b. Discretionary Action. In addition to the foregoing, if a permittee fails to take corrective action with respect to a wireless telecommunications facility within twenty (20) business days after receiving a notice of deficiency the Department of Public Works may deny any pending application filed by permittee for a Wireless Right-of-Way Facility Permit.
O. Abandonment.
1. Permittee Must Maintain Facilities; Compliance with Phasing Plan. Any wireless telecommunications facility installed in the public rights-of-way pursuant to a Wireless Right-of-Way Facility Permit issued under this Chapter 15.34 must be properly maintained and used to provide wireless telecommunications services. Failure to comply with a phasing plan shall constitute an abandonment, and shall be subject to the remedy for noncompliance set forth in Subsection 15.34.030.O.3, below.
2. Notice of Abandonment. A permittee shall notify the Department of Public Works, or the Department of Public Works may determine and notify a permittee, that a wireless telecommunications facility installed in the public right-of-way has been abandoned either because it has not been properly maintained or because it is no longer being used to provide wireless telecommunications services. In such event, a permittee shall promptly remove the abandoned wireless telecommunications facility as required by the Department of Public Works and at permittee's expense.
3. Termination of Permits for Abandoned Wireless Telecommunications Facilities; Remedy for Non - Compliance. Wireless Right-of-Way Facility Permits shall automatically expire upon the abandonment of a wireless telecommunications facility. If a permittee fails to remove an abandoned wireless telecommunications facility within a reasonable period of time aft er receiving a notice of abandonment, the Department of Public Works shall take all reasonable, necessary, and appropriate action to remedy the permittee's failure to comply with the notice (including removing the wireless telecommunications facility) and may charge to the permittee the reasonable costs the City has actually incurred including, but not limited to, administrative costs.
P. Term of Permit. A Wireless Right-of-Way Facility Permit shall have a term of ten (10) years. The term shall commence upon the date of issuance of the permit.
Q. Renewal and New Applications.
1. When Permitted.
a. Renewal Permitted. At the end of the term set forth in Subsection 15.34.030.P above, the Department of Public Works may renew a Wireless Right-of-Way Facility Permit for an additional ten (10) year term, provided that the Department of Public Works did not issue a Modification Permit for the permitted wireless telecommunications facility during the term of the permit. b. Renewal Not Permitted.
(i) A wireless telecommunications facility that has been issued a Modification Permit may not be renewed beyond the expiration of the Modification Permit term. Instead, the permittee may file a new application for a Wireless Right-of-Way Facility Permit for the permitted and modified wireless telecommunications facility at the same location. (ii) A Wireless Right-of-Way Facility Permit that has been renewed once under Subsection
15.34.030.Q.1.a., above may not be renewed for a second time. Instead, the permittee may file a new application for a Wireless Right-of-Way Facility Permit for the permitted wireless telecommunications facility at the same location.
2. Renewal Application Required. A permittee seeking to renew a Wireless Right -of-Way Facility Permit that may be renewed under Subsection 15.34.030.Q.1., above must file a renewal application with the Department of Public Works no later than six (6) months prior to the expiration date of the existing permit. The renewal application shall include a written report from a certified engineer confirming that
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the permitted wireless telecommunications facility complies with the Public Health Compliance Standard, and such other material/information as may be directed by the Director of Public Works, so long as such additional material is consistent with the application requirements set forth in Subsection
15.34.030.D, above.
3. Approval of Renewal Application.
a. Satisfaction of Public Health Compliance Standard Required. The Department of Public Works shall review every application under the Public Health Compliance Standard. The Department of Public Works shall approve a timely-filed renewal application unless the Department of Public Works determines that the permitted wireless telecommunications facility does not comply wit h the Public Health Compliance Standard and/or that any other applicable standard for new wireless telecommunications facilities is not satisfied. b. Applicability of Other Provisions of this Chapter. The other provisions of this Chapter 15.34 related to approval of an application for a Wireless Right-of-Way Facility Permit shall not apply to the Department of Public Works' review of a renewal application.
4. New Application.
a. Required When Renewal Not Permitted. If, in accordance with Subsection 15.34.030.Q.1. above, a wireless telecommunications facility cannot be renewed, the permittee must submit a new application for a Wireless Right-of-Way Facility Permit in order to continue to maintain the permitted wireless telecommunications facility in the public rights-of-way. b. Removal Not Required. Notwithstanding any other applicable law, if the permittee submits an application for a Wireless Right-of-Way Facility Permit no later than six (6) months prior to the expiration date of a previously issued Wireless Right-of-Way Facility Permit, the Department of Public Works shall not require the applicant to remove the permitted wireless telecommunications facility unless and until there is a final determination denying the application.
R. Replacement or Removal of Equipment.
1. Replacement. During the term of a Wireless Right-of-Way Facility Permit, a permittee may replace equipment that is part of a permitted wireless telecommunications facility without obtaining a Modification Permit.
2. Removal. During the term of a Wireless Right-of-Way Facility Permit, a permittee may remove equipment that is part of a permitted wireless telecommunications facility without obtaining a Modification Permit.
3. Department Procedures.
a. Permittee's Notification. A permittee shall notify the Department of Public Works in writing that it intends to replace or remove equipment at a permitted wireless telecommunications facility as permitted by this Subsection 15.34.030.R. In the notice, the permittee shall at a minimum:
(i) Identify the use and size of each piece of equipment that the permittee is seeking to remove from the utility pole or street light pole;
(ii) Identify the use and size of the equipment that the permittee is seeking to install on the utility pole or street light pole to replace existing equipment; and (iii) If any new equipment will replace existing equipment, provide drawings and photo simulations of the existing and new equipment the permittee is seeking to install on the utility pole or street light pole.
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b. Department of Public Works Notification. Within five (5) business days of receipt of the permittee's request to replace or remove equipment as described above, the Department of Public Works shall notify the permittee in writing whether the Department of Public Works has determined that the request complies with the requirements of this Subsection 15.34.030.R. c. Permittee Replacement or Removal. Upon receipt of a Department of Public Works notice that the request complies with this Subsection 15.34.030.R, the permittee may replace or remove the equipment identified in the request.
d. Compliance with Other Requirements. Nothing in this Subsection 15.34.030.R shall be construed to relieve the permittee of its duty to comply with any City regulations or permitting requirements when removing equipment from or replacing equipment on a utility pole or street light pole.
S. Modification Permit.
1. Modification Permit Required. A permittee seeking to add equipment to a permitted wireless telecommunications facility that does not comply with the requirements of Subsection 15.34.030.R above, because the replacement equipment is not identical in si ze or smaller than the previously permitted equipment, must obtain a Modification Permit.
2. Department Procedures.
a. Application. In an application for a Modification Permit, the applicant shall at a minimum:
(i) State whether the permitted wireless telecommunications facility is a base station; (ii) Identify the use and size of any piece of equipment that the applicant is seeking to remove from the utility pole or street light pole;
(iii) Identify the use and size of any equipment that the applicant is seeking to add to the utility pole or street light pole;
(iv) State whether any piece of equipment the applicant is seeking to add to the utility pole or street light pole is transmission equipment and, if so, explain why it meets the definition of transmission equipment;
(v) Provide drawings and photo-simulations of the existing and new equipment the permittee is seeking to install on the utility pole or street light pole; and (vi) State whether the proposed modification will result in a substantial change to the physical dimensions of the utility pole or street light pole.
b. Time for Department Determination. The Department of Public Works shall by order or regulation establish the appropriate timeframe for the Department of Public Works to review an application for a Modification Permit that is consistent with the requirements of Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, codified at 47 U.S.C. § 1455(a), as may be amended from time to time, and with any FCC decision addressing that section or any FCC regulation implementing that section.
3. Approval of Modification Permits at Base Stations.
a. No Substantial Change to the Physical Dimension. The Department of Public Works sha ll approve an eligible facilities request for a Modification Permit if the installation of the modified transmission equipment would not substantially change the physical dimensions of the utility pole or street light pole where the permitted base station equipment has been installed. b. Substantial Change to the Physical Dimensions. The Department of Public Works may approve an eligible facilities request for a Modification Permit if the installation of the modified transmission
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equipment would substantially change the physical dimensions of the utility pole or street light pole where the permitted base station equipment has been installed, provided the application complies with the requirements of Subsection 15.34.030.S.5, below. c. Equipment Other than Transmission Equipment. The Department of Public Works may approve an application for a Modification Permit at a wireless telecommunications facility that is a base station if the application seeks to modify equipment other than transmission equipment, provided the application complies with the requirements of Subsection 15.34.030.S.5.b, below.
4. Approval of Modification Permits at Other Types of Facilities. The Department of Public Works may approve an application for a Modification Permit at a wireless telecommunications facility that is not a base station, provided the application complies with the requirements of Subsection 15.34.030.S.5.b, below.
5. Applicability of Other Provisions of this Chapter.
a. No Substantial Change to the Physical Dimension. The other provisions of this Chapter 15.34 related to approval of an application for a Wireless Right-of-Way Facility Permit shall not apply to the Department of Public Works' review of an application for a Modification Permit that complies with the requirements of Subsection 15.34.030.S.3.a, above. b. Other Types of Modifications. Before approving an application for a Modification Permit under Subsections 15.34.030.S.3.b, S.3.c, and S.4 above, the Department of Public Works shall: (A) determine whether the proposed wireless telecommunications facility complies with the Public Health Compliance Standard; and (B) determine compliance with any applicable compatibility standards. The Department of Public Works may not approve the Modification Permit if any C ity department determines the application does not comply with the appropriate standard(s). In addition, the Department may determine that compliance with other provisions of this Chapter
15.34 shall be required.
6. Generally Applicable Laws. Nothing in this Subsection 15.34.030.S shall prohibit the Department of Public Works from denying an application for a Modification Permit (even where the application consists of an eligible facilities request) where the Department of Public Works determines that the proposed modified wireless telecommunications facility would violate any generally applicable building, structural, electrical, or safety code provision, or any applicable law codifying objective standards reasonably related to health and safety.
T. Fees and Costs.
1. Application Fees. The City shall impose fees for review of an application for a Wireless Right -of-Way Facility Permit. The purpose of these fees is to enable the City to recover its costs related to reviewing an application for a Wireless Right-of-Way Facility Permit. The fee amounts shall be established and/or adjusted pursuant to an adopted fee resolution of the City Council, or as otherwise established and/or adjusted pursuant to applicable law.
2. Hearing Fees. If one or more appeal hearings is required, each appellant shall pay the Department of Public Works a non-refundable hearing fee for each appeal.
3. Renewal Fees. A permittee seeking to renew a Wireless Right-of-Way Facility Permit shall pay the Department of Public Works a non-refundable permit renewal fee.
4. Modification Permit Fees. Each applicant for a Modification Permit shall pay the Department of Public Works a non-refundable permit modification fee, and shall further pay any other permit review fees as required by Subsection 15.34.030.T.1, above.
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5. Inspection Fees. The Department of Public Works shall impose fees for the inspection of a permitted wireless telecommunications facility. The purpose of these fees is to enable the City to recover their costs related to inspecting a permitted wireless telecommunications facility.
6. Discretion to Require Additional Fees. In instances where the review of an application for a Wireless Right-of-Way Facility Permit is or will be unusually costly to the Department of Public Works or to other City departments, the Director of Public Works, in his or her discretion, may, after consulting with other applicable City departments, agencies, boards, or commissions, require an applicant for a Wireless Right-of-Way Facility Permit to pay a sum in excess of the amounts charged pursuant to this Subsection 15.34.030.T. This additional sum shall be sufficient to reco ver actual costs incurred by the Department of Public Works and/or other City departments, agencies, boards, or commissions, in connection with an application for a Wireless Right-of-Way Facility Permit and shall be charged on a time and materials basis. Whenever additional fees are charged, the Director of Public Works, upon request, shall provide in writing the basis for the additional fees and an estimate of the additional fees.
7. Deposit of Fees. All fees paid to the Department of Public Works for Wir eless Right-of-Way Facility Permit shall be deposited in the General Fund. All other fees shall go directly to the appropriate City department.
8. Reimbursement of City Costs. The Department of Public Works may determine that it requires the services of an expert in order to evaluate an application for a Wireless Right-of-Way Facility Permit. In such case, the Department of Public Works shall not approve the application unless the applicant agrees to reimburse the applicable City department for the reasona ble costs incurred by that department for the services of a technical expert.
U. Base Station Determination.
1. Request for Determination.
a. New Facilities. An applicant for a Wireless Right-of-Way Facility Permit may seek a determination from the Department of Public Works that a proposed wireless telecommunications facility is a base station.
b. Permitted Facilities. A permittee may seek a determination from the Department of Public Works that a permitted wireless telecommunications facility is a bas e station.
2. Single Determination Permitted. Once the Department of Public Works has determined that an applicant's new wireless telecommunications facility or a permittee's permitted wireless telecommunications facility is a base station, the Department of Public Works may apply that determination to the applicant's or permittee's other wireless telecommunications facilities that use the identical equipment.
3. Department Order. In lieu of a case-by-case determination, the Department may determine by order or regulation those types of wireless telecommunications facilities that meet the definition of the term base station.
( ORD-18-0012 § 2, 2018)
15.34.040 Other provisions.
A. Temporary Wireless Telecommunication Facilities. Installation, maintenance, or operation of any temporary wireless telecommunications site is prohibited except as allowed under a special events permit necessary during a special event authorized by Chapter 5.60, or during a government-declared emergency.
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B. Illegal facilities. Illegal wireless telecommunications facilities or co -location facilities have no vested rights and shall either be brought into legal conforming status in accordance with this Chapter and Title 21 of the Long Beach Municipal Code, or shall be removed.
C. Transfer or Change of Ownership/Operator. Upon assignment or transfer of an already approved wireless telecommunications facility or any rights under that permit, the owner and/or current operator of the facility shall within thirty (30) business days of such assignment or transfer provide written notification to the Director of Public Works of the date of the transfer and the identity of the transferee. The Director may require submission of any supporting materials or documentation nec essary to determine that the proposed use is in compliance with the existing permit and all of its conditions including, but not limited to, statements, photographs, plans, drawings, models, and analysis by a state -licensed radio frequency engineer demonstrating compliance with all applicable regulations and standards of the FCC and the California Public Utilities Commission. If the Director determines that the proposed operation is not consistent with the existing permit, the Director shall notify the applicant who may revise the application or apply for modification of the permit pursuant to the requirements of this Chapter. ( ORD-18-0012 § 2, 2018)
15.34.050 Severability clause.
If any provision or clause of this Chapter or the application thereof to any person or circumstance is held to be unconstitutional or to be otherwise invalid by any court of competent jurisdicti on, such invalidity shall not affect other article provisions or clauses or applications, and to this end the provisions and clauses of this Chapter are declared to be severable.
( ORD-18-0012 § 2, 2018)