Item 7 - Amendments to Ch 17.08 & 17.56 of PMC Regarding Multifamily Development Requirements & Batch Broadband Permit Applications

January 16, 2024, Item #7
DATE:

TO:

FROM:

CONTACT:

SUBJECT:

Summary:

AGENDA RE PQ RT City of Poway
January 16, 2024
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
[email protected]
Alan Fenstermacher, City Attorney
[email protected]

CITY COUNCIL
Amendments to Chapters 17.08 and 17.56 of the Poway Municipal Code Regarding (1) Multifamily Development Requirements, (2) Batch Broadband (Wireless Communication Facility) Permit Applications
The City Attorney's Office, in conjunction with City staff, has been reviewing the Poway Municipal Code ("PMC") for needed updates, and has periodically brought proposed amendments to the City Council.

The proposed Ordinance (Attachment A) would amend the PMC to eliminate the swimming pool requirement for all multifamily developments in the City. The proposed ordinance would also ensure the City has the maximum possible control under state and federal law over wireless communication facilities installed in the City's right-of-way.

Recommended Action:

It is recommended the City Council introduce the attached Ordinance (Attachment A) for first reading.

If adopted, the Ordinance would amend the PMC to (1) eliminate the requirement for all multifamily developments in the City to include a swimming pool and (2) restrict batched broadband permit applications to the statutory minimum.

Discussion:

The first proposed amendment to the PMC impacts Chapter 17.08 (Residential Zones) and removes the existing requirement that all condominiums and apartment complexes in the City include a swimming pool, unless otherwise negotiated through development agreements. Due to both state water conservation restrictions, as well as rising insurance costs associated with maintaining pools at multifamily developments, City staff recommends it be up to individual property owners to determine whether or not a complex has a swimming pool for residents. If approved, this portion of the ordinance would be applicable to both existing complexes as well as future projects. Existing developments wanting to remove pools would need to go through the appropriate permit process, certain changes to pool areas would be subject to City Council approval. 1 of 19
January 16, 2024, Item #7
The second proposed amendment to the PMC relates to wireless communication facilities (WCFs), which are communication facilities (i.e. antenna and associated equipment) often placed on street lights and other support structures in the public right-of-way by private telecommunication companies. Pursuant to federal law, the City has limited ability to regulate qualified WCFs, but does to the maximum extent permitted pursuant to Chapter 17.56 of the PMC.

Effective January 1, 2024, Assembly Bill (AB) 965 was enacted by the State of California for the purpose of increasing access to internet broadband infrastructure. Among other things, AB 965 allows for "batch broadband permit processing" which it defines as "the simultaneous processing of multiple broadband permit applications for substantially similar broadband project sites under a single permit." (Gov. Code § 65964.3(a)(1 )). The new bill also defines "broadband project," similarly to how the PMC currently defines a WCF.

Relevant here, AB 965 mandates that cities with populations of less than 50,000 allow for up to 25 broadband permit applications at one time. A larger city (population over 50,000) must process as many as 50 applications at one time. Based on Poway's 2020 census population number, the purpose of the proposed PMC amendment is to permit a maximum of 25 batched applications at one time, as without a local ordinance doing so, the City would be required to process a potentially unlimited number of batched permits at the same time. (See, Gov. Code. 65964.3(i)(2)).

Environmental Review:

The proposed Ordinance is not a "project" subject to California Environmental Quality Act (CEQA).

Fiscal Impact:

None.

Public Notification:

None.

Attachments:

A. Proposed Ordinance
Reviewed/Approved By:

Assistant City Manager
2 of 19
Reviewed By:
()L. ~
Alan Fenstermacher
City Attorney
chrisHazetirle
City Manager
January 16, 2024, Item #7
ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
POWAY, CALIFORNIA, AMENDING CHAPTERS 17.08 AND

17.56 OF THE POWAY MUNICIPAL CODE TO (1) ELIMINATE
THE MULTIFAMILY SWIMMING POOL REQUIREMENT, AND (2)

LIMIT WIRELESS COMMUNICATION FACILITY BATCH

APPLICATIONS TO THE STATUTORY MINIMUM
WHEREAS, City staff and the City Attorney's Office have been progressively analyzing the Poway Municipal Code ("PMC") and recommending updates where appropriate; WHEREAS, the City Council of the City of Poway wishes to protect and preserve the quality of the residential and commercial areas of the City, as well as the quality of life throughout the City, through effective land use and planning;
WHEREAS, the City Council of the City of Poway has determined it is unnecessary to require all multifamily apartment and condominium complexes in the City to include a swimming pool;
WHEREAS, the City Council of the City of Poway desires to allow broadband access throughout the City;
WHEREAS, the City Council of the City of Poway is particularly concerned with the potential of batch applications for wireless communication facilities ("WCFs") to be submitted in a number higher than what can be processed by staff under statutory time constraints; WHEREAS, AB 965 "Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023" creates Government Code section 65964.3 subdivision (i)(2)(A) which requires a city with a population of fewer than 50,000 to batch at a minimum 25 project site applications; and
WHEREAS, the City desires to adhere to this statutory minimum, rather than allowing more than 25 project site applications at a time.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS:

SECTION 1: The above recitations are true and correct.

SECTION 2: Section 17.08.220(G) of the PMC is hereby amended as follows, with additions in underline, and deletions in strikethrough:

G. The following recreation facilities shall be provided at a minimum unless waived by the City Council:

1. Landscaped park-like quiet area;

2. Children's play area; and

3. Family picnic area.:.; aoo
3 of 19 ATTACHMENT A
January 16, 2024, Item #7
Ordinance No.

Page 2 ends

4. SvJimming pool with cabana or patio cover.

SECTION 3: The Chapter 17.56 is hereby amended to Title 17 of the Poway Municipal Code to read as set forth on Exhibit 1 (clean) and Exhibit 2 (redline) hereto.

SECTION 4: The City Council finds that this Ordinance is exempt from the California Environmental Quality Act ("CEQA") pursuant to State CEQA Guidelines Section 15060(c)(2) and 15061 (b)(3) in that the proposed changes are not anticipated to result in a direct or reasonably foreseeable indirect physical change in the environment nor will they have the potential of creating a significant effect on the environment.

SECTION 5: If any provisions of this Ordinance or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable.

SECTION 6: This Ordinance shall be codified.

EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30) days after its adoption.

CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this Ordinance and cause it or a summary of it, to be published with the names of the City Council members voting for and against the same in the Poway News Chieftain, a newspaper of general circulation in the City of Poway within fifteen (15) days after its adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk in accordance with Government Code § 36933.

INTRODUCED AND FIRST READ at a Regular Meeting of the City Council of the City of Poway, California, held the 16th day of January, 2024, and thereafter.

II
II
II
II
II
II
II
II
II
II
II
II
II
4 of 19
January 16, 2024, Item #7
Ordinance No.

Page 3 ends

PASSED AND ADOPTED at a Regular Meeting of said City Council held the 6th day of February, 2024, by the following vote, to wit:

AYES:

NOES:

ABSTAINED:

ABSENT:

DISQUALIFIED:

Steve Vaus, Mayor
ATTEST:

Carrie Gallagher, CMC, City Clerk
5 of 19
January 16, 2024, Item #7
EXHIBIT 1
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION

FACILITIES
Sections:

17.56.010

17.56.020

17.56.030

17.56.040

17.56.050

17.56.060

17.56.070

17.56.080

17.56.090

17.56.100

17.56.110

17.56.120

17.56.130
Chapter 17.56

WIRELESS COMMUNICATION FACILITIES
Purpose.

Definitions.

Permits required.

Approval authority.

Appeal from Director decision.

Application requirements.

Findings.

Objective standards and operating conditions.

Objective siting requirements.

Large wireless communication facilities.

Preemption and severability.

Reservation ofrights to review permit.

Batch broadband permit processing

17.56.010 Purpose.

Page I of 7
This chapter establishes a wireless communication facility permit, and sets forth definitions, permitting requirements and application processes for wireless communication facilities within the public right-of-way in the City, including reasonable, uniform and objective aesthetic standards. (Ord. 829 § 2, 2019)

17.56.020 Definitions.

A. "Applicant" means the entity applying for the wireless communication facility permit, and any of its future lessees or assigns. Should the applicant later sell a wireless communication facility constructed pursuant to a permit issued under this chapter, the term "applicant" shall apply to that subsequent owner.

B. "Batch broadband permit processing" means the simultaneous processing of multiple broadband permit applications for substantially similar broadband sites under a single permit submitted at once.

C. "Broadband permit application" means an application or other documents submitted for review by a local agency to permit the construction of a broadband project.

E. "Director of Development Services" means the City's Director of Development Services, or his/her appointed designee.

F. "Existing support structure" means a structure, such as a street light, that is existing prior to the City's receipt of an application for a wireless communication facility permit, that will not have to be replaced or substantially modified to support the installation of a wireless communication facility. Notwithstanding the foregoing, in-kind replacement structures are considered existing support structures for the purposes of this chapter. Existing overhead utility poles or lines are not permitted existing support structures.

G. "In-kind replacement structure" means a new structure that replaces existing vertical infrastructure in the right-of-way that is constructed to support the other parts of the wireless communication facility, and is identical to the existing vertical infrastructure it replaces with respect to size, height, diameter, style, and exterior materials.

H. "Master communication site license agreement" means an agreement between the applicant and the City, approved by the City Council in accordance with Chapter 17.53 PMC, and all supporting and related documentation, including but not limited to insurance certificates and lease terms. Full cost recovery for staff time and direct costs 6 of 19
January 16, 2024, Item #7
Poway
Municipal
Code
Chapter
17 .56

WIRELESS

COMMUNICATION

FACILITIES
Page
2 of
7 associated
with
the
agreement
shall
be
part
of
a developer
deposit,
as
set
forth
in
the
City's
master
fee
schedule
, as
updated
and
amended
from
time
to
time.

I.
"New
support
structure"
means
a structure
that
is
constructed
solely
to
support
the
other
parts
of
the
wireless
communication
facility.

J.
"Presumptively
reasonable
time"
for
the
purposes
of
this
section
shall
mean
the
timeframe,
if
any
specified
by
applicable
law,
and
in
the
absence
of
such
law,
whatever
time
the
Planning
Division
deems
reasonable
to
process
the
broadband
permit
applications
.

K.
"Replacement
support
structure
" means
a new
structure
that replaces
existing
vertical
infrastructure
in
the
right-of-way
that
is
constructed
solely
to
support
the
other
parts
of
the
wireless
communication
facility,
except
for
in-kind
replacement
structures
.

L.
"Single wireless
communication
facility
application"
means
an
application
for
a single
wireless
communication
facility
at
a single
location
.

M
. "Street
light"
means
a light
illuminating
a road
, mounted
on
a tall
pole
and
within
the
public
right-of-way.

The
term
"street
light"
excludes
overhead
utility
poles
and
lines
.

N. "Simultaneous
" for
the
purposes
of
this
section
means
broadband
permit
applications
which
are
submitted
at
the
same
time
.

0. "Substantially
similar
broadband
project
sites"
means
broadband
project
sites
that
are
nearly
identical
in
terms
of
equipment
and
general
design,
but
not
location.

P. "Support
structure"
means
either
an
existing
support
structure
, new
support
structure
, or
replacement
support
structure,
which
are
all
considered
part
of
a wireless
communication
facility.

Q.
"Wireless communication
facility"
means
a facility
for
the
provision
of
wireless
communications
or
other
similar
utility
services,
and
all
antennas
and
equipment
associated
with
the
overall
facility
that
are
necessary
for
the
function
of
the
facility
, including
the
support
structure
. (Ord
. 829
§ 2,
2019)

17.56.030
Permits
required.

Prior
to
the
construction
or
installation
of
any
wireless
communication
facility
in
the
public
right-of-way,
the
applicant
shall
obtain
a wireless
communication
facility
permit
pursuant
to
the
procedures,
requirements
and
restrictions
of
this
chapter
, in
addition
to
a review
for
structural
calculations
and
public
right-of-way
permit
application
pursuant
to
the
requirements
set
forth
in
PMC

12.04.030.

An
improvement
plan
and
inspection
is
required
for
a new
support
structure
or
a replacement
support
structure.

Approval
of
a master
communication
site
license
agreement
is
required
prior
to
approval
of
any
batch
wireless
communication
facility
application.

B. Pursuant
to
PMC
17 .52.050(A)
, any
wireless
communication
facility
that
includes
a surface
-mounted
cabinet
with
any
dimension
greater
than
36 inches,
or
where
more
than
one
cabinet
of
any
size
is
located
closer
than
I 00
feet
to
another
cabinet
of
any
size
, shall
also
obtain
a minor
development
review
permit
from
the
Director
of
Development
Services
, unless
the
cabinet(s) are
placed
underground
.

C. Nothing
in
this
chapter
affects
the
City's
authority
to
require
a conditional
use
permit
pursuant
to
Chapter

17.48 PMC
for
a proposed
wireless
communication
facility
outside
of
the
public
right-of-way
. (Ord.
829
§ 2,
2019)

17.56.040
Approval
authority.

The
Director
of
Development
Services
shall
be
the
approval
body
for
all
wireless
communication
facility
permits
.
(Ord
. 829
§ 2,
2019)

17.56.050
Appeal
from
Director
decision.

Only
an
applicant
may
appeal
a decision
of
the
Director
of
Development
Services
regarding
a wireless
communication
facility
permit
request.

In
such
case,
the
appeal
shall
go
before
the
hearing
officer
for
review
and
action
in
accordance
with
the
appeal
procedures
set
forth
in
Chapter

2.20 PMC
.
7 of
19 January 16, 2024, Item #7
Poway
Municipal
Code
Page
3 of
7 Chapter
17 .56

WIRELESS

COMMUNICATION

FACILITIES
B.

A
decision
of
the
hearing
officer
under
Chapter

2.20 PMC
is
final.
(Ord
. 829
§ 2,
2019)

17.56.060
Application
requirements.

Before
receiving
a wireless
communication
facility
permit,
the
applicant
must
submit
an
application
in
accordance
with
the
requirements
of
this
chapter.

The
applicant
shall
comply
with
the
City's
"Guidelines
for
the
Placement
of
Utility
Facilities
in
the
Public
Rights-of-Way,"
as
may
be
amended
from
time
to
time
by
City
Council
resolution.

Before
submitting
an
application,
all
applicants
are
advised
and
strongly
urged
to
participate
in
a wholly
voluntary
pre-application meeting
with
appropriate
staff,
scheduled
in
advance.

All
applications
for
wireless
communication
facility
permits
shall
include
the
following
information:

1. A
completed
Planning
Division
general
application.

This
form
may
be
updated
by
the
Director
of
Development
Services
from
time
to
time,
in
his/her
reasonable
discretion.

At
a minimum,
the
following
application
materials
shall
be
required:
a.

A
draft
master
communication
site
license
agreement,
if
applicable.
b.

Detailed
plans,
including
a site
plan
and
elevation
plans,
showing
and
describing
the
layout
and
design
of
the
proposed
project,
including
a depiction
of
the
boundaries
of
the
site
on
which
the
project
will
be
developed
.
c.

Documentation
that
the
facility
will
comply
with
all
Federal
and
State
regulations
and
guidelines,
including,
where
applicable,
FCC
regulations
and
guidelines.
d.

Site
justification
letter(s)
justifying
the
need
or
requirement
for
the
proposed
location
and
design
of
the
wireless
communication
facility,
and
whether
or
not
co-location
of
additional
facilities
owned
by
different
carriers
is
feasible,
in
compliance
with
PMC

17.56.090.

The
letter
shall
include
other
sites
that
were
analyzed
but
not
selected,
with
an
explanation
as
to
why
the
analyzed
sites
did
not
meet
the
objectives
(including
engineering,
coverage
and
location
justification),
and
why
the
co-location
of
the
proposed
wireless
communication
facility
with
others
in
the
area
cannot
be
accomplished.
e.

A
utility
plan
showing
equipment
layout
and
utility
connections.
f.

A
report
specifying
the
facility's
compliance
with
the
FCC's
maximum
possible
exposure
(MPE)
levels
in
inhabited
areas
within
500
feet
of
the
facility
prepared
by
a qualified electrical
engineer
licensed
by
the
State
of
California.

Proof
of
compliance
shall
be
a certification
provided
by the
engineer
who
prepared
the
original
based
upon
measurements
after
the
facility
is
in
operation,
but
prior
to
City
final
engineering
inspection. g. Mechanical
engineering
specifications
of
the
facilities
specifying
maximum
noise
exposure
levels
of
the
facility
to
be
in
compliance
with
the
City's
noise
ordinance,
set
forth
in
Chapter

8.08 PMC
.
h.

Where
the
wireless
communication
facility
also
requires
a minor
development
review
permit
pursuant
to
PMC
17 .52.050,
the
application
shall
include
documents required
for
minor
development
reviews
and
applicable
fees
and
deposits.

2. Payment
of
all
deposits
or
fees
as
required
for
processing
of
the
associated
permits
as
outlined
in
the
City's
master
fee
schedule,
as
may
be
amended
from
time
to
time.

The
applicant
shall
agree
in
writing
to
indemnify,
defend
and
hold
harmless
the
City,
its
designees,
employees,
and
assigns,
from
any and
all
liability
resulting
from
the
City's
approval
of
the
wireless
communication
facility,
the
operation
of
the
wireless
communication
facility,
and/or
the
City's
enforcement
of
this
chapter
as
it
relates
to
any
wireless
communication
facility
owned
and/or
operated
by
the
applicant.
8 of
19 January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION

FACILITIES

Page 4 of 7 ends

F. The applicant shall submit a security in accordance with Chapter 16.20 PMC in an amount to be determined by the City Engineer to cover the removal of the facility in the event the site becomes abandoned or is otherwise vacated by the applicant.

G. When submitting a batch broadband permit application, the applicant shall submit materials as specified in subsections (D)(l)(b) through (h) of this section for each facility that is not substantially similar as defined in Section 17 .56.020 subsection (0). A separate fee is required for each facility, as applicable. If some of the facilities require a minor development review permit and others do not, the City will process the facilities requiring minor development review each as a separate application.

H. In addition to all applicable requirements stated above, all batch broadband permit applications shall be required to adhere to all the requirements set forth in Section 17 .56.130.

17.56.070 Findings.

A. Prior to issuance of a wireless communication facility permit pursuant to this chapter, the following findings shall be made to the satisfaction of the Director of Development Services:

I. A complete application has been submitted to the satisfaction of the Development Services Director as required by this chapter.

2. The proposed wireless communication facility and applicant satisfies the requirements set forth in this chapter, specifically including PMC 17.56.080 and 17.56.090.

3. The proposed wireless communication facility satisfies the requirements set forth in the City's wireless communication policy, to the extent applicable, as may be amended by the City Council from time to time.

4. The proposed wireless communication facility is not detrimental to the public health, safety, or general welfare.

5. The proposed wireless communication facility is designed to match existing street infrastructure within the surrounding area, and conceals or minimizes visual impacts of the facilities.

6. Opportunities for co-location were maximized as a part of the project.

7. The proposed wireless communication facility is proposed to function in compliance with all applicable Federal, State and local regulations, including (where applicable) regulations of the Federal Communications Commission.

8. The applicant has paid all necessary City fees and deposits associated with the application, and the proposed wireless communication facility.

B. Where the Director of Development Services issues a wireless communication facility permit, the approval shall be conditioned on a requirement that the applicant comply with all of the standards, conditions and other requirements articulated in this chapter on an ongoing basis.

C. If the Director of Development Services, or on appeal, the hearing officer, cannot make the required findings, the approval authority shall deny the permit with a written explanation as to why any such finding could not be made. (Ord. 829 § 2, 2019)

17.56.080 Objective standards and operating conditions.

A. The support structure, including all added antennas, shall not be more than 50 feet in height or 10 percent taller than other adjacent vertical infrastructure. The wireless communication facility must not extend the height of an existing support structure by more than five feet.

FACILITIES

Page 5 of 7 ends

light. Each portion of the wireless communication facility shall be designed at a diameter proportionately similar to, and no more than three times diameter of, the existing support structure. Associated equipment shall not be ground mounted, but instead, placed underground, unless the Director of Development Services determines that no other feasible alternative exists based on clear and convincing evidence provided by the applicant.

C. Antennas and equipment shall be painted to match the color of the surface of the support structure to which they are attached unless determined otherwise by the Director of Development Services.

D. No portion ofa wireless communication facility is permitted to obstruct the view of any traffic sign, way-finding sign, traffic signal, or similar facility, nor be located within the sight triangle as shown in PMC 17.22.100.

E. The fire hydrant port that runs perpendicular to the street center line must remain unobstructed.

F. The wireless communication facility must not be designed in such a way that it requires antenna structure registration under Part 17 of Title 47 of the Code of Federal Regulations.

G. Each facility shall include emergency contact information visible from the sidewalk with the wireless carrier, the frequency band, a single point of contact in the applicant's engineering and maintenance departments (name, phone number, fax number, and email address), and a 24-hour phone number to which interference problems may be reported.

H. The antennas shall be activated and energized upon preliminary approval of the wireless communication facility by the Director of Development Services to allow for proof of compliance certification provided by the engineer who prepared the original MPE report based upon measurements after the facility is in operation, but prior to the City's final engineering inspection.

I. All wireless communication facilities and related equipment and improvements shall be maintained in good repair.

Any damage from any cause shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight.

J. The owner or operator of a wireless communication facility shall routinely and regularly inspect the site to ensure compliance with the standards set forth in the permit.

K. Any substantial modification, removal or relocation of a wireless communication facility shall require submittal, review, and approval of a wireless communication facility permit pursuant to this chapter to the satisfaction of the Director of Development Services.

L. The owner or operator of a wireless communication facility shall remove, at its sole responsibility and expense, all portions a wireless communication facility and restore the existing support structure to its original condition, subject to approval of the Director of Development Services, within 60 days of ceasing operation of the permitted wireless communication facility.

M. The owner or operator of a wireless communication facility shall be required to modify, remove, or relocate its facility, or portion thereof, without cost or expense to the City, within 60 days of the City's notice, if and when made necessary, in the City's discretion, by:

1. Any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or aboveground facilities including but not limited to sewers, storm drains, conduits, gas, water, electric, or other utility systems or pipes owned by the City or any other public agency;

2. Any abandonment of any street, sidewalk, or other public facility;

3. Any change of grade, alignment or width of any street, sidewalk, or other public facility; or

4. A determination by the Director of Development Services that the wireless communication facility has become a risk to public health, safety, welfare, or the public's use of the public right-of-way. 10 of 19
January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION

FACILITIES

Page 6 of 7 ends

N. In the case of an emergency or other similar exigent circumstances where the facility poses a threat of bodily harm, death, or harm to real property, or otherwise creates a safety hazard, the City may modify, remove, or relocate a wireless communication facility without prior notice to the applicant provided the applicant is notified within 30 days thereafter. The City shall make a reasonable attempt to contact the applicant prior to such emergency removal. (Ord. 829 § 2, 2019)

17.56.090 Objective siting requirements.

A. In furtherance of the City's goals to underground existing utilities throughout the City, wireless communication facilities shall not be located on existing overhead utility poles or lines, as set forth in PMC 17.56.020(D).

B. The applicant must make all commercially reasonable efforts to co-locate wireless communication facilities on existing support structures that already support other wireless communication facilities. If such co-location is not feasible, the applicant must provide the documentation required by PMC 17.56.060(D). In the event co-location is not feasible, the applicant must design the wireless communication facility in such a way that co-location ofat least one additional wireless communication facility is feasible on the same support structure in the future.

C. The preferred support structure for all wireless communication facilities is existing street lights, or other qualified existing support structures. The applicant must make all commercially reasonable efforts to utilize a street light or other qualified existing support structure. If a new or replacement support structure is required, the applicant must provide the documentation required by PMC 17.56.060(D) demonstrating the same to the satisfaction of the Director of Development Services. Further, the applicant must explore and document the infeasibility of a replacement support structure before a wireless communication facility requiring a new support structure will be approved.

D. Required Setbacks for New Support Structures, Replacement Support Structures and Equipment and Accessory Structures Associated with a Wireless Communication Facility.

1. All portions of a wireless communication facility must be set back a minimum of 48 inches from any traffic signal facilities.

2. The setback for all portions of a wireless communication facility from any tree shall be a minimum of 48 inches, unless a qualified arborist can demonstrate to the satisfaction of the Director of Development Services that a lesser setback would not harm the tree.

3. A minimum of four feet of pedestrian clearance from any portion of a wireless communication facility, free of all obstacles for an unobstructed walkway, must be maintained at all times.

4. All portions of a wireless communication facility must be set back a minimum of seven feet from any fire hydrant, driveway, curb ramp or blue zone parking space.

5. Replacement support structures shall be located a maximum of five feet from the structure they replace.

However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, this distance can be expanded to no more than 10 feet.

6. All new support structures and replacement support structures shall provide the same setbacks as adjacent structures ofa similar style. However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, the setback can be modified, provided the facility otherwise complies with setback regulations set forth in this subsection D and all pertinent laws and regulations, including, but not limited to, the Americans with Disabilities Act.

7. Any new support structure must be located a minimum of 50 feet away from any residential structure, and shall not be located along the street frontage adjacent to any school, daycare center, recreational area or park.

New support structures may not be located within 75 feet of any pre-existing vertical infrastructure exceeding 10 feet in height or any preexisting wireless communication facility, as measured along a horizontal line between the closest points of the subject piece of infrastructure and closest portion of the proposed wireless communication facility. (Ord. 829 § 2, 2019)
11 of 19
January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION

FACILITIES

17.56.100 Large wireless communication facilities.

Page 7 of 7 ends

The Director of Development Services may, in his or her discretion, impose additional requirements and restrictions on wireless communication facilities where the antenna exceeds three cubic feet in volume, where all other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, exceeds 28 cubic feet in volume, or otherwise do not meet the definition of "small wireless facility" set forth in applicable Federal regulations. (Ord. 829 § 2, 2019)

17.56.110 Preemption and severability.

Notwithstanding any other provision of this chapter to the contrary, an applicant may request an exemption to excuse it from having to comply with any portion of this chapter on the grounds that the requirement or action taken by the City would violate State or Federal law. The City shall grant the exemption or excuse an applicant from compliance with all or a portion of this chapter, if it finds based on substantial evidence in the record that the challenged requirement or action is, in fact, preempted by State or Federal law. Such an exemption shall not affect the enforceability of the remainder of this chapter. If any provision of this chapter is found by a court of competent jurisdiction to be unlawful, void or for any reason unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this chapter, which shall be enforced to the fullest extent possible. (Ord. 829 § 2, 2019)

17.56.120 Reservation of rights to review permit.

The City reserves the right to reconsider the permit at the end of a 10-year time period from the date of the original permit approval. Reconsideration items to be reviewed may include, but are not limited to, conformance with all objective standards, availability of new technologies, conformance with the objective concealment standards imposed on the facility, operation of applicable radio frequency standards and regulations (as they may be amended from time to time), and compliance with Federal, State and local regulations, including the City's noise ordinance. (Ord. 829 § 2, 2019)

17.56.130 Batch Broadband Permit Processing
A. City Staff shall not accept for processing any batch broadband permit that contain over 25 separate wireless facilities.

B. City Staff will reject any permit in a batch application that is not substantially similar to the others in such application.

C. For each permit over one (1), the applicant shall file a separate amendment to the permit defining the location of the broadband project and what differences in design or construction exist between the additional broadband project and the original broadband project.

D. Applicant shall be notified of approval within a presumptively reasonable time or in a time mutually agreed upon by the City and the applicant, whichever is later.
12 of 19
January 16, 2024, Item #7
EXHIBIT 2
Poway Municipal Code
Chapter I 7.56 WIRELESS COMMUNICATION

FACILITIES
Sections:

17.56.010

17.56.020

17.56.030

17.56.040

17.56.050

17.56.060

17.56.070

17.56.080

17.56.090

17.56.100

17.56.110

17.56.120

17.56.130
Chapter 17.56

WIRELESS COMMUNICATION FACILITIES
Purpose.

Definitions.

Permits required.

Approval authority.

Appeal from Director decision.

Application requirements.

Findings.

Objective standards and operating conditions.

Objective siting requirements.

Large wireless communication facilities.

Preemption and severability.

Reservation ofrights to review permit.

Batch broadband permit processing

17.56.010 Purpose.

17.56.020 Definitions.

B. "Batch broadband permit processing" means the simultaneous processing of multiple broadband pe1mit applications for substantially similar broadband sites under a single permit submitted at once.

B. "Batch wireless communication facility application" means an application for multiple wireless communication facilities at multiple locations, or multiple applica~ions for separate facilities at multiple locations submitted at once.

C. "Broadband pe1mit application" means an application or other documents submitted for review by a local agency to permit the construction of a broadband project.

D. "Broadband project" means a proposed wireless communication facility, including the support structure and any supporting equipment necessary for operation of the proposed facility. A broadband project may be comprised of one or more components. including, but not limited to. a wireless facility, a fiber optic connection, and other supporting equipment, each of which may require separate permits or authorizations by the City . .E;G. "Director of Development Services" means the City's Director of Development Services, or his/her appointed designee.
_Ef). "Existing support structure" means a structure, such as a street light, that is existing prior to the City's receipt of an application for a wireless communication facility permit, that will not have to be replaced or substantially modified to support the installation of a wireless communication facility. Notwithstanding the foregoing, in-kind replacement structures are considered existing support structures for the purposes of this chapter. Existing overhead utility poles or lines are not permitted existing support structures.

Q_K "In-kind replacement structure" means a new structure that replaces existing vertical infrastructure in the right-of-way that is constructed to support the other parts of the wireless communication facility, and is identical to the existing vertical infrastructure it replaces with respect to size, height, diameter, style, and exterior materials. 13 of 19
January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION

FACILITIES

Page 2 of 7 ends

H:f. "Master communication site license agreement" means an agreement between the applicant and the City, approved by the City Council in accordance with Chapter 17.53 PMC, and all supporting and related documentation, including but not limited to insurance certificates and lease terms. Full cost recovery for staff time and direct costs associated with the agreement shall be part of a developer deposit, as set forth in the City's master fee schedule, as updated and amended from time to time.

IG-. "New support structure" means a structure that is constructed solely to support the other parts of the wireless communication facility.

J. "Presumptively reasonable time" for the purposes of this section shall mean the timeframe, if any specified by applicable law, and in the absence of such law, whatever time the Planning Division deems reasonable to process the broadband permit applications.

KH-"Replacement support structure" means a new structure that replaces existing vertical infrastructure in the right-of-way that is constructed solely to support the other parts of the wireless communication facility, except for in-kind replacement structures.
1I. "Single wireless communication facility application" means an application for a single wireless communication facility at a single location.

MJ. "Street light" means a light illuminating a road, mounted on a tall pole and within the public right-of-way. The term "street light" excludes overhead utility poles and lines.

N. "Simultaneous" for the purposes of this section means broadband pennit applications which are submitted at the same time.

0. "Substantially similar broadband project sites" means broadband project sites that are nearly identical in terms of equipment and general design, but not location.
£K. "Support structure" means either an existing support structure, new support structure, or replacement support structure, which are all considered part of a wireless communication facility.

Qb. "Wireless communication facility" means a facility for the provision of wireless communications or other similar utility services, and all antennas and equipment associated with the overall facility that are necessary for the function of the facility, including the support structure. (Ord. 829 § 2, 2019)

17.56.030 Permits required.

A. Prior to the construction or installation of any wireless communication facility in the public right-of-way, the applicant shall obtain a wireless communication facility permit pursuant to the procedures, requirements and restrictions of this chapter, in addition to a review for structural calculations and public right-of-way permit application pursuant to the requirements set forth in PMC 12.04.030. An improvement plan and inspection is required for a new support structure or a replacement support structure. Approval of a master communication site license agreement is required prior to approval of any batch wireless communication facility application.

B. Pursuant to PMC l 7.52.050(A), any wireless communication facility that includes a surface-mounted cabinet with any dimension greater than 36 inches, or where more than one cabinet of any size is located closer than 100 feet to another cabinet of any size, shall also obtain a minor development review permit from the Director of Development Services, unless the cabinet(s) are placed underground.

C. Nothing in this chapter affects the City's authority to require a conditional use permit pursuant to Chapter 17.48 PMC for a proposed wireless communication facility outside of the public right-of-way. (Ord. 829 § 2, 2019)

17.56.040 Approval authority.

The Director of Development Services shall be the approval body for all wireless communication facility permits. (Ord. 829 § 2, 2019)
14 of 19
January 16, 2024, Item #7
Poway Municipal Code Page 3 of 7
Chapter 17.56 WIRELESS COMMUNICATION

FACILITIES

17.56.050 Appeal from Director decision.

A. Only an applicant may appeal a decision of the Director of Development Services regarding a wireless communication facility permit request. In such case, the appeal shall go before the hearing officer for review and action in accordance with the appeal procedures set forth in Chapter 2.20 PMC.

B. A decision of the hearing officer under Chapter 2.20 PMC is final. (Ord. 829 § 2, 2019)

17.56.060 Application requirements.

A. Before receiving a wireless communication facility permit, the applicant must submit an application in accordance with the requirements of this chapter.

B. The applicant shall comply with the City's "Guidelines for the Placement of Utility Facilities in the Public Rights-of-Way," as may be amended from time to time by City Council resolution.

C. Before submitting an application, all applicants are advised and strongly urged to participate in a wholly voluntary pre-application meeting with appropriate staff, scheduled in advance.

D. All applications for wireless communication facility permits shall include the following information:

1. A completed Planning Division general application. This form may be updated by the Director of Development Services from time to time, in his/her reasonable discretion. At a minimum, the following application materials shall be required:
a. A draft master communication site license agreement, if applicable. b. Detailed plans, including a site plan and elevation plans, showing and describing the layout and design of the proposed project, including a depiction of the boundaries of the site on which the project will be developed.
c. Documentation that the facility will comply with all Federal and State regulations and guidelines, including, where applicable, FCC regulations and guidelines. d. Site justification letter(s) justifying the need or requirement for the proposed location and design of the wireless communication facility, and whether or not co-location of additional facilities owned by different carriers is feasible, in compliance with PMC 17.56.090. The letter shall include other sites that were analyzed but not selected, with an explanation as to why the analyzed sites did not meet the objectives (including engineering, coverage and location justification), and why the co-location of the proposed wireless communication facility with others in the area cannot be accomplished. e. A utility plan showing equipment layout and utility connections. f. A report specifying the facility's compliance with the FCC's maximum possible exposure (MPE) levels in inhabited areas within 500 feet of the facility prepared by a qualified electrical engineer licensed by the State of California. Proof of compliance shall be a certification provided by the engineer who prepared the original based upon measurements after the facility is in operation, but prior to City final engineering inspection.
g. Mechanical engineering specifications of the facilities specifying maximum noise exposure levels of the facility to be in compliance with the City's noise ordinance, set forth in Chapter 8.08 PMC. h. Where the wireless communication facility also requires a minor development review permit pursuant to PMC 17.52.050, the application shall include documents required for minor development reviews and applicable fees and deposits.

2. Payment of all deposits or fees as required for processing of the associated permits as outlined in the City's master fee schedule, as may be amended from time to time. 15 of 19
January 16, 2024, Item #7
Poway Municipal Code
Chapter 17.56 WIRELESS COMMUNICATION

FACILITIES

Page 4 of 7 ends

E. The applicant shall agree in writing to indemnify, defend and hold harmless the City, its designees, employees, and assigns, from any and all liability resulting from the City's approval of the wireless communication facility, the operation of the wireless communication facility, and/or the City's enforcement of this chapter as it relates to any wireless communication facility owned and/or operated by the applicant.

G. When submitting a batch wireless communication facility application broadband pe1mit application, the applicant shall submit separate materials as specified in subsections (D)(l)(b) through (h) of this section for each facility that is not substantially similar as defined in Section 17.56.020 subsection (0). a part of the application. _A separate fee is required for each facility, as applicable. If some of the facilities require a minor development review permit and others do not, the City will process the facilities requiring minor development review each as a separate application. (Ord. lP9 § ?, 2019)
H. In addition to all applicable requirements stated above, all batch broadband pe1mit applications shall be required to adhere to all the requirements set forth in Section 17.56. 130.

17.56.070 Findings.

A. Prior to issuance of a wireless communication facility permit pursuant to this chapter, the following findings shall be made to the satisfaction of the Director of Development Services:

1. A complete application has been submitted to the satisfaction of the Development Services Director as required by this chapter.

2. The proposed wireless communication facility and applicant satisfies the requirements set forth in this chapter, specifically including PMC 17.56.080 and 17.56.090.

4. The proposed wireless communication facility is not detrimental to the public health, safety, or general welfare.

5. The proposed wireless communication facility is designed to match existing street infrastructure within the surrounding area, and conceals or minimizes visual impacts of the facilities.

6. Opportunities for co-location were maximized as a part of the project.

8. The applicant has paid all necessary City fees and deposits associated with the application, and the proposed wireless communication facility.

FACILITIES

17.56.080 Objective standards and operating conditions.

Page 5 of 7 ends

B. The wireless communication facilities shall be architecturally integrated with support structures and screened from view to the largest extent feasible. The wireless communication facilities shall consist of the smallest, least visually intrusive antennas, components and other necessary equipment available. No portion ofa wireless communication facility placed on a street light shall be more than five feet above the light pole portion of the street light. Each portion of the wireless communication facility shall be designed at a diameter proportionately similar to, and no more than three times diameter of, the existing support structure. Associated equipment shall not be ground mounted, but instead, placed underground, unless the Director of Development Services determines that no other feasible alternative exists based on clear and convincing evidence provided by the applicant.

C. Antennas and equipment shall be painted to match the color of the surface of the support structure to which they are attached unless determined otherwise by the Director of Development Services.

D. No portion of a wireless communication facility is permitted to obstruct the view of any traffic sign, way-finding sign, traffic signal, or similar facility, nor be located within the sight triangle as shown in PMC 17.22.100.

E. The fire hydrant port that runs perpendicular to the street center line must remain unobstructed.

F. The wireless communication facility must not be designed in such a way that it requires antenna structure registration under Part 17 of Title 47 of the Code of Federal Regulations.

I. All wireless communication facilities and related equipment and improvements shall be maintained in good repair.

Any damage from any cause shall be repaired as soon as reasonably possible so as to minimize occurrences of dangerous conditions or visual blight.

J. The owner or operator of a wireless communication facility shall routinely and regularly inspect the site to ensure compliance with the standards set forth in the permit.

FACILITIES

2. Any abandonment of any street, sidewalk, or other public facility;

3. Any change of grade, alignment or width of any street, sidewalk, or other public facility; or

Page 6 of 7 ends

17.56.090 Objective siting requirements.

C. The preferred support structure for all wireless communication facilities is existing street lights, or other qualified existing support structures. The applicant must make all commercially reasonable efforts to utilize a street light or other qualified existing support structure. If a new or replacement support structure is required, the applicant must provide the documentation required by PMC 17 .56.060(D) demonstrating the same to the satisfaction of the Director of Development Services. Further, the applicant must explore and document the infeasibility of a replacement support structure before a wireless communication facility requiring a new support structure will be approved.

D. Required Setbacks for New Support Structures, Replacement Support Structures and Equipment and Accessory Structures Associated with a Wireless Communication Facility.

1. All portions of a wireless communication facility must be set back a minimum of 48 inches from any traffic signal facilities.

3. A minimum of four feet of pedestrian clearance from any portion of a wireless communication facility, free of all obstacles for an unobstructed walkway, must be maintained at all times.

4. All portions of a wireless communication facility must be set back a minimum of seven feet from any fire hydrant, driveway, curb ramp or blue zone parking space.

5. Replacement support structures shall be located a maximum of five feet from the structure they replace.

However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, this distance can be expanded to no more than 10 feet.

6. All new support structures and replacement support structures shall provide the same setbacks as adjacent structures of a similar style. However, if the applicant can demonstrate that this limit would cause the facility to physically interfere with existing underground utilities, the setback can be modified, provided the facility otherwise complies with setback regulations set forth in this subsection D and all pertinent laws and regulations, including, but not limited to, the Americans with Disabilities Act.

17.56 WIRELESS

COMMUNICATION

FACILITIES
Page
7 of
7 New
support
structures
may
not
be
located
within
75 feet
of
any
pre-existing
vertical
infrastructure
exceeding
IO
feet
in
height
or
any
preexisting
wireless
communication
facility,
as
measured
along
a horizontal
line
between
the
closest
points
of
the
subject
piece
of
infrastructure
and
closest
portion
of
the
proposed
wireless
communication
facility.
(Ord.
829
§ 2,
2019)

17.56.100
Large
wireless
communication
facilities.

The
Director
of
Development
Services
may
, in
his
or
her
discretion,
impose
additional
requirements
and
restrictions
on
wireless
communication
facilities
where
the
antenna
exceeds
three
cubic
feet
in
volume
, where
all
other
wireless
equipment
associated
with
the
structure
, including
the
wireless
equipment
associated
with
the
antenna
and
any
preexisting
associated
equipment
on
the
structure
, exceeds
28 cubic
feet
in
volume
, or
otherwise
do
not
meet
the
definition
of"small
wireless
facility
" set
forth
in
applicable
Federal
regulations
. (Ord
. 829
§ 2
, 2019)

17.56.110
Preemption
and
severability.

The
City
shall
grant
the
exemption
or
excuse
an
applicant
from
compliance with
all
or
a portion
of
this
chapter,
if
it finds
based
on
substantial
evidence
in
the
record
that
the
challenged
requirement
or
action
is,
in
fact,
preempted by
State
or
Federal
law.

Such
an
exemption
shall
not
affect
the
enforceability
of
the
remainder
of
this
chapter
. If
any
provision
of
this
chapter
is
found
by
a court
of
competent
jurisdiction
to
be
unlawful
, void
or
for
any
reason
unenforceable,
it shall
be
deemed
severable
from,
and
shall
in
no
way
affect
the
validity
or
enforceability
of,
the
remaining
provisions
of
this
chapter
, which
shall
be
enforced
to
the
fullest
extent
possible.
(Ord
. 829
§ 2,
2019)

17.56.120
Reservation
of
rights
to
review
permit
.

The
City
reserves
the
right
to
reconsider
the
permit
at
the
end
of
a 10-year
time
period
from
the
date
of
the
original
permit
approval.

Reconsideration
items
to
be
reviewed
may
include,
but
are
not
limited
to,
conformance
with
all
objective
standards
, availability
of
new
technologies
, conformance
with
the
objective
concealment
standards
imposed
on
the
facility
, operation
of
applicable
radio
frequency
standards
and
regulations
(as
they
may
be
amended
from
time
to
time)
, and
compliance
with
Federal,
State
and
local
regulations
, including the
City
's noise
ordinance.
(Ord
. 829
§ 2,
2019)

17.56.130
Batch
Broadband
Permit
Processing
A.

City
Staff
shall
not
accept
for
processing
any
batch
broadband
permit
that
contain
over
25 separate
wireless
co
mmuni
cat
ion facilities.

B. City
Staff
will
reject
any
permit
in
a batch
application
that
is
not
substantially
similar
to
the
others
in
such
application. C. For
each
permit
over
one
(1
),
the
applicant
shall
file
a separate
amendment
to
the
pennit
defining
the
location
of
the
broadband
project
and
what
differences
in
design
or
construction
exist
between
the
additional
broadband
project
and
the
original
broadband
project.

Applicant
shall
be
notified
of
approval
within
a presumptively
reasonable
time
or
in
a time
mutually
agreed
upon
by
the
City
and
the
applicant,
whichever
is
later.
19 of
19

Poway City CouncilJanuary 16, 2024

Poway City Council
January 16, 2024