City Council - Successor Agency - Housing Authority
June 21, 2022

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ORDINANCE NO. ____

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY

OF FULLERTON, CALIFORNIA ADDING CHAPTER

15.53 AND MAKING RELATED CHANGES TO
CHAPTERS 15.55 AND 15.66 OF THE MUNICIPAL CODE

TO REVISE THE STANDARDS FOR WIRELESS

COMMUNICATIONS FACILITIES AND RELATED

INFRASTRUCTURE WITHIN THE PUBLIC RIGHT-OF-WAY

THE CITY COUNCIL OF THE CITY OF FULLERTON HERE BY ORDAINS AS FOLLOWS:

SECTION 1: Findings. The City Council finds as follows:

A. Section 332(c)(7)(B) of Title 47 of the United Stat es Code provides in part: “the regulation of the placement, constructi on, and modification of personal wireless
service facilities by any State or local government … shall not prohibit or have the effect of prohibiting the provision of personal wireless services.” B. Section 332(c)(7)(B)(iv) of Title 47 of t he United States Code states that “No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless se rvice facilities on the basis of the environmental effects of radio frequency emissi ons to the extent that such facilities comply with the Commission’s regulations concerning such emissions”; C. On September 26, 2018, the Federal Communications Commission (“FCC”) issued a Declaratory Ruling and Third Report and Order (“Declaratory Ruling”) adding regulations 47 C.F.R. 1.6001- 1.6004 which adopted new rules substantially revising the city’s authority to regulate the deployment of “small wireless facilities”; D. The Declaratory Ruling established new 60 and 90 da y presumptively reasonable periods in which a city must act upon proposed small wireless facilities; E. Under the police power of Article XI se ction 7 of the California Constitution, as confirmed in T-Mobile West LLC v. City and County of San Francisco (2019), cities retain the full authority to regulate telecommunication facilities in the right of way to the extent such regulat ions are not inconsis tent with general laws; F. The City also retains all local zoning po wers not specifically preempted by federal law (T-Mobile S., LLC v. City of Roswell (2015) 574 U.S. 293, 303); G. Although the Declaratory Ruling was largely upheld in City of Portland v. FCC (2020), that decision may be revised or overturned in part or in whole; EE

H. It is in the public interest for the City to update its regulations in a manner consistent with applicable law;
I. Unregulated
wireless communication facilities tend to cause visual blight and degrade the general welfare;
J. It is in the public interest to encourage wireless facilities to be located in non-residential zones and in locations other than areas immediately nearby residences and that such facilities to blend in with the urban landscape;
SECTION 2. Municipa l Code Amendment. A new Chapter 15.53, to be entitled, “Wireless Facilities in the Right of Way” is added to the Municipal Code to provide as follows:

15.53.010. Findings. The city council finds and determines as follows:

A. Section 7901 authorizes te lephone and wireless corporations to construct telephone or wireless telecommunication lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such point s as not to incommode the public use of the road or highway or interrupt the navigation of the waters.

B. Section 7901.1 of the Ca lifornia Public Utilities Co de confirms the right of municipalities to exercise reasonable cont rol as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the im position of fees.

Specifically, it has been determined by the c ourts that a municipality has authority to regulate the placement and appearance of te lecommunications equipment installed on its public rights-of-way, and that a muni cipality need not grant wireless providers blanket permission to install their equipm ent throughout a muni cipality, but may require wireless providers to go through a site-specific permitting process provided it is not so burdensome that it runs afoul of section 7901.

C. It is in the public interest for the city to es tablish reasonable regulations to promote and protect the city’s aesthetic values by regulating the time, place, and manner of installation of personal wireless facilities.

15.53.020. Definitions. The definitions provided in this section apply to this Chapter.

Undefined terms, phrases or words will have the meanings assigned to them in 47 U.S.C. § 153 or, if not defined therei n, will have the meaning assi gned to them in Fullerton Municipal Code. If any definition assigned in Section 15.53.020 conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.

A. “accessory equipment” means equipment other than antennas used in connection with a wireless facility or other infras tructure deployment. The term includes EE

“transmission equipment” as defined by the FCC in 47 C.F.R. § 1.6100(b)(8), as may be amended or superseded.

B. “antenna” means the same as defined by the FCC in 47 C.F.R. § 1.6002(b), as may be amended or superseded.

C. “batched application” means more than one application submitted at the same time.

D. “base station” means the power supplies, elec tronic equipment housed in cabinets and antennas at an existing wireless tower site that together comprise a wireless tower. Distributed Antenna Syst em installed pursuant to a Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission is not a base station for purposes of this definition.

E. “collocation” means the same as defined by the FCC in 47 C.F.R. § 1.6002(g), as may be amended or superseded.

F. “CPUC” means the California Public Utilities Commission established in the California Constitution, Article XII, § 5, or its duly appointed successor agency.

G. “decorative pole” means any pole that includes dec orative or ornamental features, design elements and/or materials intended to enhance the appearance of the pole or the public rights-of-way in which the pole is located.

H. “Director” means either the Public Works Dir ector (or designee) or the Community and Economic Development Director (or designee).

I. “FCC” means the Federal Communication s Commission or its duly appointed successor agency.

J. “FCC Shot Clock” means the presumptively reasonabl e time frame, accounting for any tolling or extension, wit hin which the City generally must act on a request for authorization in connection with a personal wireless service facility, as such time frame is defined by the FCC and as may be amended or superseded.

K. “local collector street” means a local collector str eet as shown on Exhibit 6, “Roadway Classifications” of the Fullerton Plan (General Plan) L. “local street” means a roadway that is not a ma jor, primary or secondary arterial highway, or a local collector street.

M. “major arterial highway” means a major arterial highway as shown on Exhibit 6, “Roadway Classifications” of the Fullerton Plan (General Plan).

N. “ministerial permit” means any City-issued non-disc retionary permit required to commence or complete any construction or other activity subject to the City’s jurisdiction. Ministerial permits may include, without limitation, any construction permit, electrical permit, encroachment permit, traf fic control permit and/or any similar over- the-counter approval issued by the City’s departments.

O. “personal wireless services” means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as may be amended or superseded.

P. “personal wireless service facilities” means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as may be amended or superseded.

Q. “primary arterial highway” means a primary arterial highway as shown on Exhibit 6, “Roadway Classifications” of the Fullerton Plan (General Plan).

R. “RF” means radio frequency or electromagnetic waves.

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S. “secondary arterial highway” means a secondary arterial highway as shown on Exhibit 6, “Roadway Class
ifications” of the Fullerton Plan (General Plan).

T. “shot clock days” means calendar days counted toward the presumptively reasonable time under the applicable FCC S hot Clock. The term “shot clock days” does not include any calendar days on which the FCC Shot Clock is tolled. As an illustration and not a limitation, if an applicant applies on February 1, receives a valid incomplete notice on February 5 and then re submits on February 20, only four “shot clock days” have elapsed because the time between the incomplete notice and resubmittal are not counted. In the event that the FCC S hot Clock is revised, shot clock days shall be calculated consistent with applicable law, as revised.

U. “small wireless facility” means the same as defined by the FCC in 47 C.F.R. § 1.6002(l), as it may be amended or superseded.

V. “substantially change the physical dimensions” has the same meaning as determined by the FCC as interpreted by applicable courts, and, unless otherwise preempted by law, includes (but is not limited to) 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 that individually or cumulatively have any of the effects described below:

1. Changing any physical dimens ion of the wireless tower or base station in a manner that creates a safety hazar d, whether from wind loading, stress on the wireless tower, or in any other manner.

2. Changing the physical dim ension of a wireless tower where the changes would be inconsistent with the design of the wireless tower, or make the wireless towers more visible.

3. Changing the physical dimensions would require work that would intrude upon the public right- of-way, or any environmentally sensitive area.

4. Increasing by more than t en (10) percent any of the fo llowing: 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 ten (10) percent 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 a rray’s depth, circumference or horizontal radius from the wireless tower in any direction by more than ten (10) percent.

7. Adding more than two (2) antenna arrays to an existing wireless tower, or adding antenna arrays that, if the array were an ex isting array, would be of such depth, circumference or radius as to fall outside of subsection (f) of this section unless such arrays were approved pursuant to Government Code section 65850.6.

8. The mounting of the new or replacement transmission equipment would involve installing new equipment cabinet(s) not permitted under the init ial approval and that will not fit within the existing enclosure for the wireless tower or base station EE

or would require installation of a new cabinet or enclosure, excluding new equipment and cabinets that will be installed underground.

W. “support structure” means a “structure” as defined by the FCC in 47 C.F.R. § 1.6002(m), as may be amended or superseded.

X. “technically infeasible” means a circumstance in whic h compliance with a specific requirement within this Code is physically impossible and not merely more difficult or expensive than a noncompliant alternative.

Y. “underground district” means any area in the City within which overhead wires, cables, cabinets and associated overhead equipment, appurtenances and other improvements are either (1) prohibited by ordinance, reso lution or other applicable law; (2) scheduled to be relocated underground within 18 months from the time an application is submitted; or (3) primarily located underground at the time an application is submitted.

Z. “wireless telecommunications facility” shall have the same meaning as that set forth in California Government Code 65850.6(d)(2) as may be amended from time to time.

AA. “wireless
tower” means any structure built for the sole purpose or primary purpose of supporting antennas and their associated facilities used to provide services licensed by the FCC. A Distributed Antenna System installed pursuant to a Certificate of Public Convenience and Necessity issued by the California Public Utilities Commission, a water tower, utility tower, str eet light, or other structure built primarily for a purpose other than supporting services licensed by t he FCC, including any structure installed pursuant to California Public Utility Code section 7901 is not a wireless tower for purposes of this definition.

15.53.030. Permits Required. The following regulatory provisions are applicable to users of telecommunications equipment in the public right-of-way, including but not limited to wireless telecommunications providers wh ich desire to provide telecommunications service by means of facilities that are pr oposed to be constructed within the city’s public rights-of-way.

Users of telecommunications equipment in the public right-of-way must obtain the following, as deemed applicable by the Director:

A. Wireless Permit . A Wireless Permit is a zoning permit required for the installation of any wireless telecommunication facility, support structure or wireless tower within the public right of way. The standards applicable to such permit applications are set forth in Municipal Code Section 15.53.050.

B. [Reserved]
C. Exemptions . Notwithstanding anything in this Code to the contrary, a Wireless Permit shall not be required for:

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1. City Facilities. Wireless facilities or other infrastructure deployments owned and operated by the City for its use.

2. OTARD. All over-the-air reception devices (OTARD), including all antennas and antenna supports covered by 47 C.F.R. § 1.4000(a)(1), as that section may be amended or superseded, except that antenna structures designed to transmit or receive radio communication by satellite antenna in commercial and industrial zones may be up to two meters in diameter.

3. Eligible Facilities Requests. “Eligible facilities requests” under 47 U.S.C. § 1455(a) for a “modification of an existing wireless tower or base station that does not substantially change the physical dimens ions of such tower or base station”, as those words and phrases as defined under federal statute or regulation, as they may be amended or superseded, except that such requests shall be subject to requirements of Municipal Code Section 15.53.110 (regarding Eligible Facilities Exemption Requests) below; or

4. Franchise Agreement. Wireless facilities or other infrastructure deployments covered by a valid franchise, pole lic ense or other encroachment agreement between the applicant and the City which authorizes the wireless facilities or other infrastructure deployments in the locations and manner proposed, which agreements were approved or revised consis tent with the requirements of this ordinance.

5. Violation of Law. Any activity where requiring th e applicable permit(s) would violate applicable law in a manner that cannot be resolved by means of subsection B.2 of section 15.53.050 (“Findings for Discr etionary Approval of Small Wireless Facilities and other Wireless Facilities”).

D. Other Permits and Approvals. In addition to a Wirele ss Permit, the applicant must obtain all other permits and regulatory approv als as may be required by any other federal, state or local gover nment agencies, including any ministerial permits and/or other approvals issued by other City departments or divisions. This includes, but is not limited to, a Public Works Permit, as outlined in Chapter 16.07 (Public Works Permits).

1. Any Wireless Permit granted under this Code shall remain subject to all lawful conditions and/or legal requirements as sociated with such other permits or approvals.

2. An exemption from the Wireless Permit requirement under subsection C of this Section does not exempt the same wireless facilities or other infrastructure deployments from any other permits or approvals, which includes without limitation any ministerial permits from the City (e.g., encroachment permits).

15.53.040. Wireless Permit Application Contents
A. Wireless Permit Application Contents. In addition t o the information required by this Code in connection with an application for any other required permit, a telephone corporation requesting a Wireless Permit must submit to the city the following information:

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1. Application Form. A complete, duly executed Wireless Permit on the forms prepared by the Director.

2. Application Fee. The applicable Wireless Permit application fee established by City Council resolution. Batched applications must include the applicable Wireless Permit application fee for each wireless facility in the batch. If no Wireless Permit application fee has been established, t hen the applicant must submit a signed written statement that acknowledges that the appl icant will be required to reimburse the City for its reasonable co sts incurred in connection with the application within 30 days after the City issues a written demand for reimbursement.

3. Construction Drawings. Construction drawings prepared and sealed by a California Registered Civil Engineer for projects within the public right-of-way that certifies and accurately depicts all the existing and proposed improvements, equipment and conditions related to the pr oposed project, which includes without limitation:
a. All poles, posts, pedestals, traffi c signals, towers, streets, sidewalks, pedestrian ramps, driveways, curbs, gutters, drains, handholes, manholes, fire hydrants, equipment cabi nets, antennas, utilities, cables, trees and other landscape features.
b. Cut sheets that contain the technical specifications for all existing and proposed antennas and accessory equipment, which includes without limitation the manufacturer, model number and physical dimensions;
c. Depict the applicant’s pr eliminary plan for electric and data backhaul utilities, which shall include the anticipated lo cations and depth for all trenching, conduits, cables, wires, handholes, junctions, transformers, meters, disconnect switches, and points of connection in a manner that meets the requirements of the Municipal Code and the Director of Public Works or designee, including compliance with Chapter II of Title 15 of the Municipal Code (Section 15-25 et seq.), “(Work on or Affecting Streets”).

4. Site Plan. A site plan prepared, signed and sealed by a California Registered Civil Engineer that certifies and accurately depicts all existing boundaries, encroachments and other structures within one hundred feet of the proposed project site and any new improvements, which includes without limitation:
a. Traffic lanes;
b. Private properties and property lines;
c. Above and below-grade utilities and related structures and encroachments including water lines and water meters;
d. Fire hydrants, roadsid e call boxes and other public safety infrastructure; EE

e. Streetlights, decorative poles, traffic signals (including t raffic signal equipment) and permanent signage;
f. Sidewalks, driveways, parkways, curbs, gutters and storm drains; g. Benches, trash cans, mailboxes, kiosks and other street furniture; h. Existing trees, planters and ot her landscaping features.

5. Photo Simulations. Site photographs and photo simulations that show the existing location and proposed wireless faci lity in context from at least three vantage points within the publ ic streets or other publicly accessible spaces, together with a vicinity map that show s the proposed site location and the photo location for each vantage point. At least one photo simulation must depict the wireless facility from a vantage point approximately 50 feet from the proposed support structure or location. The photo simulations and vicinity map shall be incorporated into the construction plans submitted with the application.

6. Project Narrative and Justification. A written statement t hat explains whether and why the proposed facility qualifies as a “small wireless facility” as defined by the FCC in 47 C.F.R. § 1.6002(l). A complete written narrative analysis will state the applicable standard and all the facts that allow the City to conclude the standard has been met. As part of the written statement the applicant must also include (i) whether and why the proposed support is a “structure” as defined by the FCC in 47 C.F.R. § 1.6002(m); and (ii) whether and why the proposed wireless facility meets each applicable provision of Section 15.53.040.C (“Review Criteria”).

7. RF Compliance Report. An RF exposure compliance report that certifies that the proposed wireless facility, both individually and cumulatively with all other emitters that contribute more than 5% to the cumula tive emissions in the vicinity (if any), will comply with applicable federal RF exposure standards and exposure limits.

The RF report must be prepared and certified by a California-licensed or California- registered electrical engineer with demonstrated expertise in RF calculations and reporting. The RF report must include t he actual frequency and power levels (in watts, effective radiated power) from all existing and proposed antennas at the site and exhibits that show the location and orientation of all transmitting antennas and the boundaries of areas with RF exposures in excess of the uncontrolled/general population limit (as that term is defined by the FCC) a nd also the boundaries of areas with RF exposures in excess of the controlled/occupational limit (as that term is defined by the FCC). Each such boundary shall be clearly marked and identified for every transmitting antenna at the project site. If the applicant submits a batched application, a separate site-specific RF report shall be prepared for each facility associated with the batch. Every RF repor t must be originally signed and by the person responsible for the contents of the report certifying the accuracy of the data contained therein; such reports may be submitted to the city electronically. The RF EE

report must include the engineer’s name, license number, and license expiration date.

8. CPCN. A copy of the certificate of public convenience and necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the telecommunication s service for which the facilities are proposed to be constructed in the city’s public rights-of-way.

9. Master Pole License Agreement. For any wireless facility proposed to be installed on any structure owned or c ontrolled by the City and located within the public rights-of-way, an executed Master Pole License Agreement on a form prepared by the City that states the terms and conditions for such non-exclusive use by the applicant. No changes shall be permitted to the Ma ster City’s Pole License Agreement except as may be indicated on the form itself or as deemed by the City Manager, in consultation with the City Attorney, to be immaterial and/or non-substantive. Any unpermitted changes to the Master City’s Pole License Agreement shall be deemed a basis to deem the application incomplete. Refusal to accept the terms and conditions in the City’s Pole License Agreement shall be an independently sufficient basis to deny the application without prejudice. Existing Pole License Agreements shall be deemed to meet the requirements of this section.

10. Property Owner’s Authorization. If the applicant is not the support structure owner, a written authorizati on (or other applicable form such as a joint pole authorization form pursuant to rules of the Southern Calif ornia Joint Pole Committee) executed by and fr om the support structure ow ner(s) that authorizes the applicant to submit and accept a Wireless Permit in connection with the subject support structure.

11. Structural Analysis. A report prepared and certified by a licensed engineer (or other qualified personnel acceptable to the City) that evaluates whether the underlying pole or support struct ure has the structural in tegrity to support all the proposed equipment and attachments. At a minimum, the analysis must be consistent with all applicable requirements in CPUC General Order 95 (including, but not limited to, load and pole overturnin g calculations), CPUC General Order 128 (for, but not limited to, underground facilities), and any safety and construction standards required by the utility. For joint utility poles, the applicant may submit a letter signed by the pole owner that certif ies (a) a structural analysis has been performed by a qualified engineer; (b) the pole has adequate structural capacity to support both the existing and proposed a ttachments; and (c) the pole owner assumes responsibility for any errors and omissions in the analysis and any liability that may arise in connection therewith.

12. Lighting (Photometric) Analysis . For any application which includes the adjustment to the height of a light fixture for a streetlight or which includes the EE

removal of any existing streetlight wit hout replacement, or which includes the replacement of a streetlight at a different height, at a different location or with a different bulb, a report prepared and cert ified by a licensed engineer (or other qualified person acceptable to City) that demonstrates that after project completion, light levels will remain substantially unchanged for the area covered by the removal/modification of existing street light or light fixture.

13. Site Selection Plan. Identify on a map all substantially different potential locations and support structures (no more than 10) within a radius of 500 feet from the proposed project site with proof that the alternative locations and support structures are no more-preferred per Section 15.53.060 than the proposed structure.

B. Additional Administrative Requirements and Regulations. The City Council authorizes the Director to develop, publish and from time to time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the Director finds necessary, appropriate or useful for processing any application governed under this Code. The City Council further authorizes the Director to establish other reasonable rules and regulations for duly filed applications, which may include without limitation regular hours for appointments and/or submittals without appointments, as the Direc tor deems necessary or appropriate to organize, document and m anage the application intake process, provided that such regulati ons or standards do not conflic t with any provision of the Code. All such requirements, materials, rules and regulations must be in written form, publicly stated, and made availa ble to the public pursuant to the FCC regulations to provide all interested parties with prior notice.

15.53.050. Standards for Permit Issuance. The purpose of this section is to establish the parameters for review of a Wireless Permi t to identify review criteria, processing procedures, regulations, and conditions for these requests.

A. Reviewing Authority. The Director is authorized to act on and grant approvals of a Wireless Permit for any small wireless facility; the Zoning Administrator is the authority for all other Wireless Permit applications.

B. Review Criteria :

1. Requirements for Ministerial Appr oval of Small Wireless Facilities. The Director shall ministerially approve, subj ect to the conditions stated in Section

15.53.100, a complete and duly filed applic ation for a Wirele ss Permit if the Director determines that:
a. the proposed project is a small wireless facility; and EE

b. the proposed project would not be located on a structure within the boundaries of the Central Business District (CBD) and would not be located on a new pole or support structure within a Residential Preservation Zone (P); and c. either: (i) the proposed project would meet the requirements of Section

15.53.060 (regarding preferred locations and structures) as compared to the other substantially differ ent potential alternatives within 500 feet of the proposed project or (ii) any more-preferred location(s) and support structure(s) within 500 feet would be technically infeasible; and
d. the proposed project complies with the requirements of Municipal Code section

15.53.070, (“Small Wireless Facility Setback Requirements”); and e. the proposed project will be in planned compliance with all applicable FCC regulations and guidelines for human exposure to RF emissions; and f. the proposed project complies with the P ublic Works Department standard plans and all other applicable standards in this Code.

2. Findings for Discretionary Approval of Small Wireless Facilities and other Wireless Facilities. If the proposal is for a telecommunications facility that does not meet all of the requirements of subsection B.1, immediately above, the Director shall issue the permit if the following fi ndings are made after conducting a public hearing (if a public hearing is required):

a. The proposed location for the faci lity is reasonable when considering both (i) the federal m andate to not regulate per sonal wireless service facilities in a manner that would “prohibit or have the effect of prohibiting the provision of personal wireless services”; and (ii) the city’s legitimate related policy objectives relating to the location of wireless facilities;

b. The proposed facility is substantiall y compatible with existing or planned developments and uses in the same general area and would not be substantially detrimental to existi ng or planned developments or uses within the general area.

c. The proposed facility will not be materially detrimental to the health, safety and general welfare of the public (excluding any environmental effects of radio frequency emissions to the extent that such facilities comply with the Federal Communica tion Commission’s regulations concerning such emissions).

d. Antennas and any poles or other st ructures erected to support antennas are visually compatible with their surroundings.

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3. Conditional Approvals; Denials Without Prejudice. Subject to any applicable federal or California laws, except to the extent contrary to a statement in this code, nothing in this code is intended to limit the ability to conditionally approve or deny without prejudice any Wireless Permit application as may be necessary or appropriate to ensure compliance with this code.

15.53.060. Small Wireless Facility Location and Structure Preferences Compliance with this section will occur if the applicant has demonstrated that each more- preferred location and structure within 500 feet of the proposed installation is “technically infeasible” as the term is defined in Sect ion 15.53.020. If there is conflict between obtaining a higher priority in subsection A (loc ation) versus B (structure), satisfying the location preferences in subsection A (location) shall be preferred. The Director shall not consider claims of an “effective prohibition” when making this determination of whether a structure or location is “feasible.”
A. Location Preference Hierarchy. The following are the City’s preferences for locations for small wireless facilities in the public rights-of-way , ordered from most preferred to least preferred:

1. Non-Residentia l Districts.

a. locations within, or immediately adjacent to, zones where residential uses are not permitted uses (e.g., industrial, co mmercial and industrial districts with no residential overlay) on or along major, primary or secondary arterial highways;

b. locations within, or immediately adjacent to, zones where residential uses are not permitted on or along local collector streets;

c. locations within, or immediately adjacent to, zones where residential uses are not permitted uses on or along local streets;

2. Residential O verlay Districts

a. locations within, or imm ediately adjacent to, zones where residential uses would be prohibited but for an overlay di strict, on or along major, primary or secondary arterial highways;

b. locations within, or imm ediately adjacent to, zones where residential uses would be prohibited but for an overlay district, on or along local collector streets;

c. locations within, or imm ediately adjacent to, zones where residential uses would be prohibited but for an overlay district, on or along local streets;

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3. Residential Districts and Schools

a. locations (a) within, or immediately adj acent to, zones where residential uses are permitted uses on or along major, primary or secondary arterials and (b) within or immediately adjacent to primary or secondary schools which is located on or along major, primary or secondary arterial highways;

b. locations (a) within, or immediately adj acent to, zones where residential uses are permitted uses on or along divided colle ctor arterials or collector arterials and (b) within or immediately adjacent to a primary or secondary schools which is located on or along local collector streets;

c. locations (a) within, or immediately adj acent to, zones where residential uses are permitted uses on or along local st reets and (b) within or immediately adjacent to a primary or secondary school located on or along local streets.

B. Support Structure Hierarchy. The following are the City’s preferences for support structures for small wireless facilities in the public rights-of-way , ordered from most preferred to least preferred:

1. existing or replacement light standards;

2. existing or new replacement utility poles;

3. new camouflaged standalone poles;

4. any other types of poles the Director determines meets the purposes of this chapter.

15.53.070. Small Wireless Facility Setback Requirements. Small Wireless Facilities shall meet the following requirements:

A. Setback from dwellings. Small wireless facilities, re gardless of zone, shall not be within 25 feet of any lawful dwelling unit.

B. Sight Distance Triangles. New or new replacement pol es (excluding street traffic light poles) shall not be placed within any sight distance triangles at any intersections.

C. Setbacks from Driveways. A pole in a new location or a replacement pole which is more than 1 foot from the pole being replaced, regardless of zone, must be placed at a distance not in violation of current city driveway appr oach standards (currently at least 7 feet away from any driveway), and at least 50 feet from any driveways for K- 12 schools, police stations, fire stations or other public or private emergency EE

responder facilities. A replacement pole which is in a location within 1 foot from the pole being replaced, must also meet these requirements, unless it infeasible to do so.

D. Near Property Lines. New or new replacement poles regardless of zone, shall be placed as close as feasible and in no event more than five feet of a property line between two parcels that abut the public right of way.

E. Historic Structures or Public Art. New poles (including replacement poles) shall not be installed within 100 feet of designated hi storic structures or local landmarks or public art.

F. Facility Distance. Facilities of the same company shall not be located within 500 feet of each other.

15.53.080. Design Standards
A. Finishes. All exterior surfaces shall be pai nted, colored and/or wrapped in flat, nonreflective hues that matc h the underlying support stru cture or blend with the surrounding environment. All finishes shall be subject to the Director’s prior approval.

B. Noise. Small wireless facilities and all associated antennas, accessory equipment and other improvements must comply individually and cumulatively with the requirements of Chapter 15.90 (“Noise Standards and Regulation), as may be amended.

C. Lights. All lights and light fixtures must be aimed and shielded so that their illumination effects are directed downwar ds and confined within the pu blic rights-of-way in a manner consistent with any other standards and specifications by the city engineer or his or her designee. All antennas, accessory equipment and other improvements with indicator or status lights must be insta lled in locations and within enclosures that mitigate illumination impacts visible from publicly accessible areas.

D. Trees and Landscaping. Small wireless facilities and other infrastructure deployments shall not be installed (in whole or in part) within any tree drip line. No tree may be altered, removed or replac ed unless such alteration, removal or replacement is approved by the Director. Small wireless facilities and other infrastructure deployments shall not cause t he removal of city installed landscaping except to the minimum extent necessary to allow the pole and related infrastructure and all other landscaping shall not be replaced with concrete.

E. Signs and Advertisements. All small wireless faciliti es and other infrastructure deployments that involve RF transmitters must include signage that accurately identifies the site owner/oper ator, the owner/oper ator’s site name or identification number and a toll-free number to the owner/operator’s network operations center.

Small wireless facilities and other infrastructure deployments may not bear any other EE

signage or advertisements unless expressly approved by the City, required by law or recommended under FCC or other United States governmental agencies for compliance with RF emissions regulations. Signs shall be no larger than required or recommended by FCC or other United States governmental regulations.

F. Site Security Measures. Small wireless facilities and other infrastructure deployments may incorporate reasonable a nd appropriate site security measures, such as locks and anti-climbing devices, to prevent unauthorized access, theft or vandalism.

G. Compliance with Health and Safety Regulations. All small wireless facilities and other infrastructure deployments shall be designed, construc ted, operated and maintained in compliance with all generally applicable health and safety regulations, which includes without limitation all applicable regulations for human exposure to RF emissions and compliance with the federal Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.) and similar laws.

H. Antennas. The provisions in this subsection (H) apply to all antennas.

1. Shrouding. All antennas, radio transmission equi pment (e.g., radio remote units or “RRUs”), and associated cables, jumpers, wires, mounts, masts, brackets and other connectors and hardware, must be installed within a single shroud or radome or within the pole.

a. Pole-Top Mounted. The shroud height for a pole-top mounted facility shall not exceed 84 inches and the shroud width shall not have a diameter in excess of 18 inches. The shroud must be uniform in diameter. Unless it is infeasible to do so, or would otherwise violate another city requirement, all small wireless facilities on utility poles shall be pole-top mounted.

b. Side-Mounted. If a small wireless facility cannot be pole-top mounted and is on a new pole that cannot feasibly serve as a streetlight pole, it shall be side mounted. The total volume of a shroud for a side mounted facility shall not exceed six cubic feet, and the greatest distance between two points on the shroud shall not exceed 4 feet. Side-mounted antennas shall not project: (i) more than 24 inches from the support structure; or (ii) over any abutting private property. If applicable laws require a conf iguration different than specified herein, configuration shall be no greater than required for compliance with such laws.

2. Overall Height. No antenna may extend more than 84” above the support structure, plus any minimum separat ion between the antenn a and other pole attachments required by applicable health and safety regulations. The height of a EE

non-utility pole replacement or new non-utility pole shall not exceed the height of adjacent poles of like kind or 37 feet, whichever is more restrictive.

I. Undergrounded Accessory Equipment.

1. Undergrounding. Accessory equipment (other than any emergency disconnect switches) shall be placed underground. Notwithstanding the preceding sentence, the Director may grant an exception when the applicant demonstrates by clear and convincing evidence that compliance wit h this section would be technically infeasible.

2. Vaults. Unless infeasible, no above-ground accessory equipment is allowed on the surface of the public Right-of-Way. Accessory equipment which is to be undergrounded must be instal led within the parkway landscaped or hardscaped area in a flush to grade underground vault t hat is load-rated to meet disabled access and City standards. Pull boxes must be installed with approved traffic lids.

Underground vaults must be c onstructed with a slip-resistant cover. Vaults shall be placed within landscaped parkways where such area exists. All new construction must meet current disabled access requirements and City standards.

J. Utilities. The provisions in this subsection (J ) are applicable to all utilities and other related improvements that se rve small wireless facilities and other infrastructure deployments.

1. Vertical Cable Risers. Unless it would violate General Order 95 or applicable law, all cables, wires and other connectors must be routed through conduits within the pole or other support struct ure, and all conduit attachm ents, cables, wires and other connectors must be concealed from p ublic view. To the extent that cables, wires and other connectors cannot be routed through the pole, such as with wood utility poles, applicants shall route them through a single external conduit or shroud that has been finished to match the underlying pole.

2. Spools and Coils. To reduce clutter and deter v andalism, excess fiber optic or coaxial cables shall not be spooled, coiled or otherwise stored on the pole outside equipment cabinets or shrouds.

3. Electric Meters. Unless technically infeasible, small wireless facilities and other infrastructure deployments shall use flat-rate electric service or other method that obviates the need for a separate above-grade electric meter.

4. Existing Conduit or Circuits. To reduce unnecessary wear and tear on the public rights-of-way, applicants are encouraged to use existing conduits and/or electric circuits whenever available and technically feasible.

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K. Prohibited Support Structures. Small wireless facilities may not be on existing street light poles, decorative poles, banner poles, or any utility pole scheduled for removal or relocation within 18 months from the time the Director acts on the small wireless facility application; on strands or wires between any structures.

L. Encroachments Over Private Property. No small cell antennas, accessory equipment or other improvement s may encroach onto or ov er any private or other property outside the public rights-of-way without the property owner’s express written consent.

M. No Interference with Other Uses. Small wireless facilities and any associated antennas, accessory equipment or improvements shall not be located in any place or manner that would physicall y interfere with or impede access to any: (1) worker access to any above-ground or underground infrastructure for traffic control, streetlight or public transportation, including without li mitation any curb control sign, parking meter, vehicular traffic sign or signal, ped estrian traffic sign or signal, barricade reflectors; (2) access to any public transportation vehicles, shelters, street furniture or other improvements at any public transporta tion stop; (3) worker access to above- ground or underground infrastructure owned or operated by any public or private utility agency; (4) fire hydrant or water valve; (5) access to any doors, gates, sidewalk doors, passage doors, stoops or other ingress and egress points to any building appurtenant to the rights-of-way; or (6) access to any fire escape.

N. Replacement Poles.

1. All replacement poles must:
a. be located in a manner consistent with City Standard 550 as it may be amended from time to time
b. be aligned with the other existing poles along the public rights-of-way; c. maintain the prior-existing street light illumination pattern; and d. comply with all applicable standards and specifications by the Director.

2. Additionally, if the applicant proposes to replace an existing high-voltage pole:
a. the existing high-voltage pole shall be replaced with a low voltage pole, unless doing so is technically infeasible;
b. the replacement pole shall be installed directly across the street, unless doing so is technically infeasible, or the di rector approves an alte rnate location in close proximity to the pole that is being removed;
c. The replacement pole shall include an operational light arm, unless the director indicates that the director prefers t hat the pole instead merely be capable of allowing the addition of a light arm which can be added at a later date; d. The permittee shall offer the ownership of the new pole to City.

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15.53.090. Application Processing.

A. Zoning Review Process. The Wireless Permit shall be subject to the following application review process:

1. Submittal. FCC regulations provide safe ha rbor time periods and completeness requirements that apply to all approvals relating to wireless facility deployments.

Applicants are encouraged to provide all related applications in one submittal. a. Voluntary Pre-submittal Conference. The City strongly encourages, but does not require, applicants to schedule and attend a pre-submittal conference with the Director and other City staff. This voluntary, pre-submittal conference does not cause the FCC Shot Clock to begin and is intended to streamline the review process.
b. Incomplete Applications D eemed Automatically Withdrawn. Any application governed under this Code shall be automatically deemed denied if the applicant fails to submit a substant ive response to the Director within 120 calendar days after the Director deems t he application incomplete by written notice. As used in this subsection 3, a “substantive response” must include, at a minimum, the complete materials ident ified as incomplete in the written incomplete notice. An application deemed automatically denied shall be denied without prejudice; a follo w-on application for the sa me location may be resubmitted at no additional cost within 6 months of the denied application.

2. Notices of Discret ionary Decisions. No notice is required to be provided prior to a decision on a ministerial permit applicatio n. In addition to any noticing that may be required by Section 15.66 (for Zoning Ad ministrator Decisions) notices of an upcoming discretionary Director, Zoning Administrator or City Manager Wireless Permit decision shall be provided to the applicant and all property owners within 300 feet of the proposed facilit y. At least ten calendar days prior to the public hearing, notice of the upcoming discretionary Director, Zoning Administrator or City Manager Wireless Permit decisions shall be mailed to the applicant and owners of property within three hundred (300) feet of the boundaries of the proposed facility, as shown on the last equalized assessment roll or, alternatively, from such other records as contain more recent addresses. At least ten calendar days prior to the public hearing, a notice of t he hearing shall be posted at t he project site in clear public view.

3. Written Decision. If the Director, Zoning Administ rator or City Manager takes action on a discretionary Wireless Permit application (with or without prejudice) for a wireless facility, the decision must be written and state the reasons for the action.

Any such notice shall also be posted to the City’s website.

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4. Appeals of Director Decisi ons on Small Wireless Facilities. Any affected person or entity may appeal a decision of the Director made pursuant to this Chapter 15.53 to the City Manager.
a. Appeal Fee. The City Council may est ablish and amend the amount of such appeal by resolution.
b. The decision of the City Manager shall be final and cannot be referred to, appealed to, or called for review, to either the Planning Commission or the City Council.
c. Appeals from an approval shall not be permitted when based solely on the environmental effects of radio frequency emissions if such facilities comply with the Federal Communication Commission’s regulations concerning such emissions.
d. An application for appeal of a Director decision hereunder must be filed within three (3) calendar days after the date the written decision being appealed was posted to the City’s website. If the final day for filing an application for appeal falls on a holiday or weekend day when city hall is closed, the application shall be filed no later than the next busine ss day. The application for appeal must contain a short and plain statement about the basis for the appeal, which may be supplemented after the appeal period has expired but before the appeal is considered.
e. The City Manager shall consider appeals de novo.
f. Within five (5) calendar days of issuanc e of the decision, the City Manager is directed to issue the applicant written notice of the de cision and to post the decision on the City’s website.

5. Appeals of Zoning Admi nistrator Decisions. Any affected person or entity may appeal a decision of the Zoning Administrator made pursuant to this Chapter 15.53 to the Planning Commission.

a. Appeal Fee. The City Council may est ablish and amend the amount of such appeal by resolution.
b. Such decisions of the Planning Commission ma y be made to the Planning Commission, which decision may not be subsequently appealed to, or called for review by, the City Council.
c. Appeals from an approval shall not be permitted when based solely on the environmental effects of radio frequency em issions to the extent that such facilities comply with the Federal Communication Commission’s regulations concerning such emissions.

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d. An application for appeal must be filed within three (3) calendar days after the date the written decision being appealed was posted to the City’s website. The application for appeal must contain a short and plain statement about the basis for the appeal, which may be supplemented after the appeal period has expired but before the appeal hearing.
e. The Planning Commission shall hear appeals de novo.
f. Within five calendar days of issuance of the decision, the Director is directed to issue the applicant written notice of the decision and post the decision on the city’s website.

B. Concurrent Review by Public Works Department. The Director is authorized to:

1. Process applications for encroachment permi ts concurrently with applications for Wireless Permits if the applicant signs an agreement on a form acceptable to the City Attorney in which the applicant agrees to hold the city harmless from any responsibilities, including but not limited to , any costs associated with concurrent processing. However, the Director shall not authorize the installation of fiber optic or other similar cabling in the street unless either (a) the wireless facilities for which such cabling is associated have been subst antially installed; or (b) the applicant has provided the city financ ial guarantees sufficient to ensure the full removal of such cabling and repair of the street if such wireless facilities are not installed.

2. Act on and grant approvals of encroac hment permits related to wireless telecommunications facilities in the public right-of-way that have obtained an approval of a Wireless Permit.

3. Forward any request for a permit related to a wireless telecommunications facility in the public right-of-way to the Directo r for review. The application process for these referrals to the Director shall be subject to the same procedures, purpose, conditions, review criteria, and findings as described for a Wireless Permit.

15.53.100. Conditions of Approval for Permits. Condition(s) of approval for the application shall assure compliance with the app licable provisions of federal, state and local laws, assure compatibility with su rrounding properties and uses, and protect the public health, safety and general welfare. E xcept as may be authorized in subsection B of this section 15.53.100 (“Modified Conditions”), below, all Wireless Permit issued under this code shall be automatically subject to t he conditions in the following subsection (A).

The Director may amend these conditions to comply with federal, state and local laws.

A. Standard Conditions.

1. Compliance with Plans. The use shall be limited to the project approved by the City in writing on ( approval date). Any wirele ss device modification including collocating on/with the facility approved under this application, shall be subject to Director review and may require an amendment to the permit, EE

subject to either staff or Planning Commission approval, depending on the nature of the proposed change.

2. Permit Term. This permit will automatically expire 10 years and one day from its issuance unless (1) the City makes finding of public safety reasons or substantial land use reasons to justif y a specified shorter duration or (2) California Government Code § 65964(b) is revised to establish a presumptive period shorter than 10 years in which case the period shall be automatically reduced to that shorter period. Any ot her permits or approvals issued in connection with any collocation, modificati on or other change to this wireless facility, which includes without limitat ion any permits or other approvals deemed-granted or deemed-approved under federal or state law (including any “eligible facilities request”), will not ex tend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law.

3. Permit Renewal. Not more than one year before this Wireless Permit expires, the permittee (hereafter, a permittee s hall mean permittee or its successors) may apply for permit renewal. The permittee must demonstrate that the subject wireless facility or other infrastructu re deployment complies with all the conditions of approval associated with this Wireless Permit and all applicable provisions in the Fullerton Municipal Code that exist at the time the decision to renew or not renew is rendered. The Director may modify or amend the conditions on a case-by-case basis as may be necessary or appropriate to ensure compliance with the Fullerton Municipal Code, this Code, or other applicable law. Upon renewal, this Wireless Permit will automatically expire 10 years and one day from its issuance.

4. Post-Installation Certification. Within 60 calendar da ys after the permittee commences full, unattended operations of a wireless facility or other infrastructure deployment approved or deemed-approved, the permittee shall provide the Director with documentation reasonably acceptable to the Director that the wireless facility or other infrastructure deployment has been installed and/or constructed in strict compli ance with the approved construction drawings and applicable FCC requirement s. (See Section 15.53.040.A.7 for applicable requirements). Such documentat ion shall include without limitation GIS data and site photographs. Such documentation shall also include a report from a California licensed electrical engineer confirming that on-site RF testing was completed after the permittee commenced full, unattended operations and which testing confirmed compliance wit h all applicable RF requirements and the RF compliance report.

5. Build-Out Period. This Wireless Permit will automatically expire 18 months after the approval date unless the pe rmittee commences construction within that period or the Director grants, in writing, one extension of time for a period EE

of not more than 6 months. The applicant shall request an extension pursuant to this subdivision in writing and demonstrate justifiable cause for the extension.

If this build-out period expires, the pe rmit shall be automatically void but the permittee may immediately or therea fter submit a new and complete application, including all appl ication fees, for the same or substantially similar project.

6. Site Maintenance. The permittee shall keep the site, which includes without limitation any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean and safe condition in accordance with the approved construction drawings and all conditions in the Wireless Permit. The permittee shall keep t he site area free from all litter and debris at all times. The permittee, at no cost to the City, shall remove and remediate any graffiti or other vandalis m or remediate conditions that violate the permit at the site within 48 hours a fter the permittee rece ives notice or otherwise becomes aware that such gr affiti or other vandalism occurred.

Applicant shall obtain an Encroachment Permit from the Public Works Department for any work on public rights-of-way, as determined by the Director.

7. Compliance with Laws. The permittee shall maintain compliance at all times with all federal, state and lo cal statutes, regulations, orders or other rules that carry the force of law (“laws”) applicable to the permittee, the subject property, the wireless facility or other infrastructu re deployment or any use or activities in connection with the use authorized in this Wireless Permit, which includes without limitation any laws applicable to human exposure to RF emissions. If the City determines that the wireless fa cility is operating in violation of applicable RF emission standards, the facility shall immediately shut down and not re-start operations until the city confirms that the facility has been returned to full compliance with federal RF emission standards. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific r equirements in these conditions are intended to reduce, relieve or otherwis e lessen the permittee’s obligations to maintain compliance with all laws. No failure or omission by the City to timely notice, prompt or enforce complianc e with any applicable provision in the Fullerton Municipal Code, any permit condition or any applicable law or regulation, shall be deemed to relieve, waive or lessen the permittee’s obligation to comply in all respects with all applicable provisions in the Fullerton Municipal Code, any permit, any permit condition or any applicable law or regulation.

8. Adverse Physical Impacts on Other Properties. The permittee shall use all reasonable efforts to avoid any and all unreasonable, undue or unnecessary adverse physical impacts on nearby pr operties that may arise from the permittee’s or its authorized personnel’s construction, installation, operation, EE

modification, maintenance, repair, remova l and/or other activities on or about the site. The permittee shall not perfo rm or cause others to perform any construction, installation, operation, modification, maintenance, repair, removal or other work that involves heavy equipment or machines except during normal construction work hours authorized by the Fullerton Municipal Code. The restricted work hours in this condition will not prohibit any work required to prevent an actual, immediate harm to property or persons, or any work during an emergency declared by the City or other state or federal government agency or official with authority to declare an emergency within the City. The Director may issue a stop work order for any activi ties that violates this condition in whole or in part. Permittee agrees to fu lly cooperate with the City in assisting the City to achieve its accommodation obligations under the Americans with Disabilities Act, the Fair Housing Act Amendments of 1988 and other applicable laws.

9. Inspections; Emergencies. The Permittee expressly acknowledges and agrees that the City’s officers, officials, staff, agents, contractors or other City designees may enter onto the site and inspect the im provements and equipment upon reasonable prior notice to the permittee. Notwithstanding the prior sentence, the City’s officers, officials, staff, agents, co ntractors or other City designees may, but will not be obligated to, enter onto the site area without prior notice to support, repair, disabl e or remove any improvements or equipment in emergencies or when such improvements or equipment threatens actual, imminent harm to persons or pr operty. The permittee, if present, may observe the City’s officers, officials, staff or other desi gnees while any such inspection or emergency access occurs.

10. Permittee’s Contact Information. Within 10 days from the final approval, the permittee shall furnish the City with accurate and up-to-date contact information for a person responsible for the wireles s facility or other infrastructure deployment, which includes wit hout limitation such pers on’s full name, title, direct telephone number, mailing addre ss and email address. The permittee shall keep such contact information up-to-date at all times and promptly provide the City with updated contact information if either the responsible person or such person’s contact information changes. Such contact information shall be made publicly available on the City websit e to permit the public to contact the site operator to address any concerns, including but not limited to, excess noise; the Permittee shall display its contact information on the pole.

11. Indemnification. The permittee and, if applicab le, the property owner upon which the wireless facility or other infrastructure deployment is installed shall defend, indemnify and hold harmless t he City, City Council and the City’s boards, commissions, agents, officers, offi cials, employees and volunteers (collectively, the “indemnitees”) from any and all (i) damages, liabilities, injuries, EE

losses, costs and expenses and from any and all claims, demands, lawsuits, writs and other actions or proceedi ngs (“claims”) brought against the indemnitees to challenge, a ttack, seek to modify, set aside, void or annul the City’s approval of this Wireless Permit, and (ii) other claims of any kind or form, whether for personal injury, death or pr operty damage, that arise from or in connection with the permittee’s or its agents’, directors’, officers’, employees’, contractors’, subcontractors’, licensees’ or customers’ acts or omissions in connection with Wireless Permit or the wirel ess facility or other infrastructure deployment. In the event the City becom es aware of any claims, the City will use best efforts to promptly notify the permittee and the private property owner (if applicable) and shall reasonably cooperate in the defense. Permittee agrees that the City shall have the right to approve, which approv al shall not be unreasonably withheld, the legal counsel providing the City’s defense, and the property owner and/or permittee (as applic able) shall promptly reimburse the City for any costs and expenses directly and necessarily incurred by the City in the course of the defense. Permittee agrees that the permittee’s indemnification obligations under this condition are a material consideration that motivates the City to approve this Wireless Permits, and that such indemnification obligations will survive the expiration, revocation or other termination of this Wireless Permit.

12. Surety Bond. Before the City issues any permits required to commence construction in connection with this permit, the permittee shall post a bond from a surety company authorized to transact bus iness in the State of California in a form acceptable to the Director in an amount equal to the estimated amount of performing the work, plus 50%, to cover the cost to remove the improvements, restore all affected areas based on a written estimate from a qualified contractor with experience in wireless facilities or other infrastructure removal. The written estimate must in clude the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilitie s, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, to wers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws, including any street cuts or pavement re storation requirements. In establishing or adjusting the bond amount required under this conditi on, the Director shall take into consideration any information provided by the permittee regarding the cost to remove the wireless facility or other in frastructure deployment to a standard compliant with applicable laws. The bond s hall expressly survive the duration of the permit term to the extent required to effectuate a complete removal of the subject wireless facility or other infrastructure deployment in accordance with this condition.

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13. Permit Revocation. Any permit granted under this code may be revoked in accordance with the provisions and proc edures of Municipal Code section

15.70.090 (“Revocation”) except that refe rences to a conditional use permit shall be considered references to a wireless permit.

14. Record Retention. Throughout the permit term and fo r a period of four years after the expiration or earlier termination of the permit, the permittee must maintain a complete and accurate copy of the written administrative record, which includes without lim itation the Wireless Permi t application, Wireless Permit, the approved plans and photo si mulations incorporated into this approval, all conditions associated with this approval, any ministerial permits or approvals issued in connection with this approval and any records, memoranda, documents, papers and other correspondence entered into the public record in connection with the Wireless Permit (collectively, “records”). If the permittee does not maintain such records as required in this condition, any ambiguities or uncertainties that would be resolved by inspecting the missing records will be construed against the permittee. The permittee shall protect all records from damage from fires, floods and other hazards that may cause deterioration. The permittee may k eep records in an electronic format; provided, however, that hard copies or electronic records kept in the City’s regular files will control over any conflicts between such City-controlled copies or records and the permittee’s electronic copies, and complete originals will control over all other copies in any fo rm. The requirements in this condition shall not be construed to create any obligation to create or prepare any records not otherwise required to be created or prepared by other applicable laws.

Compliance with the requirements in th is condition shall not excuse the permittee from any other similar reco rd-retention obligations under applicable law.

15. Abandoned Facilities and Cessation of Operation. The wireless facility or other infrastructure deployment authorized under this Wireless Permit shall be deemed abandoned if not operated in its permitted manner for any continuous six-month period. Within 90 days after a wireless facility or other infrastructure deployment is abandoned or deemed a bandoned, the permittee and/or property owner shall completely remove the wireless facility or other infrastructure deployment and all rela ted improvements and shall restore all affected areas to a condition compliant with all applicable laws, which includes without limitation the Fullert on Municipal Code. In the event that neither the permittee nor the property owner complie s with the removal and restoration obligations under this condition within sa id 90-day period, the City shall have the right (but not the obli gation) to perform such removal and restoration with or without notice, and the permittee and property owner shall be jointly and severally liable for all costs and expenses incurred by the City in connection with such removal and/or restoration activities. The Permittee shall obtain a EE

separate encroachment permit from the Public Works Department for any work related to the abandonment of existing wireless facilities.

16. Landscaping. The permittee shall protect existing street tree(s) and not impact its growth patterns. The permittee sh all replace any landscape features damaged or displaced by the construction, installation, operation, maintenance or other work performed by the permittee or at the permittee’s direction on or about the site. If any trees are damaged or displaced, as determined by the City, the permittee shall hire and pay for a licensed arborist to select, plant and maintain replacement landscaping in an appropriate location for the species, subject to Chapter 9.06 (“Community Forestry”), and especially section

9.06.100 (“Alteration and removal of street trees”). See also Chapter 15.50 (“Landscaping and Irrigation Requirement s”). Only workers under the supervision of an International Society of Arboriculture certified arborist shall be used to install the replacement tree(s).

17. Cost Reimbursement. The permittee acknowledges and agrees that (i) the permittee’s request for authorization to c onstruct, install and/or operate the wireless facility will cause the City to incur costs and expenses; (ii) the permittee shall be responsible to reimburse the City for all reasonable costs incurred in connection with the permit, which includes without limitation costs related to application review, plan checking, permi t issuance, site inspection and any other costs reasonably related to or caused by the request for authorization to construct, install and/or operate the wireless facility or other infrastructure deployment, including any third party cost s; (iii) any application fees required for the application may not cover all su ch reimbursable costs and that the permittee shall have the obligation to reim burse the City for all such costs 10 days after a written demand for reimbursement and reasonable documentation to support such costs; and (iv) the City shall have t he right to withhold any permits or other approvals in connection with the wireless facility until and unless any outstanding costs have been reimbursed to the City by the permittee.

18. Underground Equipment. Unless infeasible, no above-ground accessory equipment is allowed on the surface of the public Rig ht-of-Way. Accessory equipment which is to be undergrounded must be installed within the parkway landscaped or hardscaped ar ea in a flush to grade un derground vault that is load-rated to meet disabled access and City standards, if applicable. Pull boxes must be installed with approved traffi c lids. Underground vaults must be constructed with a slip-resistant cover. Vaults shall be placed within landscaped parkways where such area exists. All new construction must meet current disabled access requirements and City standards

19. Future Undergrounding Programs. Notwithstanding any term remaining on any Wireless Permit, if other utilities or communications providers in the public EE

rights-of-way underground their facilities in the segment of the public rights-of- way where the permittee’s small wirele ss facility or other infrastructure deployment is located, the permitt ee must also underground its equipment, except the antennas and any approved electric meter, at approximately the same time. Accessory equipment such as radios and comput ers that require an environmentally controlled underground vault to function shall not be exempt from this condition. Small wireless facilities and other infrastructure deployments installed on wood utility poles that will be removed pursuant to the undergrounding program may be reinstalled on a streetlight that complies with the City’s standards and specifications. Such undergrounding shall occur at the permittee’s sole cost and expense except as may be reimbursed through tariffs approved by the state public utilities commission for undergrounding costs.

20. Electric Power Meters. If the commercial electric utility provider has or in the future adopts or changes its rules obviating the need for a separate or ground- mounted electric meter and enclosure, including but not limited to the use of an unmetered connection to the electrical power grid, the permittee on its own initiative and at its sole cost and expense shall remove the separate or ground- mounted electric meter and enclosure. Prior to removing the electric meter, the permittee shall apply for any encroachment and/or other ministerial permit(s) required to perform the removal. Upon removal, the permittee shall restore the affected area to its original condition t hat existed prior to installation of the equipment.

21. Rearrangement and Relocation. The permittee acknowledges that the City, in its sole discretion and at any time , may: (A) change any street grade, width or location; (B) add, remove or ot herwise change any impr ovements in, on, under or along any street owned by the City or any other public agency, which includes without limitation any sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles and utility system s for gas, water, electric or telecommunications; and/or (C) perform any other work deemed necessary, useful or desirable by the City (collectively, “City work”). The City reserves the rights to do any and all City work without any admission on its part that the City would not have such rights without the ex press reservation in this Wireless Permit. If the Director determines that any City work will require the permittee’s wireless facility located in the public rights-of-way to be rearranged and/or relocated, the permittee shall, at its so le cost and expense, do or cause to be done all things necessary to accomplish such rearrangement and/or relocation.

If, for example, the permittee places a new standalone pole in the right of way, and the city later replaces its existing high-voltage streetlights with low-voltage streetlights, the city may require permi ttee, at permittee’s sole expense, to promptly cause the removal of permittee’s pole; in such event, the City will offer the use of one or more nearby city owned pole(s) for use by the applicant to the same extent, and under the same terms and conditions that such poles EE

would be made available to any new applicant for a wir eless facility. If the permittee fails or refuses to either permanently or temporarily rearrange and/or relocate the permittee’s wireless facility or other infrastructure deployment within a reasonable time after the Direc tor’s notice, the City may (but will not be obligated to) cause the rearrangement or relocation to be performed at the permittee’s sole cost and expense. The City may exercise its rights to rearrange or relocate the permittee’s wireless facility or other infrastructure deployment without prior notice to permittee when the Director determines that City work is immediately necessary to protect public health or safety. The permittee shall reimburse the City for a ll costs and expenses in connection with such work within 30 days after a written demand for reimbursement and reasonable documentation to support such costs.

22. Truthful and Accurate Statements. The permittee acknowledges that the City’s approval relies on the written and/or oral statements by permittee and/or persons authorized to act on permittee’s behalf. In any matter before the City in connection with the Wireless Permit or the wireless facility or other infrastructure approved under the Wirele ss Permit, neither the permittee nor any person authorized to act on permittee’s behalf shall, in any written or oral statement, intentionally provide material factual information that is incorrect or misleading or intentionally omit any mate rial information necessary to prevent any material factual statement from being incorrect or misleading.

B. Modified Conditions. The Director may modify, add or remove conditions to any Wireless Permit the Director deems appropriate to: (1) protect and/or promote the public health, safety and welfare; (2) tailo r the standard conditions in subsection (A), of this section, above, to the particular facts and circum stances associated with the deployment; and/or (3) memo rialize any changes to the proposed deployment need for compliance with the Fullerton Munici pal Code, generally applicable health and safety requirements and/or any other applic able laws. To the extent required by applicable FCC regulations, t he Director shall ensure that any different conditions applied to wireless facilities are no more burdensome than those applied to other infrastructure deployments.

C. Reservation of Rights. The City reserves all rights t hat it now possesses or may later acquire with respect to the regulation of any cable or telecommunications service that is provided, or propos ed to be provided, by a tele phone corporation. These reserved rights may relate, without limitat ion, to the imposition of reasonable conditions in addition to or different from those set forth in this section, the exaction of a fee or other form of consideration or co mpensation for use of public rights-of-way, execution of a leasing agreement, and relat ed matters; provided, however, that such regulatory rights and author ity must be consistent with f ederal and state law that is applicable to cable or telecommunications services provided by telephone corporations.

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15.53.110. Eligible Facilities Requests . Consistent with subsection Municipal Code section 15.53.030.C.3, and consistent with 47 U.S.C. § 1455, a request for a modification of an existing wireless tower or base stati on for the collocation of new transmission equipment or removal or replacement of existing transmission equipment shall not require a Wireless Permit provided that such modifi cation does not substantially change the physical dimensions of such tower or base station from the dimensions approved as part of the original discretionar y permit for the tower or bas e station. However, any modification to a wireless tower or base station which substantially changes the physical dimensions of either the towe r or base station, and any other modification to a wireless telecommunications facility that does not qualif y as a wireless tower or base station (as defined in this section) shall obtain any r equired Wireless Permit. Notwithstanding the foregoing, any eligible facilities request mu st obtain any other required permit(s) ( e.g., encroachment permit). Encroachment permits for any eligible facility shall not be issued unless the applicant provides all application materials required by the Director in addition to the information listed in subsections 8 through 12 of subsection A of Section 15.53.040 (“Wireless Permit Application Contents”).

A. Application . Each request for an exemption submitted under this subsection (d) shall be accompanied by:

1. Application Form. A complete, duly executed Eligible Facilities Exemption Request application on the then-current form prepared by the Director.

2. Application Fee. The applicable Eligible Facilities Exemption Request application fee established by City Council resoluti on. Batched applications must include the applicable Eligible Facilities Exemption Request application fee for each wireless facility in the batch. If no Wireless Permi t application fee has been established, then the applicant must submit a signed written statement that acknowledges that the applicant will be required to reimburse the City for its reasonable costs incurred in connection with the applicat ion within 10 days after the City issues a written demand for reimbursement.

3. Description. A detailed description of the proposed modificati on to the existing facilities;

4. Visual Depictions. A photograph, description, and as- built plans of the wireless tower and/or base station as originally constructed, and a photo-simulation, description and construction drawings of the wireless tower and/or base station after modification, showing all relevant dimensions.

B. Encroachment Permits. Any encroachment permit issued for a facility determined to be an eligible facility under this section 15.53.110 will be subject to all conditions EE

required by the Director. Additionally, su ch encroachment permit shall include all standard conditions for Wireless Permits (See Section 15.53.100)

1. all references in the standard conditions to Wireless Permits shall be deemed to be references to the encroachment permit;

2. notwithstanding Section 15. 53.100.A.5 (Build Out Pe riod), the encroachment permit build-out period will automatically ex pire 6 months after the approval date unless the permittee commences construction within that period; and

3. notwithstanding subsection 15.53.100.A.13 (Permit Revocation), the encroachment permit may be revoked in accordance with the provisions of Municipal Code section 15.070.090 (“Revocation”) except that all references to the conditional use permit shall be references to an encroachment permit.

SECTION 3. Section 15.55.020. The first sentence in subsection B. of Section

15.55.020 (“Special Uses Permitted With Provisions”) within Chapter 15.55 (“Provisions and Conditions for Special Uses”) is revised as follows, with new text in underline.

B. Commercial telecommunication facility on privat e property (for telecommunications facilities in the right of way, see Chapter 15.53).

SECTION 4. Chapter 15.66. Chapter 15.66 of the Municipa l Code, entitled, “Minor Exceptions is hereby revised as follows ( with new additions appearing in underline, and deletions appearing in strikethrough:

15.66.010. Intent and purpose.

A. There is created a separat e category of application pur suant to Government Code 65900 to provide a simplified means for cons idering, for practical reasons, certain minor requests consistent with the intent and purpose of this title.

B. Minor deviations from certain development standards set forth in this title shall be termed Minor Exceptions. Unless otherwise pr ovided by amendment to this chapter, said Minor Exceptions shall consist of the following, where it can be determined that the project is exempt from CEQA.

1. A decrease of not more than 5 per cent in parking space dimensions;

2. A decrease of not more than 20 percent of required setbacks;

3. An increase of not more than 20 percent of maximum wall heights; and

4. A deviation of not more than 10 percent of a ll other mathematically measured or computed standards in this title.

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C. Any request for a Minor E xception that is of significa nt enough nature such that it constitutes a project pursuant to CEQA (Public Resources Code Section §21065) and does not qualify for a Categorical or Statutory Exemption shall be required to apply as a variance and shall not be eligible for a Minor Exception pursuant to this Chapter.

15.66.020. Zoning Administrator.

A. The Office of Zoning Administrator is cr eated in this chapter pursuant to Section 65900 of the California Government Code. The Community & Economic Development Director or their designee is authorized to act as the Zoning Administrator.

B. The Zoning Administrator shall proce ss and act on a request for a Minor Exception as defined in Section 15.66.010, and other minor requests as identified elsewhere in this title (e.g., certain wireless facility applications under Chapter 15.53).

15.66.030. Application and fees.

A. An application of a Mi nor Exception shall be file d only by, or by written authorization from, the legal owner of real property(ies) of the parcel(s) subject to the Minor Exception request.

B. An application of a Minor Exception sha ll be made upon a form to be provided by the Community & Economic Developm ent Department, together with any applicable environmental information forms and plans explaining the requested deviation.

C. A fee, as prescr ibed by resolution of the City Council, shall accompany an application of a Minor Exception.

15.66.040. Public notification.

A. Notice of the applicati on, together with the date of the impending decision by the Zoning Administrator, shall be mailed to a ll property owners adjacent to the subject property for which the Minor Exception is requested at least ten (10) days prior to the determination by the Zoning Administrator.

B. The public hearing notice s hall be provided in accordance with Section 15.76.040.

15.66.050. Zoning Administrator action and required findings.

A. At least ten (10) days following the ma iling of the notice provided for in Section

15.66.040, the Zoning Administrator sha ll act upon the requested Minor Exception.

The Zoning Administrator may approve, c onditionally approve, deny or refer the application to the Planning Commission pursuant to Chapter 15.70.

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B. In order to grant the Minor Exception, the Zoning Admini strator shall first make the following findings in addition to any findings specifically referenced in this Title for the requested Minor Exception:

1. The Minor Exception is consistent with the purpose and intent of the Zoning Code.

2. The same or similar resu lt cannot be achieved by usi ng provisions in the Zoning Code that do not require a Minor Exception.

3. The Minor Exception will not produce a result that is out of character or detrimental to the neighborhood.

4. The project demonstrates compliance with applicable Design Criteria contained in

15.47.060.

C. For Wireless Permits (See Chapter 15.53) , instead of making the findings stated above in subsection B, the Zoning Admini strator shall instead make the following findings:

1. The proposed location for the facility is reasonable when considering both (i) the federal mandate to not regulate personal wireless service facilities in a manner that would "prohibit or have the effect of pr ohibiting the provision of personal wireless services"; and (ii) the city's legitimate related policy objective s relating to the location of wireless facilities;

2. The proposed facility is substantiall y compatible with existing or planned developments and uses in the same general area and would not be substantially detrimental to existing or planned developments or uses within the general area.

3. The proposed facility will not be materially detrimental to the health, safety and general welfare of the pub lic (excluding any environment al effects of radio frequency emissions to the extent that such facilities comply with applicable Federal Communication Commission regulations concerning such emissions).

4. Antennas and any poles or other structures erect ed to support antennas are visually compatible with their surroundings.

D. The Zoning Administrator's determinat ion on a requested Minor Exception shall become final and effective ten days followi ng the date of final decision unless an application for appeal of such decision is filed with the Community & Economic Development Department, pursuant to Se ction 15.66.070 of this chapter. The applicant and any other intere sted party requesting such notice shall be notified of said appeal.

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E. The Community & Economic Development Department shall keep a permanent record of all decisions of the Zoning Administrato r, and the ultimate disposition of those applications that are appealed. The record shall be available for public review.

15.66.060. Time limits.

A. Any minor exception grant ed by the Zoning Administrator shall become null and void if not exercised within 12 months from the date of approval except for those Wireless Permits which have a different period, in wh ich case that different build-out period shall control.

B. Prior to the date of expiration of t he approved minor exception, and upon written request pursuant to Section 15.76.120 of Chapt er 15.76, the time at which such application expires may be extended by the Zoning Administrator for a period or periods not exceeding 12 months for a total of two years.

15.66.070. Appeals.

A. The following procedures appl y to appeals of zoning administrator decisions, except those which relating to Wireless Permits (See Chapter 15.53 for wireless permits).

1. Within ten working days of the Zoning Administrator's final decision, the applicant or any aggrieved party may file an appeal of that decision by filing with the Community & Economic Development Depar tment a letter of appeal stating the reasons therefore and an appeal fee as set forth by resolution of the City Council.

If the tenth working day fa lls on a weekend or holiday, an appeal may be filed on the next working day.

2. If appealed, the Planning Commission shall hear such appeal, and the decision of the Planning Commission shall be subject to appeal to the City Council, all as provided for in Chapters 15.68 and 15.76 of this title.

B. Appeals of Zoning Administra tor decisions on wireless facilities shall be subject to the procedures set forth in subsection 5 of subsection A of Section 15.53.090 (“Appeals of Zoning Administrator Decisions”).

SECTION 5. Public Works Department Approved Design. The City Council hereby ratifies the design of the “Streetlight Pole with Small Wireless Facility”, Std. No. 552 and all related standard plans (Nos 550 & 551). The City Council reaffi rms the authority of the Public Works Department to update the standard designs from time to time.

SECTION 6. Environmental Determination. The project has been reviewed for compliance with the California Environmental Quality Act (CEQA), the CEQA guidelines, and the City’s environmental procedures, and has been found to be exempt pursuant to EE

CEQA Guidelines Section 1506 1(b)(3) (General Rule), in that the City Council hereby finds that it can be seen with certainty that t here is no possibility that this ordinance will have a significant adverse effect on the environment. The design guidelines provide general design criteria to impr ove the visual quality and compat ibility of small wireless facilities proposed within public right-of-way.

SECTION 7. Inconsistencies. Any provision of the Fu llerton Municipal Code or appendices thereto inconsistent with the provisions of this ordinance, to the extent of such inconsistencies and or further, is hereby repealed or modified to the extent necessary to affect the provisions of this ordinance.

SECTION 8. Severability. If any provision or clause of this ordinance or the application thereof to any person or circumstances is held to be unconstitutional or otherwise invalid by any court of competent jurisdiction, such in validity shall not affect other provisions or clauses or applications of this ordinance wh ich can be implemented without the invalid provision, clause or application; and to this end, the provisions of this ordinance are declared to be severable.

SECTION 9. Publication. This Ordinance shall take effect and be in full force thirty (30) days from and after the passage thereof, and pr ior to the expiration of fifteen (15) days from its passage shall be published once in, a newspaper of general circulation, printed and published in the City of Fullerton or, in the alternative, the City Clerk may cause to be published a summary of this Ordinance and a certified copy of the text of this Ordinance shall be posted in the office of the City Clerk five (5) days prior to the date of adoption of this Ordinance, and within fift een (15) days after adoption, t he City Clerk shall cause to be published the aforementioned summary and shall post in the Office of the City Clerk a certified copy of this Ordinance together with the names and member of the City Council voting for and against the same.

PASSED AND ADOPTED this _____ day of 2022.

________________________________
Fred Jung
Mayor of the City Fullerton

ATTEST:

______________________________
Lucinda Williams, City Clerk
APPROVED AS TO FORM:

________________________
Richard D. Jones
City Attorney

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STATE OF CALIFORNIA) ss

COUNTY OF ORANGE )

I, Lucinda Williams City Clerk and ex-officio Cle rk of the City Counc il of the City of Fullerton, hereby certify that the above foregoing Ordinance No. ___-___ as introduced and considered section by sectio n at a regular meeting of said City Council held on the ____ day of _______, 2021, and thereafter passed and adopted as a whole at the regular meeting of said City Council held on the ____ day of _________, 2021, by the following roll call vote:

AYES:

NOES:

ABSENT:

IN WITNESS WHEREOF, I have hereby set my hand and affixed the Seal of the City of Fullerton this ___ day of ___________, 2022.

______________________________
Lucinda Williams, City Clerk

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EXHIBIT A

STANDARD PLANS

STD. PLAN NO. 550 - GENERAL NOTES FOR SMALL WIRELESS FACILITY

INSTALLATIONS

STD. PLAN NO. 551 – SMALL WIRELESS FACILITY INFRASTRUCTURE DETAILS

STD. PLAN NO. 552 – STREET LIGHT POLE WITH SMALL WIRELESS FACILITY

REVISIONS STANDARD DETAILSHEET 1 OF 2550DATE DATEPUBLIC WORKS DIRECTORCITY ENGINEERDEPARTMENT OF PUBLIC WORKSNO.DATENO.DATEGENERAL NOTES FORSMALL WIRELESS FACILITY INSTALLATIONS

REVISIONS STANDARD DETAILSHEET 1 OF 2551DATE DATEPUBLIC WORKS DIRECTORCITY ENGINEERDEPARTMENT OF PUBLIC WORKSNO.DATENO.DATESMALL WIRELESS FACILITYINFRASTRUCTURE DETAIL