zoning authority' and states as its baseline principle that, 'except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government over decisions regarding the placement, construction, and modification of personal wireless service facilities.'" MetroPCS, Inc. v. City & County of San Francisco, 400 F.3d 715, 727 n.5 (9 th Cir. 2005). The limitations on the City's zoning and land use authority regarding the placement, construction, and modification of personal wireless service facilities are as follows: (1) No Discrimination - The City may not unreasonably discriminate among providers of functionally equivalent services. 47 U.S.C. 332(c)(7)(B)(i)(I). (2) Effective Prohibition The City may not prohibit or have the effect of prohibiting the provision of personal wireless services. 47 U.S.C. 332(c)(7)(B)(i)(II). "[A] locality can run afoul of the TCA's 'effective prohibition' clause if it prevents a wireless provider from closing a 'significant gap' in service coverage." MetroPCS, 400 F.3d at 731. The "effective prohibition" inquiry "involves a two-pronged analysis requiring (1) the showing of a 'significant gap' in City Council Meeting 07-8

9 service coverage and (2) some inquiry into the feasibility of alternative facilities or site locations." Id. (3) Reasonable Time The City must act on any request for authorization to place, construct, or modify personal wireless service facilities within a "reasonable period of time after the request is duly filed taking into account the nature and scope of such request." 47 U.S.C. 332(c)(7)(B)(ii). (4) Denial Must be In Writing Any decision to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record. 47 U.S.C. 332(c)(7)(B)(iii). (5) Preemption of Environmental Effects The City may not "regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's [Federal Communications Commission, or FCC] regulations concerning such emissions." 47 U.S.C. 332(c)(7)(B)(iv). State Law The Legislature has granted the California Public Utilities Commission ("CPUC") the authority to regulate telephone companies under several sections of the California Public Utilities Code. Section 1001 requires telephone corporations 1 to obtain a certificate from the CPUC "that the present or future public convenience and necessity require or will require such construction" of a line, plant, or system. Obtaining a certificate of public convenience and necessity ("CPCN"), however, does not preclude local regulation of the time, place, and manner for locating facilities. A telephone corporation may construct facilities in the public rights of way "in such a manner and at such points as not to incommode the public use of the road or highway." Specifically, Section 7901 provides: [T]elephone corporations may construct telephone lines along and upon any public road or highway, along or across any of the waters or lands within the State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such a manner and at such points as not to incommode the public use of the road or highway [ ]. Section , in turn, expressly grants municipalities "the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed," provided that the control, at a minimum, applies to all entities in an equivalent manner. The Ninth Circuit Court of Appeals issued an opinion on October 14, 2009 holding that Sections 7901 and of the California Public Utilities Code "[do] not prohibit local governments 1 A "telephone corporation" is broadly defined to "include[] every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state." Pub. Util. Code 234. Telephone corporations are a "public utility" "where the service is performed for, or the commodity is delivered to, the public or any portion thereof." Pub. Util. Code 216(a) City Council Meeting 07-9

10 from taking into account aesthetic considerations in deciding whether to permit the development of [wireless communications facilities] within their jurisdictions." Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 725 (9 th Cir. 2009). Crown Castle and City Purview The CPUC designates Crown Castle as a "competitive local exchange carrier" ("CLEC"). A "CLEC" is a telecommunications provider that competes with the already established local telephone providers (known as "incumbent local exchange carriers," or "ILECs") by providing its own network and switching. CLECs developed after the adoption of the federal Telecommunications Act of 1996, which was intended to promote competition among telecommunication providers. Specifically, Crown Castle provides service to wireless communications carriers through the use of DAS facilities, which are comprised of a distributed array of small, low-power antennas individually connected to a central hub. According to Crown Castle, communications to and from wireless subscribers are picked up at the antennas and transmitted through fiber optic cable to the central hub, where they are "handed off" to Crown Castle's clients, who are one or more wireless carriers. It is our understanding that Crown Castle is essentially a "wholesale" provider of wireless facilities for wireless service providers, like MetroPCS or Verizon. In an action between NextG and the City of Huntington Beach, the CPUC recently concluded that a DAS provider with a CPCN (like Crown Castle) is a "telephone corporation" entitled to access the public rights-of-way (PROW) pursuant to PUC 7901, subject to a local government s reasonable time, place and manner authority. See Application of NextG Networks of California,Inc. (U6745C) for Authority to Engage in Ground-Disturbing Outside Plant Construction (CPUC D and D ). The validity of the CPUC s decision is now pending before the Fourth District Court of Appeal, Division 3. The City of Davis has no authority to charge fees or rent for utilizing the PROW, but would have authority to charge rent for use of city owned facilities within the PROW, such as conduit and street light poles. Crown Castle has asserted rights under both the federal Telecommunications Act of 1996 (TCA) and state-law vested rights under Public Utilities Code section An overview of these statutory schemes was provided in the staff report for the October 12, 2011 hearing, but following is a brief overview. TCA The TCA applies to wireless service providers and a wireless service provider can show a violation of the TCA if a local agency s permit denial prohibits a wireless service provider from closing a significant gap in service and that the proposed wireless facility is the least intrusive means of closing the gap. Although Crown Castle has asserted rights under the TCA, it is not a wireless provider. But even assuming the TCA is applicable, Crown Castle has not proven the existence of a significant gap. The information provided indicates a potential penetration coverage gap, but not a significant gap in coverage. Nor has MetroPCS as the wireless provider come forward with respect to less intrusive alternatives, including alternatives outside of the public right of way City Council Meeting 07-10

11 PUC 7901 and Crown Castle has made it clear that it is asserting its right pursuant to its state CPCN to be within the public right of way. Given this assertion, the focus of the City Council consideration will be evaluation of Crown Castle s application under the state statutory scheme in Public Utilities Code sections 7901 and Section 7901 gives particular CPUC-regulated entities the right to construct facilities in the public right of way (specifically, public roads, highways, and waterways), subject to local time, place, and manner control under Section Time, place, and manner control, similar to the least intrusive means analysis under the TCA, allows the City to consider how its public rights-of-way are accessed. Specifically, the Council may consider: o visual and aesthetic impacts of each proposed WTF site and whether the proposals are compatible with neighborhoods (including proliferation of such facilities in the public rights of way), o whether a particular site would incommode the public use of roads and highways, and o whether there are alternative sites within the public right of way that would be less aesthetically intrusive. The primary area for City review of a full application is that of aesthetics of the DAS network. Any decisions to approve, approve with modifications, or deny a telecommunications facility (or any given DAS node) must be based on aesthetic grounds. Essentially, the time, place, and manner of the installation is subject to City review. Pursuant to Federal Law, the City does not have the authority to render a decision against a telecommunication facility based on perceived health impacts, provided the proposed equipment is in conformance with RF emissions limits established by the FCC. According to Crown Castle, the DAS network equipment is typically operating at 0.1% of the Federal safety standard (or 1000 times lower than the threshold established by the FCC). The applicant has submitted required technical RF studies to demonstrate compliance with FCC standards at full build-out. The subject of RF safety was the greatest concern raised by residents during the pre-application outreach. At the outreach meetings, materials were provided explaining RF emissions, the Federal regulations, and the City regulatory purview. However, significant concerns persist with many citizens. While not subject to City review, Crown Castle did offer the services of a third party consultant to perform a baseline RF analysis in the homes of interested residents, at no charge. The analysis provided residents with testing in and around their homes to provide a pre-project baseline of RF emissions. The tests will be repeated after project installation (if approved) to ensure compliance with Federal regulations. RF analysis was performed for ten households. All of those reports have been completed and provided to the residents. New Federal Law Changes Local Zoning Rules For WTFs On February 22, 2012, President Obama signed into law the Middle Class Tax Relief and Job Creation Act of 2012 (H.R. 3630, P.L ) that extended unemployment benefits and the payroll tax deduction. Despite its name, H.R also includes restrictions on siting of City Council Meeting 07-11

12 wireless facilities and changes to the public safety radio spectrum. The bill is effective immediately. Under Section 332(c)(7) of the TCA, local governments have broad authority to control the siting of cellular and other wireless towers, antennas and related facilities. Many California cities and counties have ordinances that govern both the initial placement and modification of wireless facilities. The new law may require changes to those rules. It mandates local approval of certain applications for modification of an existing wireless tower or base station. The new federal legislation provides, in part, that: Notwithstanding [Section 332(c)(7) of the TCA] or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. An eligible facilities request is any modification request that involves collocation of new transmission equipment, or removal or replacement of existing transmission equipment. Basic terms in the legislation, including wireless tower, base station, and substantially change are undefined. With terms such as wireless tower and base station yet to be defined, the impact of the new law is difficult to predict. As such, additional proposed amendments to the Wireless Ordinance have been included to address proposed modifications to existing WTFs see proposed Sections (h) and Analysis of Proposal Antenna Options Crown Castle has presented three primary antenna options for consideration on the street light poles, and four options on the joint utility poles. Crown Castle has indicated that the antenna options do not need to be homogenous throughout the proposed 25 node network (e.g. the options can be mixed and matched). In order to facilitate discussions, the Council may wish to discuss whether certain design options are more or less aesthetically acceptable than others. This will help ascertain whether certain options are eliminated from further discussion, or not. Staff believes that the smaller omni antenna is generally more aesthetically acceptable on the joint utility poles, simply because it is physically smaller and less apt to draw attention as an appendage to these structures. Above ground utilities generally occur in neighborhoods older than Since then, the City has required newer subdivisions to underground utilities. When feasible, the City seeks opportunities to underground existing overhead utility lines (as evidenced by recent efforts to underground utilities in the Downtown). The joint utility poles, in general, tend to be more cluttered in appearance than street light poles. Conversely, street light poles are single purpose streamlined facilities, with occasional traffic signs mounted to them. They are generally uniform in design throughout neighborhoods. An added appendage has a higher likelihood of standing out on street light poles than on joint utility poles City Council Meeting 07-12

13 After further inquiry by staff, as part of the January 16, 2012 supplement submitted by Crown Castle, they describe antenna options for joint utility poles (see examples above) and an option for a standard shape street light pole where radio equipment would be either mounted to the exterior of the pole or located in a ground pedestal. During the pre-application review the City Council inquired as to whether or not antennas could be affixed at the top of joint utility poles. The applicant s response was stated as follows in their response dated January 17, 2012: It has taken persistent staff inquiries for Crown Castle to submit potential design options for smaller antennas. Crown Castle has asserted that such inquiries represent a process that is not properly contained. Staff believes that the City is simply asserting the ability to fully understand the breadth of available options and that the City is not in a position to presume what is feasible from a technology standpoint, so it must rely on the applicant to explain what those viable options may be. The application review and public hearing process is, by its very intent and design, an avenue with which to explore questions and alternatives, and to ascertain comments and concerns about the proposal. Whatever options may be pursued, they must be considered in the context of the very likely event that additional applications for future such facilities will be submitted for the City s consideration. Therefore, the potential cumulative aesthetic effect of such antennas in the community must be considered. Single vs. Multiple Carrier DAS Systems The original six carrier antenna design proposed by Crown Castle (and still stated as their preference) has the benefit of having the capacity to accommodate up to six carriers in one place, albeit with a design that stands out more than the smaller antenna options and is harder to integrate aesthetically into neighborhoods. If multiple carriers contract with Crown Castle to City Council Meeting 07-13

14 utilize such a system, the chances of proliferation of more antennas beyond those proposed by Crown Castle may be reduced. However, there is no guarantee that multiple carriers will go into contract with Crown Castle to utilize such a system. Alternatively, the smaller antenna options, while physically more streamlined, accommodate only one or two carriers. Therefore, the chances of additional applications to install similar networks/antennas is increased. While Crown Castle is the only application under consideration by the City at this time, the City Council must consider the long term cumulative ramifications of amending the telecommunications ordinance to accommodate DAS systems. Property Values and Noise Some of the public comments received at the August and October 2011 Planning Commission hearings expressed concerns regarding the proposed WTF sites on property values and potential noise impacts. Crown Castle has provided a report by Tarantello & Associates regarding impact on property values. The City may only assert impact on property values as grounds for denial of any WTF site if there is evidence rebutting the Tarantello & Associates report. The courts have clarified that fear of property value depreciation based on direct or indirect concerns related to RF health effects does not constitute substantial evidence to support denial. See AT&T Wireless Servs. of Cal., LLC v. City of Carlsbad, 308 F. Supp. 2d 1148, (2003). Similarly, generalized concerns related to noise does not constitute substantial evidence, particularly if the proposed WTF would be required to comply with the City s noise ordinance. See id. The noise analysis submitted by Crown Castle indicates that the proposed equipment would fall well under noise thresholds established in the City Noise Ordinance. Antenna Technology Advancements One of the key issues to be considered by the City is whether there are emerging antenna technologies that would allow for a smaller profile and/or further concealment and therefore, easier integration into neighborhoods. As with most technologies, this field is in a perpetual state of evolution and advancement. At the October 12, 2011 Planning Commission hearing, a member of the public inquired about news of a new antenna being introduced by Lucent Technologies, called the LightRadio cube antenna. The new antenna technology is comprised of a 2.3 inch square block. Staff has consulted with Jonathan Kramer (technical consultant to the City Attorney on telecommunications technology). This new technology is currently being tested in trials and may be available in the market in However, it is unknown how many cubes would be necessary to build a robust community network. It may require stacking multiple cubes within a cylinder to accomplish similar levels of service. Time will tell how technologies, such as this, will influence future antennas. Mr. Kramer has also affirmed that shorter Omni or whip antennas could be utilized in a DAS network, but it would likely require more of them to accomplish similar service levels. As is the trend with most technology, size and cost tend to decrease while reliability increases. Given the evolving nature of antenna technology, it may be prudent for the City to consider term limits on CUP s issued for new telecommunications equipment, especially with respect to WTFs that are in closer proximity to residential uses, so that infrastructure in the community keeps up with current technology in an effort to minimize visual impacts. This is discussed in more detail under the telecommunications ordinance topic below City Council Meeting 07-14

15 7. Telecommunications Ordinance Amendments The City Zoning Ordinance contains a chapter with regulations for review and approval of telecommunications equipment (aka the telecommunications ordinance). The ordinance requires a Conditional Use Permit for new facilities, or expansions of facilities, with public hearing required at the Planning Commission. The ordinance also regulates the acceptable locations for siting telecommunications equipment, including distances from residential and school uses, encouragement of co-locating equipment onto single facilities whenever possible, and minimizing (or stealthing ) equipment as much as possible. As currently structured, the telecommunications ordinance prohibits locating new telecommunication facilities within 500 feet of a residential district. An exception is made for facilities that are within neighborhood shopping centers where the antennas and equipment are fully stealthed within the building elements. There are several antennas within the clock tower of the Westlake Shopping Center, for example. Until recently, most facilities were of the larger scale, or macro varieties, which are generally not aesthetically compatible with residential areas. With the 500 foot requirement, the resulting telecommunications sites in Davis are located on the outer edges of the community or along the I-80 corridor. Attachment 3 provides a map of the existing cellular towers and outlines those areas where facilities are allowed to locate (based on the current ordinance) subject to approval of a Conditional Use Permit. A resulting side effect of the 500 foot provision is the potential for weaker signal strength in more central residential portions of the community. A DAS network attempts to provide greater wireless service within residential areas in a manner that is more aesthetically compatible than macro sites. However, at the time that the current telecommunications ordinance was drafted, DAS did not exist. Therefore, the city s telecommunications ordinance does not differentiate DAS from macro facilities and therefore DAS facilities are subject to the 500 foot requirement as the ordinance is currently structured. To consider the Crown Castle application, amendments to the telecommunications ordinance would be required. Staff and legal counsel have developed the attached ordinance amendments to allow for consideration of DAS network equipment within the City. The proposed amendments to the Telecommunications Ordinance are summarized as follows: Specifically incorporates DAS systems into definition section to clarify that DAS systems are wireless telecommunication facilities (WTF) subject to the City's Wireless Ordinance. Revises the complete ban on WTFs in, and within 500-feet of, residential, school zones, and public parks to provide limited exceptions for certain WTFs in the public right-ofway (PROW) and on city-owned property, subject to the City's CUP process. Adds additional CUP design standards for PROW facilities, including the requirement that applicants possess a valid grant of authority to occupy the PROW, such as a Certificate of Public Convenience and Necessity (CPCN) issued by the CPUC. Combines provisions regarding compliance with federal RF emissions into one section and adds specific RF monitoring requirements, including an annual reporting requirement, to ensure that WTFs comply with then-applicable FCC regulations. Adds additional provisions to clarify existing expectations regarding the applicant's indemnification of the city, as well as abandonment and relocation of WTFs City Council Meeting 07-15

16 Minor clean-up revisions throughout to create greater consistency and simplification regarding application of the Wireless Ordinance to WTFs (as opposed to trying to distinguish between telecommunication towers, projects, sites, etc.). Additional details of the proposed ordinance amendments are outlined below: Monitoring Requirements. The current draft amendment language attached to this report includes monitoring and reporting requirements and seeks to clarify and simplify the requirements. Where the ordinance previously allowed the City to request RF monitoring reports to ensure compliance with FCC standards, the new language requires filing of annual reports both for existing and new facilities. An alternative viewpoint expressed by the Telecommunications Commission suggests that it may be too costly and onerous a requirement to require existing facilities to provide such reports and that the FCC monitoring should suffice, especially given how far below the FCC standards the facilities typically operate at. Some telecommunications companies may contend that filing such monitoring reports is time consuming, expensive, and unnecessary, especially when applied to existing telecommunications sites where those operating costs had not previously been accounted for. However, staff will note that the current ordinance allows the City to request this information of them even now. Staff believes that administration of receiving and reviewing such monitoring reports is simplified if all facilities (existing and new) are subject to the same requirements. Furthermore, we do not believe that the community is prepared to forego all compliance monitoring in favor of FCC monitoring. Parks/Greenbelts. The current ordinance prohibits telecommunications facilities from locating in Parks or Greenbelts. Staff believes that it may be time to re-visit these areas as possible inclusion areas. Parks, and to a lesser extent Greenbelts, often present opportunities to co-locate on light standards and other tall structures, and can present options for new telecommunications facilities that present minimal aesthetic impact to the community if placed appropriately so as not to impact visual corridors or views from adjacent homes. Civic Center Park, for example, is a site suggested by Commissioners as a possible co-location site for the Crown Castle proposal. Greenbelts, due to their narrow corridor-like features and shorter light poles may be more difficult to site. However, certain greenbelt locations may be appropriate, such as site #14 on the north side of Covell Boulevard adjacent to the new bicycle undercrossing. An option to consider would be to allow consideration on greenbelts only in areas not immediately adjacent to homes to ensure visual compatibility. Abandoned Equipment. The ordinance amendment clarifies requirements for unused or abandoned telecommunications equipment and the timelines, procedures, and financial responsibilities for removal of equipment. CUP Term Limit. Due to the evolving nature of telecommunications antennas and equipment, many jurisdictions have imposed term limits on telecommunications CUP s. Term limits provide an effective means of ensuring that the infrastructure is as least intrusive and cutting edge as possible. A term limit on a CUP would require the complete removal of equipment at the end of the term, unless the CUP is renewed or extended prior to the end of the term. Ten years is the minimum permissible term limit City Council Meeting 07-16

17 that has been upheld by the courts. While the City always has the ability to place a CUP term limit condition on a project, the ordinance language specifically calls this out as a possibility. For the Crown Castle proposal, staff recommends that a ten year term limit be established as a condition of any approval. Antenna and Equipment Dimensions. Prior versions of the draft ordinance called out specific dimension envelopes that antenna equipment must fall within. The current amendment proposal leaves a placeholder for this which would be filled in prior to final City Council action. Ground Equipment. In accordance with the Telecommunications Ordinance, the preference of the City is to place ground equipment in underground vaults whenever feasible. While undergrounding the equipment would be the baseline requirement, there may be cases where undergrounding is not feasible due to soil, water table, or space constraints. Crown Castle has proposed that ground mounted equipment may be housed in cabinets that can have a variety of architectural treatments to blend in as best as possible with the surroundings. Crown Castle has expressed that they will underground equipment wherever feasible. However, Crown Castle has not expressly stated at which sites this may or may not be feasible as that level of site analysis has not yet been performed. The proposed ordinance amendments would require no further review if equipment is undergrounded. However, if site(s) cannot accommodate undergrounding, review and approval by the Planning Commission would be required on a site-by-site basis to confirm the infeasibility of undergrounding and the aesthetic compatibility of the above ground alternative. For the joint utility pole locations, the equipment has been proposed to be mounted on the pole itself. The Council would need to discuss whether this is acceptable in these circumstances or if equipment at such locations should also be placed underground. The proposed ordinance amendments currently do not distinguish ground equipment between the joint utility poles and other facilities. Therefore, equipment on joint utility poles would also be required to be undergrounded as the ordinance is currently structured. Electrical Service. Staff believes that the placement and size of required electrical meters may influence this discussion further as the meters cannot be placed underground. If electrical meters are required, staff believes that more streamlined ground pedestals or pole mounted options should be explored. If a ground pedestal is the preferred option, integrating the meter with an above-ground radio equipment cabinet may be less visually obtrusivethan having an electricmeterpedestal and an underground radio equipment vault. Staff is working with PG&E to assess the full range of electric meter placement options with a goal of minimizing the overall aesthetic impact and size of the facility and arriving at a mutually agreeable solution. Staff will provide a verbal update to the Council on March 20 th City Council Meeting 07-17

18 Separation of Nodes. The ordinance amendments incorporate language to help ensure that DAS facilities do not create negative cumulative aesthetic impacts on the City, by establishing a minimum separation between any given DAS type facility (¼ mile, 1300 feet), with a provision that a lower distance could be considered by the Planning Commission on a case-by-case basis only if it can be demonstrated that the cumulative visual impacts are not significant and that the facility is necessary to provide services not possible with co-location on an existing facility. The benefit of this approach is that it helps to avoid over-concentration of facilities in any given area and minimizes visual impacts of multiple facilities within typical view sheds. Furthermore, it provides flexibility to consider alternatives, but only if specific findings can be made by the Planning Commission. A potential drawback of this approach is that it may pose challenges to unknown future facilities locating in City and could make the City more vulnerable to legal challenge of the ordinance. All of the proposed Crown Castle nodes would comply with the proposed ¼ mile separation, with the exception of node site #8 which, as proposed, is less than ¼ mile from the closest adjacent node (0.21 miles from node #23). 8. Public Outreach Since submittal of the full application in May, 2011, staff engaged in the following additional outreach measures: The City held an open house for review and input on the full application submittal on May 23, This provided an opportunity for the public to review the full application documents, particularly any proposed changes from the pre-application. This also provided an additional venue for general questions about the proposal and the City review process. Approximately twenty attended, with many having attended prior meetings during the pre-application. Engagement with the City Telecommunications Commission on several occasions. The feedback received is summarized in the Commission Review section of this report. Additional neighborhood outreach was conducted on the four node sites noted above, with particular emphasis on sites #4, #8, and #19, where a majority of neighborhood concerns were raised. Public Outreach / Noticing The following notifications were provided during the pre-application review and the full application: Mail 500 foot radius mailing list established around each of the 25 proposed DAS nodes, as well as Neighborhood Associations. Mailings for pre-application open house meetings Mailings for full application open house meeting Mailings for mock pole installations Public hearing notices for Planning Commission public hearings City Council Meeting 07-18

19 Establishment of an distribution list to notify of all meetings and hearings Internet Establishment of a City web site with a chronological history of all City actions, meeting dates and notices, reports, and application materials at: Newspaper ¼ and 1/8 page Ads posted in Davis Enterprise for all public meetings and hearings Door Hangers Door hangers distributed around each of the three mock pole installation sites prior to installation advising neighbors ofthe installations, the reason for the installations, construction schedule, and contact information. Community interest and engagement during the application review picked up considerably as the Planning Commission hearings drew closer. Significant written correspondence has been received, including several petitions in opposition to the proposed DAS network. Additionally, each of the four Planning Commission hearings drew considerable public interest and public comment. While several comments do discuss concerns related to health, which the City cannot consider, many comments, including a petition signed by over 500 individuals, have expressed strong opposition to the aesthetics of the proposed facilities. As opposed to the street light proposals, relatively few specific public comments have been received regarding the joint utility poles (sites 1, 10, 11, 15) or the proposed stand-alone pole locations (sites 13, 14, 17). All written correspondence submitted to date is found in attachment 8. Additionally, the Planning Commission minutes found in attachment 6 provide details of the public testimony provided at the Commission hearings. 9. Commission Reviews and Actions Telecommunications Commission The Telecommunications Commission has met to receive updates on the proposal, and to provide general input on the proposed DAS network. Commission feedback can be summarized as follows: o Ordinance amendment should be structured to prevent DAS nodes from being proposed on every street light and utility pole due to cumulative aesthetic impacts. o Lower income households could benefit from improved wireless services o Power (and RF exposure) emanating from phones or handheld devises is lower if there is a good signal could be a positive of DAS. o City ought to consider the likelihood of multiple carriers signing on to system (other than Metro PCS). o Additionally, specific feedback was provided on the proposal and proposed ordinance amendments City Council Meeting 07-19

20 The Telecommunications Commission feedback is summarized in attachment 5, along with staff responses to each comment. At their March 7, 2012 meeting, staff provided the Telecommunications Commission with an update on the project proposal and timing of proceeding to the City Council. Planning Commission The Planning Commission held four public hearings on this application on August 3, 2011, October 12, 2011, January 25, 2012, and February 8, A brief summary of the hearings is provided below. Minutes from the hearings are found in attachment 6 of this report. On August 3, 2011, the Planning Commission held a public hearing for consideration of the Crown Castle application. At that hearing the Commission received staff presentation, received public comment, and began deliberations on the application. The Commission determined that additional information would assist in Commission deliberations prior to rendering a recommendation to the City Council. Furthermore, while not necessarily the consensus of the Commission, individual Commissioners provided preliminary feedback on specific antenna sites and the proposed ordinance amendments for the applicant and staff to report back with. Some Commissioners also expressed a more fundamental concern with the overall community compatibilityof the designs presented. The Commission continued the hearing to September 14 th, which was subsequently continued to October 12 th to afford the applicant additional time to respond to the Commission request. On October 12, 2011, the Planning Commission held a second hearing. In large part, this hearing was intended to provide additional background information and to present Crown Castle s response to comments received at the August 3 rd hearing and additional inquiries by staff. On October 4, 2011 Crown Castle submitted their response packet with a presentation of options on the 14 sites that Planning Commissioners noted on August 3 rd. While there were specific requests by the Commission to have Crown Castle explore alternative locations (such as Westlake shopping center, Civic Center Park light standards) the alternatives evaluated by Crown Castle remained focused on sites located within the Public Right-of-Way. The options presented by Crown Castle focus primarily on providing alternative antenna designs and alternative locations in close proximity to the original proposal. Images of the alternative designs presented are contained in the application booklet presented to the City Council. Staff Analysis of Design Options Presented by Crown Castle on October 4, 2011 Design Option Description Staff Reaction Originally Approved Design The locations and designs of the equipment originally intended for installation by NewPath Networks in 2009 before permits were revoked. NA Design Option 1 (original design) These are the design options that were presented by Crown Castle as the proposed project for the August 3 rd Planning Commission NA City Council Meeting 07-20

21 Tapered Cone Full Canister Single Carrier Steeple hearing. This design option is intended to emulate the cone shaped PG&E transformer design found in Davis. The transformer design is one found in South Davis at a few locations on Chiles Road and El Macero Drive which were constructed in the 1970 s. The dimensions of the tapered cone design are not provided. This design would accommodate four carriers. This design extends the cylindrical enclosure downward to enclose the lower flush mounted antenna panels, resulting in a canister of 9 feet tall by 22 inches in diameter. This design option eliminates the lower flush mounted antennas from the street light design and encloses the single antenna array within a more narrow, lower profile canister. Crown Castle states that the canister is six feet in height and only 19.5 inches in diameter, resulting in a significantly slimmer profile. This design would accommodate four carriers. This design encloses the antennas within a steeple or Spire shaped cylinder on a stand-alone pole with Not appropriate. The transformer design being emulated occurs only in very limited locations in South Davis. Where they do occur they are located on top of PG&E poles, not on standalone street light poles. The design may only be considered appropriate if applied in the context of where these transformers exist in the community. The only node close to such a transformer is site #19. Not appropriate. This design exaggerates the incongruity of the original pole-top design and adds even more bulk and mass to the top of the pole. Especially questionable when it is not known if carriers will utilize full breadth of antennas. Insofar as the canister is not any lower on the poles, the design is not less obtrusive, and perhaps more so as it has the appearance of protruding higher than the original design. In point of fact, the proposed single carrier canister is not smaller, but is actually larger than the one it replaces which was six feet tall and only 16 inches in diameter. This design may facilitate lower aesthetic impact, but only if mounted lower on the pole. Further, this design is not a single carrier design since it would accommodate four carriers. Not appropriate. This design has no relationship to the surroundings, architectural City Council Meeting 07-21

22 dark coloring. No dimensions are provided. This design would accommodate four carriers. themes of adjacent areas, or street lights or utilities. This design would draw attention, rather than blend in. The staff analysis presented to the Planning Commission for the October 12 th hearing conveyed staffs belief that the applicant had failed to present viable design or location alternatives that would significantly reduce the aesthetic impacts of the proposed system. The afternoon of the October 12, 2011 hearing, and in response to the staff report, Crown Castle submitted a letter expressing interest in exploring two smaller antenna options (the omni and tri-sector pipe ). The Commission received public comment, asked clarifying questions, but ultimately continued the hearing to afford an opportunity for staff, the public, and Commissioners to better understand the options presented by Crown Castle that evening. At the third hearing on January 25 th, the Planning Commission was presented with additional details and analysis of the new antenna options submitted by Crown Castle. The Commission also received additional public testimony, as the public had not had an opportunity to comment on the omni or tri-sector pipe proposals. Commissioner comments (not necessarily consensus): - Not convinced that Crown Castle can t co-locate along with other existing carriers that are on existing cell towers in Davis. - Concerned tonight that if we don t collocate on these proposed sites then in the future it could create a proliferation with more sites in the ROW which could be worse. - What are the obligations of the applicant to demonstrate their need here? Can we demand a better demonstration of the need? There has not been a satisfactory proof of need here. - We are conceding and not looking at noise concerns and loss of property values. We should look at evaluating or studying that aspect first. - Concerned with whether we have to make specific comments on design and on specific sites even if we deny the project outright because it doesn t conform with the ordinance. - Concerned if the CUP was approved because of the interpretation of the law and if we found out later that was incorrect, could we condition it so that we could stop the permit then and make the applicant remove the equipment. - If we are going to be making changes to the ordinance, we should bring all the carriers to the table immediately so we can take a look at all the issues in a global manner. - The sense from the community is to have the use be on macro towers. In the areas where there are macro towers and collocation opportunities, suggest we require they be placed on the macro towers in that neighborhood. For the neighborhoods that macro towers do not provide sufficient coverage, then we allow a DAS with very strict aesthetic considerations and rules/regulations so we get the coverage that is needed met. And we respect our existing ordinance and uphold what we heard tonight, which is preference for macro rather than DAS. - The poles that are within view of second story windows are problematic. - It is not clear why more of the equipment can be put underground other than the reason of cost City Council Meeting 07-22

23 At the conclusion of the meeting, the Commission passed a motion to continue the hearing and direct staff to return on February 8 th with findings for denial. At the January 25 th hearing, the Planning Commission also wished to pass on the following comments to the City Council Chairperson Frerichs asked that comments made in the previous two hearings be passed on to the Council as still current comments on the sites, such as Site #2 which is not acceptable. On design, Commissioner Braly favored the original design for all the sites because it allows for collocation. It may not be as aesthetically pleasing but in his opinion it is not that different. On location, he supported the alternative locations suggested by the applicant and would like to see on February 8th which sites would have the most public support. Vice-Chairperson Hofmann said he had a concern with any pole extension. Commissioner Philley said anything that could be collocated within 500 feet of an existing stealth facility which would be Site #2, Site #5, Site #6, Site #9, Site #11, and Site #24. Also Site #4, there should be no new light pole there because the neighborhood doesn t have a lot of them and it is not characteristic. So, the antennas should be put on an existing pole. Commissioner Choudhuri said that the suggested alternative locations as listed in the August 3, 2011 minutes still stands as a recommendation. Commissioners agreed. Commissioner Whittier preferred the Tri-sector antenna on the pole because it was less obtrusive. Commissioner Hanson said the public stated that they preferred the Omni whip antenna so that should be noted. Also, she said in general from the comments tonight, the antenna poles within 500 feet of a house are aesthetically more objectionable as well as ones seen out second story windows. Commissioner Braly supported the staff recommendation on undergrounding; careful siting of poles in parks and greenbelts and not adjacent to homes; the ten-year limit; prefer pole mounted electric meters instead of pedestal and LED lighting for street lighting. At the February 8, 2012 hearing, the Planning Commission voted to deny the proposed project in its entirety. The key elements of the findings for denial can be summarized as follows: 1. That a significant gap in service had not been adequately demonstrated to necessitate the proposed system City Council Meeting 07-23

24 2. The design options presented did not present the least intrusive means of fulfilling the purported need for better coverage and would be a significant negative aesthetic impact on the community. The detailed findings are found in attachment 7. As part of their motion the Commission also wished to forward the following comment to the City Council: Commissioner Boschken said there was ambiguity in the term Significant Gap in Coverage. There may or may not be a cumulative gap if you add up all the competitors and their infrastructure; is there a gap or not. There may be a gap for one individual carrier such as Metro PCS as an individual firm. That would be a gap for an individual firm in the market as affecting their competitiveness which is different than a cumulative gap. The third gap would be if Davis residents are using cell phones and which particular product they use, do they experience a gap. Is there a gap at all and where does it lie? The Council should recognize that there are three different and conflicting meanings to interpret for the word gap. Potentially there is no evidence of a gap in any of the three interpretations of the word. At the February 8 th hearing the Planning Commission also discussed recommendation on the Telecommunications Ordinance. By Commission Consensus they wished to provide the following comments and suggestions to the City Council: Planning Commission Comments regarding the Telecommunications Ordinance: - All the carriers should be involved when the ordinance is amended. - Assume the City Council would follow a public process in updating or revising the ordinance. Public comments from people such as Terry and Mike Leonard have important concerns with uses in residential areas and the proximity to commercial areas. - Aesthetics should definitely be taken into account in any proposed ordinance. Would like the City Attorney s opinion on whether we need to revise the ordinance if we don t have anyone proposing anything that is inconsistent with the ordinance now. - Should be careful about using the parks and greenbelts as alternatives; we should protect those visually. - In terms of changing technologies, we need to continue to evaluate our ordinances and update them but concerned at this time with changing the ordinance with this current proposal. We need to step back and evaluate the ordinance as a separate action and not at the same time with a new proposal. - What is missing in the discussion of this proposal is the understanding of what Davis needs are as we go forward with economic development and attract high tech firms for broadband. The applicant didn t demonstrate a gap in coverage which is true. But there may be needs that the City has and the needs have not been entered in to the discussion. - Has the City ever done a plan for the City in Broadband? - In order to consider these proposals now and in the future, the City Council should do a needs analysis now. - Just recently came back from a Smart growth conference that showed that the cities that were investing in their infrastructure and making great places to live were the ones that City Council Meeting 07-24

25 were successful. Oklahoma City passed a sales tax to do Public Works and other infrastructure projects. Infrastructure includes telecom infrastructure. If Davis is going to be a tech center, we need to support that with good telecommunications policy. The infrastructure needs to be done in a careful way. Success of a community is aesthetics. Recommended to the Council to start a process and it be inclusive of everyone in the community so that we can attract the technology firms and assets to make Davis a 21 st Century city. - We have a Telecommunications Ordinance and we do need it updated. But on this project, the individual applicant is asking approval by changing the ordinance. We need to step back and not skew the Ordinance just to make it work for one applicant; we could open ourselves up to problems. - It is time for the City Council to look at revising the Telecommunications Ordinance but with a real open process for all of Davis. 10. Appeal On February 2, 2012 Crown Castle filed an appeal of the Planning Commission action. The appeal was filed after the January 25, 2012 Planning Commission hearing, but prior to the PlanningCommissionadoption offormal findings onfebruary8,2012. Duringthe preapplication review, it was determined that the full application proposal would come before the City Council in any event. As the appeal was not necessary to bring the matter before the City Council, we can only presume that the applicant filed the appeal to go on record as their formal objection to the Planning Commission action. 11. Environmental Analysis For the DAS network itself, the lead agency for environmental review under CEQA is the California Public Utilities Commission, not the City of Davis. Pursuant to General Order 170, the CPUC has determined that DAS networks are Categorically Exempt from environmental review under CEQA. Crown Castle has submitted documentation to the CPUC for the Categorical exemption. Separate and apart from the environmental determination on the DAS network itself, any amendments to the City Municipal Code would also be subject to environmental review. The City is the lead agency for the scope of the code amendments. Staff and legal counsel recommend that the ordinance amendments be found Exempt from Environmental Review pursuant to Section as a Minor Alteration in Land Use Limitations. 12. Additional Items to be Addressed: Logistics of installations within the City right-of-way (as most of the installations are proposed on City-owned street lights) are also subject to City review and will require coordination and agreement on the following: 1. Ownership of poles (City or Crown Castle?) 2. Responsibilities for pole repair or replacement 3. Type of light fixture to be installed (Upgrade to LED, for single light or entire block for lighting consistency) 4. Whether light fixtures on street lights in the vicinity of the DAS node should also be upgraded to LED fixtures to ensure consistent light quality within a neighborhood City Council Meeting 07-25

26 5. Lease agreements where stand-alone poles are proposed on city property (site # 17 at the City well in Mace Ranch and site #14 north of Covell Boulevard), and for utilization of city conduits. 13. Suggested Format for City Council Hearing Staff recommends that the City Council consider the following format for the March 20 th proceedings. Ultimately, however, the Council will determine what format it believes will be most productive on the 20 th. 1. Receive staff and city attorney presentation of proposal and legal framework 2. Receive public input 3. Questions of staff/applicant 4. Council discussion 5. Direction to staff to return with additional information and/or findings for formal action 14. Conclusion and Next Steps The City Council has been presented with a substantial volume of information to digest and understand. Currently, staff is not in a position to presume what the conclusions and recommendations of the Council may be. However, we do believe it is necessary to begin the process of drawing conclusions in an effort to bring this application to a close. To that end, we recommend that the Council begin deliberations on the proposal, and direct staff to return at a future hearing with responses to Council questions and, if appropriate, proposed written findings and conditions for formal action. Attachments 1. Crown Castle Application Documents: due to volume of materials, please see: 2. Site Evaluation Table 3. Telecommunications Facilities Map 4. Draft Telecommunications Ordinance Amendments (redline and clean versions) 5. Telecommunications Commission Comments and Staff Response 6. Minutes from Planning Commission Hearings 7. Planning Commission Findings for Denial (February 8, 2012) 8. Public Correspondence - May be viewed at the City Clerk s Office, 23 Russell Blvd, Ste City Council Meeting 07-26

27 ATTACHMENT 2 Possible siting aspects to consider may include, but are not limited to, the following: - Street type (arterial, collector, local, other). - View from second story windows and viewsheds. - Pole height or (%) increase in height over existing structure. - Vegetative backdrop/screening. - Introduction of new vertical element. * Indicates alternative design options on street light poles for the Whip antenna and Tri-Sector Pipe antenna. 1 Indicates alternative design options on joint utility pole for the single cross arm with the upright Whip antenna or upright Tri-Sector Pipe antenna or double cross arms with original down-hanging antennas, as shown in supplemental materials received December 15, Indicates alternative design options on joint utility pole with flush-mounted antennas or Tri-Sector Pipe antenna at top, as shown in supplemental materials received January 16, Site # Location Description Pole Type View from Second Story Street Type Existing Pole Height & Height Increase (% change) A) Whip Antenna Option B) Original Option with Radome Enclosure C) Tri-Sector Pipe Option Vegetative Backdrop/ Screening of Antennas New Vertical Element Other Notes? 1 South side of Covell Blvd west of Lake Blvd 2* SE corner Arlington Blvd and Lake Blvd. Joint Utility Pole Street Light No Major Arterial Existing Pole Ht.: 48 Height Increase: None No Collector Existing pole ht.: 30 Height Increase: A) Whip: 8 (27%) B) Proposed: 10 (33%) C) Tri-Sector: 11 (37%) Moderate Tree Cover Sparse Tree Cover No No Location Alternative 2 Street Light No Collector No Information Provided Moderate Tree Cover No City Council Meeting 07-27

28 Site # Location Description 3* West side of Marina Circle, north of Bermuda Ave. 4* East side of Arlington Blvd., north of Calaveras/Western esse Location Alternative 2 Location Alternative 3 (New Location on Westernesse) 5* South side of Burr St., west of Arthur St. Pole Type Street Light Street Light Street Light Street Light Street Light View from Second Story Street Type Existing Pole Height & Height Increase (% change) A) Whip Antenna Option B) Original Option with Radome Enclosure C) Tri-Sector Pipe Option Vegetative Backdrop/ Screening of Antennas Yes Collector Existing Pole: Height Increase: A) Whip: 9-2 (32%) B) Proposed: 11-2 (39%) C) Tri-Sector: 12-2 (42%) Sparse Tree Cover Yes Minor Arterial New Pole Height: 40 A) Whip: 38 B) Proposed: 40 C) Tri-Sector: 41 Moderate Tree Cover Yes Minor Arterial Yes Local Street No Information Provided Sparse Tree Cover No Information Provided Sparse Tree Cover No Local Street Existing Pole Ht.: 25 Height Increase: A) Whip: 8 (32%) B) Proposed: 10 (40%) C) Tri-Sector: 11 (44%) Sparse Tree Cover Attachment 2 - Page 2 New Vertical Element No Yes No No No Other Notes? City Council Meeting 07-28

29 Site # Location Description 6* Russell Blvd. center median, west of Elm Ln. 7* South side of W. 8 th St., east of Pine Ln. 8* SW corner Oak Ave. and Antioch Dr. Location Alternative 2 Location Alternative 3 Pole Type Street Light Street Light Stand Alone Pole Street Light Street Light View from Second Story Street Type Existing Pole Height & Height Increase (% change) A) Whip Antenna Option B) Original Option with Radome Enclosure C) Tri-Sector Pipe Option Vegetative Backdrop/ Screening of Antennas New Vertical Element Yes Major Arterial Existing Pole: 28-8 Height Increase: A) Whip: 8 (28%) B) Proposed: 10 (35%) C) Tri-Sector: 11 (38%) Sparse Tree Cover No No Minor Arterial Existing Pole Ht.: 25 Height Increase: A) Whip: 8 (32%) B) Proposed: 10 (40%) C) Tri-Sector: 11 (44%) Moderate Tree Cover No No Corner of Collector & Local Street New Pole Height: 40 A) Whip: 38 B) Proposed: 40 C) Tri-Sector: 41 None Yes Yes Collector No Information Provided None No Yes Corner of Collector & Local Street No Information Provided None No Attachment 2 - Page 3 Other Notes? City Council Meeting 07-29

30 Site # Location Description 9* East side of A Street, south of 7 th Street 10 North side of E. 8 th St., east of D St N. side of E. 8 th St., west of M St. Location Alternative 1 12* East side of Pole Line Rd., south of Loyola Dr. Location Alternative 2 Pole Type Street Light Joint Utility Pole Joint Utility Pole Traffic Signal Street Light Street Light View from Second Story Street Type Existing Pole Height & Height Increase (% change) A) Whip Antenna Option B) Original Option with Radome Enclosure C) Tri-Sector Pipe Option Vegetative Backdrop/ Screening of Antennas New Vertical Element No Local Street Existing Pole Ht.: 30 Height Increase: A) Whip: 8 (27%) B) Proposed: 10 (33%) C) Tri-Sector: 11 (37%) Moderate Tree Cover No Yes Minor Arterial Existing Pole Ht.: 43 Height Increase: None Sparse Tree Cover No Yes Minor Arterial Existing Pole Ht.: 47 Height Increase: None Sparse Tree Cover No No Minor Arterial No Information Provided None Yes No Minor Arterial Existing Pole Ht.: 30 Height Increase: A) Whip: 8 (27%) B) Proposed: 10 (33%) C) Tri-Sector: 11 (37%) None No No Corner of Minor Arterial and Collector No Information Provided None No Attachment 2 - Page 4 Other Notes? City Council Meeting 07-30

31 Site # Location Description 13 2 Median between E. Covell Blvd. and Denison Dr., just east of Birch Ln. 14 North side of E. Covell Blvd., adjacent to new bicycle undercrossing 15 South side of E. Covell Blvd., east of Alhambra Dr. Location Alternative 1 (New Location in median) Location Alternative 2 (New Location near driveway) Location Alternative 3 Pole Type View from Second Story Street Type Existing Pole Height & Height Increase (% change) A) Whip Antenna Option B) Original Option with Radome Enclosure C) Tri-Sector Pipe Option Vegetative Backdrop/ Screening of Antennas New Vertical Element Wood Pole No Between Major Arterial & Local Frontage Road Wood Pole No Major Arterial Existing Pole Ht.: 39 Height Increase: None None No New Pole Height: 48 None Yes Joint Utility Pole No Major Arterial Existing Pole Ht.: 66 Height Increase: None None No Street Light No Major Arterial No Information Provided None No Stand Alone Pole No Major Arterial No Information Provided None Yes Stand Alone Pole No Major Arterial No Information Provided None Yes Attachment 2 - Page 5 Other Notes? City Council Meeting 07-31

32 Site # Location Description 16* South side of Moore Blvd., west of Pollock Ct. Location Alternative 2 (New Location west of Rodin Place) Location Alternative 3 (New Location west of Sargent Ct.) 17* West side of Alhambra Drive at City Well #32 Pole Type Street Light Street Light Street Light Replace Existing Pole with New Stand Alone Steel Pole View from Second Story Street Type Existing Pole Height & Height Increase (% change) A) Whip Antenna Option B) Original Option with Radome Enclosure C) Tri-Sector Pipe Option Vegetative Backdrop/ Screening of Antennas New Vertical Element Yes Corner of Minor Arterial & Local Street Existing Pole Ht.: 30 Height Increase: A) Whip: 8 (27%) B) Proposed: 10 (33%) C) Tri-Sector: 11 (37%) None No Yes Minor Arterial No Information Provided None No Yes Minor Arterial No Information Provided None No No Minor Arterial Replace Existing 21 Pole Height Increase: A) Whip: 22 (105%) B) Proposed: 24 (114%) C) Tri-Sector: 25 (119%) None Yes Attachment 2 - Page 6 Other Notes? City Council Meeting 07-32

33 Site # Location Description 18* East side of Tulip Ln., south of Loyola Dr. Location Alternative 2 (New Location south of Adrian Dr.) 19* East side of La Paz Dr., south of El Macero Dr. Location Alternative 2 (New Location on El Macero Dr.) Pole Type Street Light Stand Alone Pole Replace existing decorative street light with new light or pole Street Light View from Second Story Street Type Existing Pole Height & Height Increase (% change) A) Whip Antenna Option B) Original Option with Radome Enclosure C) Tri-Sector Pipe Option Vegetative Backdrop/ Screening of Antennas New Vertical Element No Collector Existing Pole Ht.: 30 Height Increase: A) Whip: 8 (27%) B) Proposed: 10 (33%) C) Tri-Sector: 11 (37%) Sparse Tree Cover No No Collector No Information Provided None Yes Yes Local Street Replace Existing 19-8 Pole Height Increase: A) Whip: 14-4 (73%) B) Proposed: 16-4 (83%) C) Tri-Sector: 17-4 (88%) Sparse Tree Cover Yes No Collector No Information Provided Moderate Tree Cover No Attachment 2 - Page 7 Other Notes? City Council Meeting 07-33

34 Site # Location Description 20* South side of Lillard Drive, east of San Tomas St. 21* South side of Lillard Dr., adjacent to City Walnut Park parking lot Location Alternative 2 (New Location by Montgomery Elementary) 22* SW corner of Mace Blvd. and Redbud Drive 23* SW corner of W. 8 th St. and Elmwood Dr. Pole Type Street Light Street Light Street Light Street Light Street Light View from Second Story Street Type Existing Pole Height & Height Increase (% change) A) Whip Antenna Option B) Original Option with Radome Enclosure C) Tri-Sector Pipe Option Vegetative Backdrop/ Screening of Antennas New Vertical Element Yes Collector Existing Pole Ht.: 30 Height Increase: A) Whip: 4 (13%) B) Proposed: 6 (20%) C) Tri-Sector: 7 (23%) None No Yes Minor Arterial New Pole Height: 35-6 A) Whip: 33-6 B) Proposed: 35-6 C) Tri-Sector: 36-6 None Yes No Minor Arterial No Information Provided None No Yes Corner of Major Arterial and Local Street Existing Pole Ht.: 30 Height Increase: A) Whip: 4 (13%) B) Proposed: 6 (20%) C) Tri-Sector: 7 (23%) None No No Corner of Local Street & Minor Arterial Existing Pole Ht.: 25 Height Increase: A) Whip: 8 (32%) B) Proposed: 10 (40%) C) Tri-Sector: 11 (44%) None No Attachment 2 - Page 8 Other Notes? City Council Meeting 07-34

35 Site # Location Description Location Alternative 1 (New Location south of proposed site) 24* Median at SE corner of E. 8 th St. and J St. 25* North side of Whittier Dr., west of Manzanita Ln. Pole Type Street Light Street Light Street Light View from Second Story Street Type No Local Street No Minor Arterial No Local Street Existing Pole Height & Height Increase (% change) A) Whip Antenna Option B) Original Option with Radome Enclosure C) Tri-Sector Pipe Option Vegetative Backdrop/ Screening of Antennas New Vertical Element New Pole Height: 40 Sparse Tree Cover Yes Existing Pole Ht.: 30 Height Increase: A) Whip: 4 (13%) B) Proposed: 6 (20%) C) Tri-Sector: 7 (23%) None No Existing Pole Ht.: 25 Height Increase: A) Whip: 8 (32%) B) Proposed: 10 (40%) C) Tri-Sector: 11 (44%) Sparse Tree Cover No Attachment 2 - Page 9 Other Notes? City Council Meeting 07-35

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64 Article WIRELESS TELECOMMUNICATION FACILITIES Note * Prior ordinance history: Ord. No Purpose. (a) The purpose of this article is to provide uniform standards for the community desired design, placement, permitting, and monitoring of wireless telecommunication facilities consistent with applicable federal requirements. The standards are intended to address adverse visual impacts and operational effects of these facilities through appropriate design, siting, screening techniques and locational standards while providing for the communication needs of residents, local businesses, and government agencies. This article is not intended to, and does not, address or regulate health impacts associated with telecommunication projects. (b) The city, in conjunction with service providers, shall compile and maintain a list of telecommunication sites and facilities based on information provided by wireless service providers. The list shall include existing site and facility locations, structure height(s), number of service providers using the site/facility, and availability of space for additional users based on prior approvals and include site/facilities in the wireless network that directly connect to those facilities located in the city. (c) The following is a summary of uses and locations and if they are permitted under this article. Refer to Sections through for specific permitting requirements. Telecommunication Type/Zone Residential and commercial TV antennae and satellite antennae Public safety facilities WTFs accessory to public equipment for data acquisition such as irrigation controls, well monitoring and traffic signal controls WTFs erected for emergency situations and/or public information coverage with a duration of less than 7 days. Satellite earth station facilities not exceeding two meters in diameter or in diagonal measurement. Television and AM/FM radio antennae for commercial purposes Telecommunication equipment replacement or alterations at an existing facility that decrease or do not increase capacity, including alterations such as Exempt/Prohibited/Permitted Exempt from provisions in this article Exempt from provisions in this article Exempt from provisions in this article Exempt from provisions in this article Exempt from provisions in this article Exempt from provisions in this article Exempt from provisions in this article \ City Council Meeting 07-64

65 replacing the existing antenna with a smaller antenna, installing quieter equipment, or decreasing the number of antennas. Telecommunication emissions which exceed state and/or federal standards Residential zones School zones Public parks and greenbelts Sensitive habitat areas Historic buildings All other telecommunication types and zones Prohibited Prohibited, with 500 foot setback, including mixed use zones, except in public right-of-ways and/or on city-owned property, subject to conditional use permit process and requirements. Prohibited, with 500 foot setback, except in public right-of-ways and/or on city-owned property, subject to conditional use permit process and requirements. Permitted, subject to conditional use permit process and requirements. Prohibited Prohibited Permitted, if they meet the standards as set forth in this article Authority. Telecommunication facilities are regulated at the federal, state, and local level. In February 1996, the Federal Government enacted the 1996 Telecommunications Act. This Act contains provisions concerning the placement of antenna structures and other facilities for use in providing personal wireless services. Specifically, Section 704 preserves the right of local agencies to regulate these facilities based on aesthetics, visual impacts, and land use impacts Definitions. For the purposes of this article, the following terms shall have the meanings set forth below: (a) Antenna. Any system of wires, poles, rods, discs, reflecting discs, panels, flat panels, dishes, whip antennae, or other similar devices used for the transmission or reception of wireless signals. Antennae includes devices having active elements extending in any direction, and directional beam-type arrays having elements carried by and disposed from a generally horizontal boom that may be mounted upon and rotated through a vertical mast or tower interconnecting the boom and antenna support, all of which elements are deemed to be a part of the antenna. The height of the antenna shall include all array structures. (1) Antenna Amateur radio. A ground, building, or tower mounted antenna, or similar antenna structure, operated by a federally licensed amateur radio operator as part of the Amateur Radio Service, and as designated by the Federal Communications Commission (FCC). (2) Antenna array. A group of antenna elements located on the same structure \ City Council Meeting 07-65

66 (3) Antenna Building mounted. Any antenna, other than an antenna with its supports resting on the ground, directly attached, façade mounted or affixed to a building, tank, tower, or structure other than a WTF. (4) Antenna Roof mounted. Any antenna which is mounted to the roof of a building, tank, or similar structure. (5) Antenna Flush mounted. An antenna mounted to a structure which does not project above the façade to which it is mounted (6) Antenna Direct broadcast satellite service (DBS). An antenna, usually a small home receiving dish. (7) Antenna Directional (also known as panel antenna). A device used to transmit and/or receive radio frequency signals in a directional pattern of less than three hundred sixty degrees. (8) Antenna Ground mounted. Any antenna with its base, single or multiple posts, placed directly on the ground. (9) Antenna Multipoint distribution services (MDS). An antenna designed to receive video programming services via multipoint distribution services including multipoint multichannel distribution services, instructional television fixed services, and local multipoint distribution services. (10) Antenna Portable. Any device used to transmit and/or receive electromagnetic or radio frequency communications/signals in a specific directional pattern located on a portable or moveable base designed to be placed either for temporary or long-term use at a given site. (11) Antenna Satellite earth station (SES). An antenna designed to receive and/or transmit radio frequency signals directly to and/or from a satellite (12) Antenna Television broadcast service (TVBS). An antenna designed to receive only television broadcast signals. (13) Antenna Radio antennas. An antenna designed to receive AM/FM radio broadcast signals, or similar signals used for commercial purposes. (14) Antenna Distributed Antenna System (DAS). Network of spatially separated antenna sites connected to a common source that provides wireless service within a geographic area or structure. (15) Antenna All other antennas. All other antenna(s) not previously covered in this section. (b) Co-location. Co-location means the location of more than one WTF, including antennas, on the same structure by more than one WTF owner, or the location of one or more WTFs on an existing WTF structure. (c) Equipment building, shelter or cabinet. A cabinet or building used by telecommunications providers to house equipment at a site or facility. (d) Federal Communications Commission (FCC). The Federal Communications Commission is the governmental agency responsible for regulating telecommunications in the United States. (e) Lattice tower. A structure, guyed or freestanding, erected on the ground, which generally consists of metal crossed strips or bars to support antennas and related equipment \ City Council Meeting 07-66

67 (f) Monopole. A WTF or site which consists of a single pole structure (non-lattice), designed and erected on the ground or on top of a structure, to support telecommunications antennas and connecting appurtenances. (g) Non-ionizing electromagnetic radiation (NIER). Radiation from the portion of the electromagnetic spectrum with frequencies of insufficient energy to break chemical bonds, including all frequencies below the ultraviolet range such as visible light and radio frequency radiation. (h) Permittee. The recipient, or its heirs, successors, or assigns of a permit issued pursuant to this article, or any operator, user, or lessee of any permitted WTF. (i) Public Right-of-Way (PROW). Any public road, highway, or waterway subject to Public Utilities Code section 7901 (as it may be amended from time to time). (j) Stealth technology/techniques. Camouflaging methods applied to wireless telecommunication towers, antenna and/or other sites/facilities which render them more visually appealing or blend the proposed facility into the existing structure or visual backdrop in such a manner as to render it minimally visible to the casual observer. Stealthing may utilize, but does not require, concealment of all components of the WTF. (k) Wireless telecommunication facility (WTF). The capital, equipment and property, including but not limited to the towers, poles, pipes, mains, conduits, ducts, pedestals, and electronic equipment, including Antennas (e.g, DAS), used for the purpose of transmitting, receiving, distributing, providing, or accommodating wireless telecommunication services. (l) Wireless. Transmissions through the airwaves including, but not limited to, infrared line of sight, cellular, PCS, microwave, or satellite Overview. (a) This section specifies the parameters for various types of wireless telecommunications based on their level of impact. Prohibited facilities are specifically identified. (b) Facilities considered to have minimal impacts or which are exempt from local review by state or federal statutes have been classified as exempt under this article and are not subject to discretionary review so long as they are in compliance with the development standards set forth herein. Unless listed below in Sections and as exempt or prohibited, no WTF shall be constructed without first undergoing the specific review process and obtaining the prescribed permit Prohibited projects. (a) The following WTFs shall be prohibited: (1) WTFs that do not comply with the most current regulatory and operational standards, including but not limited to, radio frequency (RF) emissions standards adopted by the FCC. (2) WTFs within areas zoned or designated on the general plan land use map for residential uses; or within five hundred feet of areas so designated or zoned. Mixed use zones are subject to this prohibition \ City Council Meeting 07-67

68 (3) WTFs on sites containing existing or planned public or private school facilities; or within five hundred feet of said areas so designated or zoned. (4) WTFs located within designated sensitive habitat areas such as habitat restoration areas, as designated by the city. The community development department shall maintain a map identifying such areas. (5) No WTF shall be located on a property that has been designated an historical resource in accordance with Article (b) Exemptions to the prohibitions or five-hundred-foot setback requirement set forth above: (1) Areas zoned central commercial, auto center, commercial service or planned developments allowing service commercial uses, subject to conditional use permit review procedures. (2) Areas zoned commercial neighborhood or planned development allowing neighborhood commercial uses subject to conditional use permit review requirements and a determination that all aspects of the proposed WTF, including support facilities, are fully stealthed (i.e., not visible) from view of any surrounding residential area. An example of a fully stealthed project would be one that contains the antenna within the roof structure of an existing commercial building and the support facilities are located within the walls of the building or underground. Support facilities within a traditional trash enclosure type of screening structure would not be permitted within these zones. (3) WTFs within the PROW or on city-owned property (including parks and greenbelts), provided the application procedures set forth in Section (conditional use permit procedures) are satisfied and provided the facilities meet the location and design standards set forth in this article, except historic properties and sensitive habitat areas Exempt facilities. The following WTFs are exempt from discretionary review under this article, provided they meet the location and design requirements set forth below: (a) Interior and exterior facilities accessory to a permitted use of a site, limited to, television antennae, satellite dishes, and amateur radio facilities meeting all the requirements set forth below: (1) Direct broadcast satellite (DBS) antennae and television broadcast service (TBS) antennae or other similarly scaled telecommunication device not exceeding one meter in diameter DBS and TBS, other satellite dishes and similar devices may not extend above the roof peak or parapet. (2) Ground mounted antennas and support structures shall be located entirely on-site and meet all required setbacks. Antennae, including the support structure, shall not be located within front or side yard setbacks and shall be screened from public view to the extent practical. No portion of the antenna or support structure may over hang or extend beyond any property line \ City Council Meeting 07-68

69 (3) Antenna height shall not exceed the maximum allowable building height for the zoning district in which it is located by more than ten feet. The antenna support structure shall not exceed a width or diameter of twenty four inches. (b) Public safety facilities, used only for public safety functions, including transmitters, repeaters, and remote cameras so long as the facilities are designed to match the supporting structure. (c) WTFs accessory to other publicly owned or operated equipment for data acquisition such as irrigation controls, well monitoring, and traffic signal controls. (d) WTFs erected and operated for emergency situations, as designated by the police chief, fire chief, or city manager so long as the facility is removed at the conclusion of the emergency. (e) Multipoint distribution service (MDS) antennae and other temporary mobile wireless service including mobile WTFs and services providing public information coverage of news events (less than two-weeks duration). (f) Mobile facilities when placed on a site for less than seven consecutive days, provided any necessary building permit is obtained. (g) Satellite earth station (SES). A SES proposed to be located in commercial or industrial zones, which meet the following standards shall require a building permit and conform to the following standards: (1) SES antennae shall not exceed two meters in diameter or in diagonal measurement. (2) SES antennae shall be located as far away as possible from the edges of rooftops to eliminate visibility, or shall be adequately screened, from adjacent properties. The method of screening shall be approved by the community development director. (h) Television (TVBS) and AM/FM radio antennas for commercial use. The antenna shall not extend more than twelve feet beyond the maximum allowed building height for the zone. (i) Telecommunication equipment replacement or alterations at an existing facility that decrease or do not increase capacity, including alterations such as replacing the existing antenna with a smaller antenna, installing quieter equipment, or decreasing the number of antennas. (j) Any WTF, if and only to the extent that a permit issued by the California Public Utilities Commission (CPUC) or the rules and regulations of the Federal Communications Commission (FCC) specifically provide that the antenna is exempt from local regulation. (k) Any collocation facility that meets the requirements of California Government Code (l) Personal wireless internet equipment, such as a wireless router, provided that the equipment is included entirely within a building or residence Facilities allowed if authorized pursuant to conditional use permit procedures. The following WTFs shall be reviewed in accordance with Article (Conditional Use Permit), provided the submittal requirements set forth in Section are satisfied and provided the facilities are consistent with Section and meet the location and design standards set forth in this article. The city, however, retains the authority to limit the number of WTFs to be located at any site and adjacent sites in order to prevent negative visual impacts associated with multiple facilities \ City Council Meeting 07-69

70 (a) Non-compliant exempted. Any exempted facility that does not meet the location and design standards of Section (b) Mobile antenna. Any mobile antenna when placed on a site for more than seven consecutive days, but less than thirty days meeting the requirements set forth below: (1) Antenna vehicle/trailer shall be located only on an improved surface. (2) Parking and access for support personnel shall be on an improved surface. (3) Day and night safety marking shall be provided. (4) The antenna vehicle/trailer and support parking shall not be located within a public rightof-way. (c) Additional antennas and/or changes or modifications to an existing tower. The following is a list of requirements for this application type: (1) The tower was constructed and is operating in accordance with the requirements of the conditional use permit. (2) The type and size of proposed antenna(s) is consistent with the provisions of this article. (3) The new antenna array does not exceed the height of the existing tower. (4) The antenna array is the second or third grouping on the tower. (5) The proposed array fits within the three dimensional envelope of the existing tower and arrays. (6) The proposed array does not include a microwave dish greater than one meter in diameter. (7) The combined EMR for all arrays does not exceed state or federal standards. (8) The new array does not require substantial modifications to the existing tower. (d) Building mounted antennas. The following is a list of standard requirements for this application type: (1) The lowest part of the antenna shall be a minimum of fifteen feet above grade. (2) The antenna and mountings shall not project more than eighteen inches from the building surface to which it is mounted. (3) Antennas, connections, and supports shall be treated to match the color scheme of the building, or as approved by the planning commission. (4) Antennas and connections shall not project above the building façade. (5) Ground-mounted support equipment shall be under grounded or screened from public view. (6) Exterior electrical lines serving the equipment cabinet or building shall be undergrounded. (7) If panel type antennas are proposed, the total square footage of all panels shall not exceed twenty-five square feet on any façade. (e) Roof mounted facilities. The following is a list of standard requirements for this application type: \ City Council Meeting 07-70

71 (1) The facility and related equipment shall be fully screened from view or architecturally integrated into the building design. (2) Antennas shall match the color scheme of the building façade to which they are attached. (3) Ground-mounted equipment shall be placed below grade or screened from public view. If the planning commission determines that screening is not adequate, it shall require that equipment be placed underground or within building enclosure. (4) Antennas and support structures shall not exceed the allowable height limit for the zone zoning district in which it is located by more than ten feet or exceed the roof parapet by more than six feet, whichever is less. (f) WTFs on publicly owned or publicly utilized lands (excluding WTFs on city-owned property, including parks and greenbelts, in or within 500-feet of residential, school, or mixed use zones). The following is a list of standard requirements for this application type: (1) Antennas may be ground-mounted or mounted on existing buildings or structures. (2) The antennas shall be integrated into the site and/or structure design. (3) Ground-mounted equipment shall be under grounded or screened from public view. If the planning commission determines that screening is not adequate, it may require that equipment be placed underground. (4) Parking and access shall be on an improved surface. (g) WTFs in the Public Right-of-Way (PROW) or on City-Owned Property in or within 500-feet of Residential, School, or Mixed Use Zones, including parks and greenbelts. WTFs within the PROW or on city-owned property in or within 500-feet of residential, school, or mixed use zones shall meet the requirements set forth below. (1) Conditional use permits for WTFs proposed in the PROW shall be issued in a manner consistent with applicable law regarding the physical use and occupation of the PROW and only to applicants who have met all the conditions and requirements of this code and who possess one or more of the following grants of authority to occupy the PROW by showing proof of same through the following valid and current documentation: i. A certificate of public convenience and necessity (CPCN) issued by the CPUC which shall expressly state the applicant's authority to provide the facilities-based telecommunications service that the applicant proposes to provide through the proposed WTF; or ii. A license to provide personal wireless service issued by the FCC. (2) Antennas and all support equipment shall betreated to match the supporting structure. (3) WTF installations located above the surface grade in the PROW including, but not limited to, those on streetlights, traffic signal standards, or joint utility poles, shall consist of small equipment components that are compatible in scale and proportion to the structures they are mounted on and compatible with the neighborhood in which they are located. Antenna arrays should generally be located on existing structures, such as street light poles or joint utility poles and be visually compatible with the existing structure and surroundings. All \ City Council Meeting 07-71

72 equipment shall be the least visually intrusive feasible. Equipment shall be painted or otherwise coated to be visually compatible with the support structure and shall be subject to the issuance of a license or other special form or written agreement with the city. Under no circumstances shall equipment exceed the following: [This section regarding dimensions intentionally left blank pending direction from the City Council.] (4) Proposals for new monopoles shall generally not exceed 40 feet in height. This standard may be modified upon finding by the planning commission that cumulative visual impacts are not significant and that the WTF is necessary to provide services not possible with location on an existing tower or structure in the service area. Independent review of the request, at the applicant s cost, may be required by the planning commission. (5) Accessory equipment shall be placed in an underground vault. Where the applicant asserts that placing such WTFs in an underground vault is not feasible, the burden shall be on the applicant to establish that it is not feasible, which determination shall be subject to the approval of the planning commission. If the planning commission determines that undergrounding is not feasible, such accessory equipment shall comply with all applicable laws and regulations and shall be visually screened or camouflaged. All wall and landscaping materials shall be selected so that the resulting screening will be visually integrated with the architecture and landscape architecture of the surroundings. (6) WTFs in the PROW or on city-owned property in or within 500-feet of residential, school, or mixed use zones shall generally not be permitted within one thousand three hundred (1300) feet of an existing WTF. This standard may be modified upon finding by the planning commission that cumulative visual impacts are not significant and that the WTF is necessary to provide services not possible with co-location on an existing tower or structure in the service area. Independent review of the request, at the applicant s cost, may be required by the city. (7) The city retains the right to deny an application for this type of WTF based on aesthetic or land use impacts. (8) Term. Conditional use permits issued pursuant to this subdivision for WTFs in the PROW or on city-owned property in or within 500-feet of a residential, school, or mixed use zone shall have a duration of 10 years unless a longer term is required by law. Prior to expiration, the permittee may apply for an extension of its conditional use permit for a period of up to 10 years, subject to the then existing requirements set forth in this article. The city may extend, modify, or deny the application subject to the then existing requirements of this article and applicable law. (h) Modification to existing WTFs. Any modification of an existing WTF that is not authorized under the provisions of its existing permit and does not otherwise qualify as a wireless tower or base station subject to ministerial approval under Section (i) Emergency 911 uses/upgrades. Any alteration, upgrade or addition of telecommunication equipment or accessories to allow for Emergency 911 uses. Documentation from the FCC shall be submitted with the application requiring this use \ City Council Meeting 07-72

73 (j) Antenna arrays. Mounted on existing signs, water towers, sport field light towers, and other similarly scaled structures meeting the requirements set forth below: (k) (1) Antennas shall be treated to match the supporting structure. (2) Ground-mounted equipment shall be under ground or screened from public view. If the planning commission determines that screening is not adequate, it may require that equipment be placed underground. (3) The city retains the right to deny an application for this type of WTF based on aesthetic impacts alone. Monopole or lattice tower facilities. (1) Monopoles and lattice towers shall be located and designed to minimize visual impacts. Towers located in high visibility locations shall incorporate stealth design techniques to camouflage the tower to the maximum extent feasible as art/sculpture, clock tower, flag pole, tree or any other appropriate and compatible visual form. (2) Monopoles and lattice towers shall be located on the rear half of the parcel, unless aesthetic benefit is achieved through an alternative location, as determined by the planning commission. (3) New private monopoles and lattice towers shall not be located in any land developed or zoned for any residential and/or school zone/use, pursuant to Section (4) Monopoles and lattice towers shall generally not be permitted within one thousand feet of an existing tower or WTF. This standard may be modified upon finding by the planning commission that cumulative visual impacts are not significant and that the tower is necessary to provide services not possible with co-location on an existing tower or structure in the service area. Independent review of the request, at the applicant s cost, may be required by the planning commission. (5) Monopoles and lattice towers shall be designed at the minimum functional height. Tower height shall generally not exceed the maximum height for buildings in the zoning district in which it is located by more than twelve feet. This standard may be modified upon a finding by the planning commission that cumulative visual impacts are not significant and that the height is necessary to provide services not possible with a tower meeting the height standard. Independent review of the request, at the applicant s cost, may be required by the community development director. If no maximum building height is established in this chapter, the height of the tower shall be reviewed for the visual impact on the surrounding land uses and the community. (6) As a condition of approval for all monopoles and lattice towers, the applicant shall provide the city with a written commitment that it will allow other service providers to colocate antennas on towers where technically and economically feasible. (7) Ground-mounted equipment shall be under ground or screened from public view. If the planning commission determines that screening is not adequate, it may require that equipment be placed underground. (8) Parking and access shall be on an improved surface, subject to review and approval by the planning commission \ City Council Meeting 07-73

74 (l) Additions and/or expansions of legal nonconforming uses, including co-locations, which do not meet the criteria for exempt facilities under Section (m) Other WTFs not listed as exempt, permitted, or prohibited Submittal requirements. (a) Except for the WTFs specifically identified as exempt under Section , all applications for WTFs that require a conditional use permit, as specified in Section , shall be submitted to the community development department under the conditional use permit procedures set forth in Article The number, size and content of plans shall be determined by the community development director. The community development director may require additional information, besides the information specified in this section, in order to properly assess a particular application. (b) Submittals shall include all application materials generally required for a conditional use permit, as provided for in Article (c) Vicinity map, including topographic areas, one-thousand-foot radius from proposed site/facility, residential and school zones and major roads/highways. The distance of the proposed telecommunication project from existing residentially designated/zoned areas, existing residences, schools, major roads and highways, and all other telecommunication sites and facilities (including other providers locations) within a one-thousand-foot radius shall be delineated on the vicinity map. (d) Site plan including and identifying: (1) All facility related support and protection equipment; (2) A description of general project information, including the type of facility, number of antennas, height to top of antenna(s), radio frequency range, wattage output of equipment, and a statement of compliance with current FCC requirements. (e) Elevations of all proposed telecommunication structures and appurtenances, and composite elevations from the street(s) showing the proposed project and all buildings on the site. (f) Photo simulations, photo-montage, story poles, elevations and/or other visual or graphic illustrations necessary to determine potential visual impact of the proposed project. Visual impact demonstrations shall include accurate scale and coloration of the proposed facility. The visual simulation shall show the proposed structure as it would be seen from surrounding properties from perspective points to be determined in consultation with the community development department prior to preparation. The city may also require the simulation analyzing stealth designs, and/or onsite demonstration mock-ups before the public hearing. (g) Landscape plan that shows existing vegetation, vegetation to be removed, and proposed plantings by type, size, and location. If deemed necessary, the community development director may require a report by a licensed landscape architect to verify project impacts on existing vegetation. This report may recommend protective measures to be implemented during and after construction. Where deemed appropriate by the community development department, a landscape plan may be required for the entire parcel and leased area. (h) A written statement and supporting information, as requested by staff and/or the planning commission, regarding alternative site selection and co-location opportunities in the service area. The application shall describe the preferred location sites within the geographic service area, a \ City Council Meeting 07-74

75 statement why each alternative site was rejected, and a contact list used in the site selection process. Provide a statement and evidence of refusal regarding lack of co-location opportunities. (i) Noise and acoustical information for the base transceiver station(s), equipment buildings, and associated equipment such as air conditioning units and back-up generators. Such information shall be provided by a qualified firm or individual, approved by the city, and paid for by the project applicant. (j) A radio frequency (RF) analysis conducted and certified by a state-licensed/registered RF engineer or qualified consultant to determine the maximum potential RF power density of the proposed WTF at full build-out, along with a comparison of the maximum RF exposure calculations at ground level with the FCC s RF safety standards. The engineer shall use accepted industry standards for evaluating compliance with FCC-guidelines for human exposure to RF, such as OET 65, or any superseding reports/standards. The RF analysis shall be provided by a qualified firm or individual, approved by the city, and paid for by the project applicant. (k) A cumulative impact analysis for the proposed facility and other WTFs on the project site or within 1300 feet of the proposed WTF site. The analysis shall include all existing and proposed (application submitted to the community development department) WTFs on or near the site, dimensions of all antennas and support equipment on or near the site, power rating for all existing and proposed back-up equipment, and a report estimating the ambient RF fields and cumulative electro magnetic radiation at the proposed site. (l) Statement by the applicant of willingness to allow other carriers to co-locate on their facilities wherever technically and economically feasible and aesthetically desirable. (m) A signed copy of the proposed property lease agreement, exclusive of the financial terms of the lease, including provisions for removal of the WTF and appurtenant equipment within ninety (90) days of its abandonment and provisions for city access to the WTF for removal where the provider fails to remove the WTF and appurtenant equipment within ninety (90) days of its abandonment pursuant to Section (b). The final agreement shall be submitted at the building permit stage. (n) An evidence of needs report detailing operational and capacity needs of the provider s system within the City of Davis and the immediate area adjacent to the city. The report shall detail how the proposed WTF is technically necessary to address current demand and technical limitations of the current system, including technical evidence regarding significant gaps in the provider s coverage, if applicable, and that there are no less intrusive means to close that significant gap. Such report shall be evaluated by a qualified firm or individual, chosen by the city, and paid for by the project applicant. The qualified firm or individual chosen by the city may request additional information from the applicant to sufficiently evaluate the proposed project. (o) A security plan which includes emergency contact information, main breaker switch, emergency procedures to follow, and any other information as required by Section and/or the community development director. (p) A description of the anticipated maintenance program and back-up generator power testing schedule \ City Council Meeting 07-75

76 Pre-application. Two pre-application meetings are recommended for WTFs. The first meeting should take place at the earliest stage of site location research and should include a service area map and description of the type of antenna facility required. The second meeting is recommended after the site is selected and should include a preliminary site plan and visual impact drawings. These meetings are voluntary, and no fees shall be for the city s review of material submitted at this stage General standards. The following standards are applicable to all WTFs except exempt facilities identified in Section (a) If technological improvements or developments occur that allow the use of materially smaller or less visually obtrusive equipment, the service provider may be required to replace or upgrade an approved WTF upon application for a new permit in order to minimize the WTF s adverse impacts on land use compatibility and aesthetics. This provision would only apply to the specific site where the application for modification is requested. (b) Each service provider with a WTF in the city shall obtain a city business license prior to initiation of service. (c) If deemed necessary, the city may hire a third party independent RF engineer to evaluate any technical aspect or siting issues proposed in the application. The applicant will be responsible to pay for all charges of this analysis. (d) New mixed-use planned developments over fifty acres in size. Identification of a preferred site or sites for WTFs are highly encouraged under the terms of the planned development. Such sites may be developed with WTFs, even if subsequent land use development occurs. (e) All WTFs shall be installed and maintained in compliance with the requirements of the Uniform Building Code, National Electrical Code, the Americans with Disabilities Act, as well as other restrictions specified in this article and other applicable provisions of the Davis Municipal Code. (f) In addition to the term imposed on permits issued for WTFs in the PROW pursuant to Section (g)(4), the city may impose a condition limiting the duration of any permit for a WTF located on any property. As part of such condition, the city shall specify the threshold which could trigger termination of the permit following a duly noticed public hearing Height. (a) All WTFs shall be designed to the minimum functional height required. (b) Unless this article imposes a more restrictive height limitation on a specific type of facility, WTF height shall not extend more than twelve feet beyond the maximum allowable building height for the zone, except as otherwise allowed in this article. If a maximum building height has not been established in Chapter 40, the city s zoning ordinance, the height of the facility shall be reviewed for the visual impact on the surrounding land uses and the community. (c) If the WTF is not attached to a building, the height of the facility shall be reviewed for the visual impact on the surrounding land uses and the community \ City Council Meeting 07-76

77 (d) The height of a telecommunication tower shall be measured from the natural, undisturbed ground surface below the center of the base of said tower to the top of the tower itself or, if higher, the tip of the highest antenna or piece of equipment attached thereto Setbacks. The following setback requirements shall apply to all WTFs except WTFs in the PROW and on cityowned property: (a) All WTFs, shall comply with the required building setbacks for the zoning district in which the site is located. However, in no instance, shall the WTF (including antennae and equipment) be located closer than five feet of any property line. Additional setback requirements shall be established in conjunction with a conditional use permit for those antennae exceeding the height limit for the zoning district. (b) WTFs shall not be located within the required front-yard area of any parcel, unless specifically approved by the planning commission. (c) The planning commission may reduce setbacks through the conditional use permit process upon determination that aesthetic impacts would be reduced and/or open space improved Landscaping. (a) Landscaping, wherever appropriate, shall be used as screening to reduce visual impacts of telecommunication facilities. Any proposed landscaping shall be visually compatible with existing vegetation in the vicinity. (b) Existing landscaping in the vicinity of a proposed WTF shall be protected from damage during and after construction. Submission of a tree protection plan may be required to ensure compliance with this requirement. (c) Off-site landscaping may be required to mitigate off-site impacts, subject to willing property owners. Additional landscaping may also be required in public right-of-ways to obscure visibility of WTFs from passing motorists, bicyclists, and pedestrians. (d) stage. An automatic irrigation system shall be provided and reviewed at the building permit Design standards. All WTFs shall: (a) Utilize state of the art stealth technology as appropriate to the site and type of facility. Specifically, all WTFs shall employ and maintain camouflage design techniques to minimize visual impacts and provide appropriate screening. Such techniques shall be employed to make the installation, operation and appearance of the WTF as visually inconspicuous as possible and to hide the installation from predominant views from surrounding properties. Where no stealth technology is proposed for the site, a detailed analysis as to why stealth technology is physically and technically infeasible for the project shall be submitted with the application. (b) Antennae and support structures, where utilized, must be monopole type. Monopole support structures shall not exceed four feet in diameter unless technical evidence is provided \ City Council Meeting 07-77

78 showing that a larger diameter is necessary to attain the proposed tower height and that the proposed tower height is necessary. (c) In the case of existing structures, the WTF shall be located in a manner so as to minimize visual impacts from surrounding properties and PROW. (d) All flush mounted antennae(s) and support structures shall be painted to be architecturally compatible with the building on which it is located or painted to minimize the visual impacts where the structures extend above the roof line and minimize visual impacts from surrounding properties. The specific color is subject to city review based on a visual analysis of the particular site. (e) Accessory equipment must be designed and screened from public view. The specific design is subject to city review based on a visual analysis of the particular site. (f) Support structures and site area for WTFs shall be designed and of adequate size to allow at least one additional service provider to co-locate on the structure, subject to the specific design standards and aesthetic considerations of the specific WTF location and conditional use permit requirements in Section (g) All proposed fencing shall be decorative and compatible with the adjacent buildings and properties within the surrounding area and shall be designed to limit and/or allow for removal of graffiti Signage. A permanent, weather-proof identification sign, subject to planning commission review and determination, must be placed on the gate of the fence surrounding the WTF or, if there is no fence, on the WTF itself. The sign must identify the facility operator(s), type of use, provide the operator s address, and specify a twenty-four-hour telephone number at which the operator can be reached so as to facilitate emergency services Public hearing and noticing radius. Public hearing notices of proposed WTFs (excluding exempt WTFs) shall be conducted in accordance with Sections and of the Davis Municipal Code. The noticing radius for proposed WTFs shall be five hundred feet. The noticing radius shall be measured from the outer boundary of the subject parcel, or, for those facilities in the PROW, from the outer boundary of the closest parcel adjacent to the subject PROW site Findings for approval of WTFs. In addition to the required findings for a conditional use permit, and other standards set forth in this article, the following findings shall be met prior to approval of any WTF: (a) The proposed WTF has been designed to minimize its visual and environmental impacts, including the utilization of stealth technology, when applicable. (b) The proposed site has the appropriate zoning, dimensions, slope, design, and configuration for the development of a WTF \ City Council Meeting 07-78

79 (c) That general landscaping considerations as outlined in Section , when applicable, have been complied with to complement the structures and antennae, provide an attractive environment and preserve natural features and elements. (d) Based on information submitted, the proposed WTF is in compliance with all FCC and California Public Utilities Commission (PUC) requirements. (e) The applicant has demonstrated and confirmed that (i) the WTF is necessary to address current demand capacity or other technical limitations of the system in order to maintain or improve service levels, or (ii) the WTF is necessary to close a significant gap in the provider s coverage and there are no less intrusive means to close that significant gap Public safety and monitoring. (a) At all times, permittee shall ensure that its WTF(s) comply with the most current regulatory and operational standards including, but not limited to, radio frequency (RF) emissions standards adopted by the FCC, antenna height standards adopted by the Federal Aviation Administration, and/or regulatory or operational standards established by any other government agency with the authority to regulate such facilities. (b) No WTF, either by itself or in combination with other such facilities, shall generate at any time, electromagnetic radiation (EMR) or radio frequency radiation (RF) in excess of the FCC adopted standards for human exposure, as amended over time. (c) The permittee shall, at its expense, obtain and maintain the most current information from the FCC regarding allowable RF emissions and all other applicable regulations and standards and shall file a monitoring report documenting the WTFs current emissions (including field measurements). The field measurements shall be conducted in accordance with accepted industry standards. The report shall include findings from a qualified engineer or consultant as to whether the monitoring results are in compliance with FCC standards. The monitoring report shall be filed with the community development director as follows: i. For new WTFs, within five days of the WTF s first day of operation (i.e., within 5 days of when the WTF goes live ), or as set forth in the permit issued under this article; ii. For new WTFs, annually on the anniversary of the initial compliance report submittal date, and for existing WTFs, upon request by the community development director and annually thereafter; iii. Within six months of the effective date of any amendment or revision of applicable regulatory and operational standards, unless the controlling agency mandates a more stringent compliance schedule, in which case the report shall be filed consistent with the more stringent compliance schedule iv. Upon any change or alteration in the WTF s equipment or operation, including but not limited to addition of new antennas, change in frequency use, increase in effective radiated power, or addition of a new wireless provider to an existing WTF (e.g., addition of a new tenant to a DAS WTF) \ City Council Meeting 07-79

80 (d) At the community development director s sole discretion, a qualified independent RF engineer or consultant, selected by and under contract to the city, may be retained to review and verify said monitoring reports for compliance with FCC regulations. All costsassociated with the city s review of these monitoring reports shall be the responsibility of the permittee, which shall reimburse the city for the review costs within 30 days of the city s demand for reimbursement. (e) Any violation of this section is deemed a public nuisance and shall constitute grounds for revocation of any permits and/or approvals granted under this article or any predecessor to this article. Such violations shall also constitute grounds for abatement and removal of the WTF by the city at the expense of the permittee or the property owner. i. If it is found that a WTF is or will be detrimental to the health, safety, or welfare of persons working or residing near such facilities, then the permittee shall be solely responsible for the removal, adjustment, or replacement of the facilities. In no case shall the facility remain in operation if it is found to create a hazard to health, safety, and welfare. A WTF shall not be found to create a hazard to health, safety, or welfare so long as it meets all then current regulations and operational standards established by the FCC or other government agency having jurisdiction. ii. If a new WTF is not in compliance with applicable FCC standards and conditions of approval, a final building permit shall not be issued, any operation of the WTF shall cease immediately, and the permittee will be subject to the revocation procedures under Section if compliance is not achieved within a reasonable period as specified by the community development director following written notice and an opportunity to cure. (f) For the protection of emergency response personnel, each WTF shall have a main breaker switch to disconnect electrical power at the site. For co-location WTF sites, a single main switch shall be installed to disconnect electrical power for all carriers at the site in the event of an emergency. (g) Compliance with the security plan is required. If it does not comply, the conditional use permit may be revoked. (h) WTFs shall not be operated in any manner that would cause interference with the city s existing and/or future emergency telecommunication system. If such interference occurs, it is the service provider s responsibility to remedy the issue to the satisfaction of the city. (i) Public access to a WTF shall be restricted. Security measures shall include fencing, screening, and security signage, as deemed appropriate by the community development director and shall be maintained by the permittee. (i) Lighting shall not be permitted on WTFs unless required as a public safety measure. If lighting is required, the city may review the available lighting alternatives and approve the design that would cause the least disturbance to surrounding uses. Security lighting installed at WTF sites shall only be operational when personnel are present. The specific lighting is subject to review and approval by the community development department and the police department Noise. (a) WTFs and all other accessory uses shall not exceed the acceptable decibel limit as established by the Davis Municipal Code \ City Council Meeting 07-80

81 (b) Back-up generators shall only be operated during power outages and/or for testing and maintenance purposes on weekdays between the hours of 9 a.m. and 4 p.m Existing WTFs. All existing WTFs approved by the city and in operation prior to adoption of this amended article shall be subject to the provisions of this article unless otherwise exempt under the terms of the approval for the specific WTF. In particular, proposed modifications to any existing WTF shall be subject to Section Indemnity and Liability for Damages. The following provisions of this section shall be incorporated into any use permit granted by the city for a WTF: (a) The applicant shall defend, indemnify, and hold harmless the City of Davis, its officers, employees, or agents from or against any action or challenge to attack, set aside, void, or annul any approval or condition of approval of the City of Davis concerning this approval, including but not limited to any approval or condition of approval of the city council, planning commission, or community development director. (b) The applicant shall further defend, indemnify and hold harmless the city, its officers, agents and employees from any damages, liabilities, claims, suits, or causes of action of any kind or form, whether for personal injury, death or property damage, arising out of or in connection with the activities or performance of the applicant, its agents, employees, licensees, contractors, subcontractors or independent contractors, pursuant to the approval issued by the city. (c) WTF operators or permittees shall be strictly liable for interference caused by their facilities with city communications systems. The operator shall be responsible for costs for determining the source of the interference, all costs associated with eliminating the interference (including but not limited to filtering, installing cavities, installing directional antennas, powering down systems, and engineering analysis), and all costs arising from third party claims against the city attributable to the interference. (d) The city shall promptly notify the applicant of any claim, action, or proceeding concerning the project and the city shall cooperate fully in the defense of the matter. The city reserves the right, at its own option, to choose its own attorney to represent the city, its officers, employees and agents in the defense of the matter Periodic review. (a) The city may conduct a periodic review of any WTF to consider whether or not the facility is conforming with the conditions of its discretionary approval or appropriate permits. (b) The city shall consider whether or not the WTF conflicts with emerging land uses approved under the applicable general or specific plan. If the city concludes that adverse impacts to emerging land uses can be reduced through the use of new technology, or through the retirement of the current facility, the city shall work with the permittee and/or wireless carrier to develop a plan for achieving these mitigating goals \ City Council Meeting 07-81

82 (c) The city may implement a spot-check monitoring program which shall be implemented at a frequency determined by the city. This program may test various WTF sites in the city, WTF sites located in proximity to the city, and various sites in the city, not necessarily located close to a WTF Implementation and monitoring costs. The permittee or its assignee(s) shall be responsible for the payment of all reasonable costs associated with monitoring the conditions of approval contained in any discretionary approval issued pursuant to this article, or any predecessors to this article, including costs incurred by the city or any other appropriate agency. The community development department shall collect such costs on behalf of the city Transfer of operation. Permittee shall not assign or transfer any interest in its permits for WTFs without advance written notice to the community development director. The notice shall specify the identity of the assignee or transferee of the permit, as well as the assignee or transferee s address, telephone number, name of primary contact person(s), and other applicable contact information, such as an address or facsimile number. The new assignee or transferee shall comply with all of the WTF s conditions of approval Abandonment or discontinuation of use. (a) All permittees who intend to abandon or terminate the use of any WTF shall notify the city of such intentions no less than sixty (60) days prior to the final day of use. Said notification shall be in writing, shall specify the date of termination, the date the WTF will be removed, and the method of removal. (b) Non-operation or disuse for ninety (90) days or more shall constitute abandonment or a voluntary termination of use by the permittee under this article or any predecessors to this article. The community development director shall send a written notice of abandonment to the permittee. The permittee shall have ninety (90) days to remove the WTF or provide the director with evidence that the WTF has not been abandoned (c) Upon abandonment or termination of use, the permittee shall have ninety (90) days to remove the WTF or provide the director with evidence that the WTF has not been abandoned. The WTF shall be physically removed at the permittee s expense no more than ninety (90) days following the date of abandonment or termination of use. The WTF shall be removed in accordance with applicable health and safety requirements and the site upon which the WTF was located shall be restored to the condition that existed prior to the installation of the WTF, or as required by the community development director. The permittee shall be responsible for obtaintaining all necessary permits for the removal of the WTF and site restoration. (d) At any time after ninety (90) days following the abandonment or termination of the use or operation of a WTF, the community development director may have the WTF removed and restore the premises as he/she deems appropriate. The city may, but shall not be required to, store the removed WTF (or any part thereof). The WTF permittee shall be liable for the entire cost of such removal, repair, restoration, and storage. The city may, in lieu of storing the removed WTF, convert it to the city s use, sell it, or dispose of it in any manner deemed appropriate by the city \ City Council Meeting 07-82

83 (d) Prior to commencing operations of a WTF, the permittee shall file with the city, and shall maintain in good standing throughout the term of its approval, a bond or other sufficient security in an amount equal to the cost of physically removing the WTF and all related facilities and equipment on the site, as determined by the community development director. However, the city may not require the owner or operator to post a cash deposit or establish a cash escrow account as security under this subsection. In setting the amount of the bond or security, the community development director shall take into consideration the permittee s estimate of removal costs Revocation of permit. (a) Permittees shall fully comply with all conditions related to any permit or approval granted under this article or any predecessors to this article. Failure to comply with any condition of approval or maintenance of the WTF in a matter that creates a public nuisance or otherwise causes jeopardy to the public health, welfare or safety shall constitute grounds for revocation. If such a violation is not remedied within a reasonable period, following written notice and an opportunity to cure, the community development director may schedule a public hearing before the planning commission to consider revocation of the permit. The planning commission revocation action may be appealed to the city council pursuant to Article (b) If the permit is revoked pursuant to this section, the permittee shall remove its WTF at its own expense and shall repair and restore the site to a condition that existed prior to the installation of the WTF or as required by the community development director within ninety (90) days of revocation in accordance with applicable health and safety requirements. The permittee shall be responsible for obtaining all necessary permits for removal of the WTF and site restoration. (c) At any time after ninety (90) days following permit revocation, the community development director may have the WTF removed and restore the premises as he/she deems appropriate. The city may, but shall not be required to, store the removed WTF (or any part thereof). The WTF permittee shall be liable for the entire cost of such removal, repair, restoration, and storage. The city may, in lieu of storing the removed WTF, convert it to the city s use, sell it, or dispose of it in any manner deemed appropriate by the city Use of outside consultants. From time to time the city may contract for the services of a qualified outside consultant to supplement staff in the review of proposed WTFs or in reviewing permittee compliance with this article or any predecessors to this article. The use of outside consultants shall be at the applicant or permittee s expense. The cost of these services shall be in addition to all other applicable fees associated with the project. The contracted or city staff services shall be paid by the project applicant, and shall be contracted for and administered by the city Relocation. If a WTF must be relocated or modified because of an abandonment, change of grade, alignment or width of any street, sidewalk or other public facility (including the construction, maintenance, or operation of any other city underground or aboveground facilities including, but not limited to, sewers, storm drains, conduits, gas, water, electric or other utility systems, or pipes owned by city or any other public agency), \ City Council Meeting 07-83

84 the permittee shall modify, remove, or relocate its WTF, or portion thereof, as necessary without cost or expense to city. Said modification, removal, or relocation of a WTF shall be completed within ninety (90) days of notification by the city unless exigencies dictate a shorter period for removal or relocation. In the event a WTF is not modified, removed, or relocated within said period of time, the city may cause the same to be done at the sole expense of permittee. Further, in the event of an emergency, the city may modify, remove, or relocate WTFs without prior notice to permittee provided permittee is notified within a reasonable period thereafter Modification of Existing WTFs. Pursuant to P.L , Section 6409, and notwithstanding any provision of this article to the contrary, a request for a modification of an existing wireless tower or base station for the collocation of new transmission equipment or removal or replacement of existing transmission equipment shall be approved ministerially without the processing of a discretionary use permit provided that such modification does not substantially change the physical dimensions of such tower or base station from the dimensions approved as part of the original discretionary permit for the tower or base station. However, any modification to a wireless tower or base station which substantially changes the physical dimensions of either the tower or base station, and any other modification to a WTF that does not qualify as a wireless tower or base station (as defined in this section), shall be subject to the permits and authorizations required by this article. For purposes of this section, the following definitions shall apply: Wireless tower means any structure built for the sole or primary purpose of supporting antennas and their associated facilities used to provide services licensed by the FCC. A water tower, utility tower, street light, or other structure built primarily for a purpose other than supporting services licensed by the FCC, including any structure installed pursuant to California Public Utility Code Section 7901, is not a wireless tower for purposes of this definition. Base station means the power supplies, electronic equipment housed in cabinets and antennas at an existing wireless tower site that together comprise a wireless tower. Substantially change the physical dimensions means any of the following, and refers to a single change, or a series of changes over time (whether made by the same or different entities) viewed against the initial approval for the tower or base station that cumulatively have any of the effects described below: 1. Changing any physical dimension of the wireless tower or base station in a manner that creates a safety hazard, whether from wind loading, stress on the wireless tower, or in any other manner. 2. Changing the physical dimension of a stealthed wireless tower, where the changes would be inconsistent with the design of the stealthed wireless tower, or make the wireless towers more visible. 3. Changing the physical dimensions would require work that would intrude upon the PROW, or any environmentally sensitive area. 4. Increasing by more than 10% any of the following: the height or width in any direction of the wireless tower, or the area required for structures required to support the wireless tower, such as guy wires as approved and constructed through the discretionary permit process; provided that in no event shall the height exceed the maximum height permitted under the city s regulations. 5. Increasing by more than 10% any of: the height or area encompassed within any structure or object enclosing the wireless tower, such as a fence or line of bushes. 6. Increasing any of an existing antenna array s depth, circumference or horizontal radius from the wireless tower in any direction by more than 10% \ City Council Meeting 07-84

85 7. Adding more than two antenna arrays to an existing wireless tower, or adding antenna arrays that, if the array were an existing array, would be of such depth, circumference or radius as to fall outside of section 6, unless such arrays were approved under Government Code Section The mounting of the new or replacement transmission equipment would involve installing new equipment cabinet(s) not permitted under the initial approval and that will not fit within the existing enclosure for the wireless tower or base station or would require installation of a new cabinet or enclosure, excluding new equipment and cabinets that will be installed underground. Each application submitted under this section shall be accompanied by: (a) a detailed description of the proposed modifications to the existing facilities; (b) a photograph or description of the wireless tower as originally constructed, if available, and, a photograph of the existing wireless tower and/or base station, and a graphic depiction of the wireless tower and/or base station after modification, showing all relevant dimensions; (c) a description of all construction that will be performed in connection with the proposed modification; and (d) a signed statement by a certified engineer, licensed and qualified in California, attesting that the work that will be performed will not trigger discretionary review under this section. Any permit issued will be conditioned, and may be revoked and the WTF required to be removed if (a) any statement made with respect to the WTF is false; or (b) the modifications actually made would have triggered a discretionary review Appeals. Any person dissatisfied with the decision to approve, deny, or revoke a conditional use permit for the construction or modification of a WTF, excluding exempt facilities identified in section , may file an appeal in accordance with Article \ City Council Meeting 07-85

86 Attachment 5 Telecommunications Commission Comments (staff responses in bold) September 28, 2011 MEMO TO: FROM: VIA: Mike Webb, Principal Planner Telecommunications Commission Kelly Stachowicz, Deputy City Manager The Telecommunications Commission met on September 14 and September 28 to discuss the proposed revisions to the telecommunications ordinance. On September 28, they voted unanimously (5-0) to express their general support for the changes to the telecommunications ordinance, which allow for processes to address new technologies. In addition to the proposed changes, the Commission has offered other comments, incorporated into their main motion, which they feel will further improve the ordinance. The comments/recommendations are included below in no particular order: j - Recommend that WiFi not required to be licensed specifically be exempted from ordinance. (The ordinance was developed in 1995 before unlicensed wireless routers in homes were widely used. Commission uncertain whether existing language already covers this, but if not, they would like to make sure it is included.) Recommendation incorporated into proposed wireless ordinance amendments see Section (l). 2. Recommend a Grandfather Clause current permitted or existing installations are now going to have to pay for RF testing. This new cost might be too onerous for an installation to absorb now or all at once. The wireless ordinance already includes an exemption for legal nonconforming uses see Section The current wireless ordinance also requires legal nonconforming WTF permitees to comply with public health safety and monitoring requirements. The proposed revision has added specific dates for providing monitoring data, as opposed to the current version, which requires the monitoring data to be provided upon the City s request for such data \ City Council Meeting 07-86