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HomeMy WebLinkAboutPC 2021-10PLANNING COMMISSION RESOLUTION NO. 2021=10 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF DIAMOND BAR RECOMMENDING TO THE CITY COUNCIL APPROVAL OF PROPOSED AMENDMENTS TO TITLE 22 OF THE DIAMOND BAR MUNICIPAL CODE - PLANNING CASE NO. PL2021-44. A. RECITALS 1. In compliance with the Federal Communications Commission's ("FCC") Declaratory Ruling, Third Report, and Order ("Order") "In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment," which established new limitations on local standards for the siting of, and the processing of applications for, small wireless facilities by all local jurisdictions, the City of Diamond Bar proposes to amend Chapter 22 of the Diamond Bar Municipal Code. 2. The Order provides that all local jurisdictions must comply with various restrictions on their exercise of aesthetic, zoning, public works, and fee authority when considering applications for the installation of small wireless facilities. The Order is intended to facilitate the spread, growth, and accumulation of small wireless facilities over a short period of time to ensure deployment of 5G technology. 3. The proposed Development Code amendment would affect the areas of the City eligible for small wireless facilities, which are primarily installed within public rights -of -way. The amendments include, but are not limited to, revisions to processing procedures, design and development standards, and operational requirements. 4. Pursuant to Government Code Sections 65090, a notice of at least 1/8 page display was published in the San Gabriel Valley Tribune newspaper on July 2, 2021, and a copy of the public notice was posted at the City's designated community posting sites. 5. The City has determined that the proposed Development Code Amendment is not subject to the California Environmental Quality Act ("CEQA") pursuant to Public Resources Code § 21065 which defines "project" as "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment." The proposed Ordinance does not have the potential to result in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, as the Ordinance does not call for any change in the existing environmental conditions within the City. The proposed Ordinance merely updates existing City regulations to reflect the FCC's new laws governing the deployment of small wireless facilities, which are already permitted uses within the City. Accordingly, the Ordinance is not a "project" subject to CEQA. Even if the Ordinance could be construed to•be a project subject to CEQA, the proposed Ordinance is exempt because the proposed Ordinance merely updates existing City regulations to reflect the FCC's new laws governing the deployment of small wireless facilities and does not authorize new programs or activities. The proposed Ordinance calls for the continued operation of small wireless facilities involving no expansion of the existing uses. As a result, the proposed Ordinance is exempt from CEQA pursuant to the Class 1 exemption. Moreover, CEQA's Class 3 Exemption applies to. the construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure (CEQA Guidelines, § 15303). The proposed Ordinance allows for the deployment of new, small wireless facilities on pre- existing or new small structures within the City, therefore, the proposed Ordinance is exempt from CEQA pursuant to the Class 3 exemption. Therefore, no further environmental review is required. 6. On July 13, 2021, the Planning Commission held a duly noticed public hearing regarding the proposed Development Code Amendment reflected in the draft ordinance attached hereto as Exhibit "A" and incorporated by reference into this Resolution, and duly considered all public testimony, evidence, and staff analysis. 7. The proposed Development Code Amendment is consistent with multiple objectives and policies in the City of Diamond Bar General Plan. 8. All legal prerequisites to the adoption of this Resolution have occurred. B. RESOLUTION NOW, THEREFORE, it is found, determined and resolved by the Planning Commission oI the City of Diamond Bar as follows: 1. This Planning Commission hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct. 2. Based on the findings and conclusions set forth above, the Planning Commission hereby recommends that the City Council approve Development Code Amendment Planning Case No. PL2021-44 by adopting the amendments to Title 22 of the Diamond Bar Development Code described in the draft ordinance attached hereto as Exhibit "A" and incorporated herein by reference. The Planning Commission Secretary shall: (a) Certify to the adoption of this Resolution; and (b) Forthwith transmit a certified copy of this Resolution to the City Council of the City of Diamond Bar. 2 PC Resolution No. 2021-10 APPROVED AND ADOPTED THIS 13TH DAY OF JULY, 2021 BY THE PLANNING COMMISSION OF THE CITY OF DIAMOND BAR. f 3 r, i { �.. Bv: �'.� r�.. __ William Rawlings, Chairperson I, Greg Gubman, Planning Commission Secretary, do hereby certify that the foregoing Resolution was duly introduced, passed, and adopted, at a regular meeting of the Planning Commission held on the 13th day of July, 2021, by the following vote: AYES: Commissioners: NOES: Commissioners: ABSENT: Commissioners: ABSTAIN: Commissioners: Barlas, Mok, Wolfe, Chair/Rawlings None VC/Garg None �� ATTEST: '`� t (-✓`iir✓x'--'"" Greg Gubman, Secretary 3 PC Resolution No. 2021-10 Exhibit "A" ORDINANCE NO. XX (2021) AN ORDINANCE OF THE CITY OF DIAMOND BAR, CALIFORNIA, AMENDING TITLE 22 (DEVELOPMENT CODE) OF THE DIAMOND BAR MUNICIPAL CODE TO ADD NEW SECTION 22.42.135 (SMALL. WIRELESS FACILITIES), AND TO AMEND SECTION 22,42.130 (RADIO AND TELEVISION ANTENNAS AND WIRELESS TELECOMMUNICATIONS ANTENNA FACILITIES), SECTION 22.44.020 (AUTHORITY FOR LAND USE AND ZONING DECISIONS), SECTION 22,74.030 (APPEALS OF DECISIONS), AND SECTION 22,74.040 (FILING AND PROCESSING OF APPEALS), TO ENACT REGULATIONS GOVERNING THE DEPLOYMENT, AUGMENTATION, AND RELOCATION OF SMALL WIRELESS FACILITIES IN THE CITY IN ACCORDANCE WITH STATE AND FEDERAL LAW. WHEREAS, on September 26, 2018, the Federal Communications Commission ("FCC") adopted its Declaratory Ruling, Third Report, and Order ("Order") "In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment,"which established new limitations on local standards for the siting of, and the processing of applications for, small wireless facilities by all local jurisdictions; and, WHEREAS, the Order provides that all local jurisdictions must comply with various restrictions on their exercise of aesthetic, zoning, public works, and fee authority when considering applications for the installation of small wireless facilities; and, WHEREAS, the Order is intended to facilitate the spread, growth, and accumulation of small wireless facilities over a short period of time to ensure deployment of 5G technology. The Order reduces the "shot clock" period allowable for cities to review, comment upon, consider, and make a final determination on small wireless facility applications for as many as 90 days for new facilities and as many as 60 days for collocated and modified facilities; and, WHEREAS, small wireless facilities are primarily installed within public rights -of - way and as such create significant concerns regarding traffic and pedestrian safety, aesthetics, protection and preservation of public property, and the health, safety, and welfare of the general public; and, WHEREAS, installation of small wireless facilities within the public right-of-way can pose a threat to the public health, safety and welfare, including: disturbance to the right- of-way through the installation and maintenance of wireless facilities; traffic and pedestrian safety hazards due to the unsafe location of wireless facilities; land use conflicts and incompatibilities, including excessive height of poles and towers; creation of visual and aesthetic blights and potential safety concerns arising from excessive size, heights, noise or lack of camouflaging of wireless facilities, including the associated pedestals, meters, equipment and power generators; and the creation of unnecessary visual and aesthetic blight by failing to utilize alternative technologies or capitalizing on I S94367.1 Ordinance No. XX (2021) co -location opportunities, which may negatively impact the unique quality and character of the City; and, WHEREAS, the City currently regulates all wireless telecommunications antenna facilities within specified land use zones of the City as provided in Section 22.42.130 (Radio and Television Antennas and Wireless Telecommunications Antenna Facilities) of the Diamond Bar Municipal Code, which does not specifically #address the deployment of small wireless facilities; and, WHEREAS, the Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service; and, WHEREAS, the California Public Utilities Commission ("GPUC") is primarily responsible for the implementation of local telephone competition and the CPUC issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations; and, WHEREAS, Section 234(a) of the California Public Utilities Code defines a "telephone corporation" as "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state;" and, WHEREAS, Section 616 of the California Public Utilities Code provides that a telephone corporation "may condemn any property necessary for the construction and maintenance of its telephone line;" and, WHEREAS, many wireless service providers are eligible to utilize the public right- of-way pursuant to a Certificate of Public Convenience and Necessity, as issued by the California Public Utilities Commission; and, WHEREAS, Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets: The primary and highest purpose of public streets, rights -of -way, roads, and highways is the safe and efficient accommodation of the traveling public, including without limitation motor vehicles, automobiles, trucks, buses and other modes of public transportation, bicycles, pedestrians, and emergency and first responder vehicles. Street signs, street lights, and drainage systems also provide services and enhancements that protect and serve the traveling public. The City Council finds that all other uses of the public right-of-way are ancillary and secondary to the primary purpose and use of the public right-of-way and will only be allowed to the extent such secondary uses do not impede the traveling public or Ordinance No. XX (2021) compromise the safety of the members of the public and the residents and businesses of the City; and, WHEREAS, Section 7901 of the California Public Utilities Code authorizes telephone/telegraph corporations to construct telephone/telegraph lines 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 points as not to incommode the public use of the road or highway or interrupt the navigation of the waters; and, WHEREAS, Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roadways, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner; and, WHEREAS, Section 50030 of the California Government Code states that permit fees imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all Irequired authorizations from the CPUC and the FCC to provide telecommunications services cannot exceed the reasonable costs of providing service for which the fee is charged and cannot be levied for general revenue; and, WHEREAS, state and federal law have changed substantially and the City is in need of clear regulations for small wireless facility installations given the number of anticipated applications and legal timelines upon which the City must act; and, WHEREAS, the public right-of-way in the City is a uniquely valuable public resource, closely linked with the City's scenic nature and rural character. The reasonably regulated and orderly deployment of small wireless facilities in the public right-of-way is desirable, and unregulated or disorderly deployment represents an ever-increasing threat to the health, welfare, and safety of the community; and, WHEREAS, the regulation of installations, including small wireless facilities, in the public right-of-way is necessary to protect and preserve fhe aesthetics in the community, as well as the values of properties within the City, and to ensure that such installations are installed using the least intrusive means possible; and, WHEREAS, the City Council recognizes its responsibilities under the Federal Telecommunications Act of 1996 and state law, and believes that it is acting consistent with the current state of the law in ensuring that irreversible development activity does not occur that would harm the public health, safety, or welfare; and, WHEREAS, the City does not intend that this Ordinance prohibit or have the effect of prohibiting the,provision of telecommunications service; rather, this Ordinance includes appropriate regulations to ensure that the deployment, augmentation, and relocation of small wireless facilities in the City are conducted in such a manner as to lawfully balance 3 Ordinance No. XX (2021) the legal rights of applicants under the Federal Telecommunications Act, the rules/regulations promulgated thereunder, and the California Public Utilities Code, while at the same time, protecting the health, safety, and welfare of the general public and land use concerns described herein. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DIAMOND BAR HEREBY ORDAIN AS FOLLOWS: SECTION I. Subsection (b) of Section 22I130 (Radio and Television Antennas and Wireless Telecommunications Antenna Facilities) of Chapter 22.42 (Standards for Specific Land Uses) of Title 22 (Development Code) of the Diamond Bar Municipal Code is hereby amended to read as follows (deletions shown in strikethrough; additions shown in boldlunderline): "(b) Applicability. The standards of this section apply to all earth station antennas, amateur radio station antennas, and wireless telecommunications antenna facilities, except for small wireless facilities governed by and subject to the provisions of Section 22.42.135, which shall be exempt from and not governed by the provisions of this section. SECTION II. Section 22.42.135 (Small Wireless Facilities) of Chapter 22.42 (Standards for Specific Land Uses) of Title 22 (Development Code) is hereby added to the Diamond Bar Municipal Code, which shall read as follows: Section 22.4Z.135. —Small wireless facilities. (a) Purpose. The purpose of this section is to: (1) Provide a uniform and comprehensive set of regulations and standards for the permitting, development, siting, deployment, design, operation, and maintenance of small wireless facilities in the City. (2) Establish clear local guidelines, standards, and time frames for the exercise of local authority with respect to the regulation of small wireless facilities in the City. (3) Impose clear and reasonable requirements so that applications for small wireless facilities will be processed in a consistent and timely manner. This section imposes requirements that are necessary to protect public health, safety, welfare, aesthetics, and provide for the orderly, managed, and efficient deployment of small wireless facilities in accordance with state and federal laws, rules, and regulations. (4) Provide for the orderly, managed, and efficient deployment of small wireless facilities in accordance with state and federal laws, rules, and regulations, 0 Ordinance No. XX (2021) and permit and manage reasonable access to public rights -of -way of the City for telecommunications purposes on a competitively neutral basis. (5) Enable the City to discharge its public trust responsibilities consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development through the encouragement of advanced and competitive telecommunications services on the widest possible equivalent basis to the businesses, institutions, and residents of the City while continuing to fairly and responsibly protect the public health, safety, and welfare. (6) Promote and protect public health, safety, welfare, and the aesthetic quality of the City consistent with the goals, objectives, and policies of the General Plan. (7) Conserve the limited physical capacity of public rights -of -way held in public trust by the City. (8) Assure that the City's current and ongoing costs of granting and regulating private access to and use of public rights -of -way are fully paid by the persons seeking such access and causing such costs while securing fair and reasonable compensation for the City and the residents of the City for permitting private use of public rights -of -way, within the limits established by the FCC. (b) Interpretation. This section is not intended nor shall it be interpreted to: (1) Prohibit or effectively prohibit any small wireless service provider's ability to deploy small wireless facilities. (2) Prohibit or effectively prohibit any entity's ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules or regulations for rights -of -way management. (3) Unreasonably discriminate among, providers of functionally equivalent services. (4) Deny any request for authorization to place, construct, or modify small wireless facilities on the basis of environmental effects of radio -frequency emissions to the extent that the small wireless facilities comply with the FCC's regulations concerning such emissions. (5) Prohibit any co -location or modification that the City may not deny under federal or state law. Ordinance No. XX (2021) (c) Definitions. For the purpose of this section, the following words and terms shall have the meaning set forth herein unless the context clearly indicates or requires a different meaning. Accessory Equipment means any equipment, other than antenna equipment, associated with the installation of a small wireless facility. Antenna means the same as defined by the FCC in 47 C.F.R. § 1.6002(b)I as may be amended or superseded, which defines that term as an apparatus designed for the purpose of emitting radiofrequency radiation, to be operated or operating from a fixed location, for the provision of personal wireless service and any commingled information services. Antenna Equipment means the same as defined by the FCC in 47 C.F.R. § 1.6002(c), as may be amended or superseded, which defines the term as equipment, switches, wiring, cabling, power sources, shelters or cabinets associated with an antenna, located at the same fixed location as the antenna, and, when collocated on a structure, is mounted or installed at the same time as such antenna. Antenna Facility means the same as defined by the FCC in 47 C.F.R. § 1.6002(d), as may be amended or superseded, which defines the term as an antenna and associated antenna equipment. Applicant means a person or entity that submits an application for a Small Wireless Facility Permit under the provisions of this section and the agents, employees, and contractors of such person or entity. Co -location means the same as defined by the FCC in 47 C.F.R. § 1.6002(g), as may be amended or superseded, which defines that term as mounting or installing an antenna facility on a pre-existing structure, and/or modifying a structure for the purpose of mounting or installing an antenna facility on that structure. Decorative Pole means any pole that includes decorative or ornamental features, design elements and/or finials intended to enhance the appearance of the pole or the public rights -of -way in which the pole is located. Deployment means the same as defined by the FCC in 47 C.F.R. § 1.6002(h), as may be amended or superseded, which defines the term as placement, construction, or modification of a personal wireless service facility. Director means the Community Development Director for the City of Diamond Bar, or his or her designee. FCC means the Federal Communications Commission or its duly appointed successor agency. C Ordinance No. XX (2021) Modification means any change to a small wireless facility that involves any of the following: co -location, expansion, alteration, enlargement, intensification, or augmentation, including, but not limited to, a change in size, shape, color, visual design, or exterior material. Modification does not include repair, replacement, or maintenance if those actions do not involve a change to the small wireless facility involving any of the following: co -location, expansion, enlargement, intensification, or augmentation. New Pole means any pole erected or installed after the effective date of this section. The term "New Pole" does not include a "Replacement Pole" as defined in this section. Pole means a single shaft of wood, steel, concrete, or other material capable of supporting the equipment mounted thereon in a safe and adequate manner and as required by provisions of this Code. Public Right -of --Way or Right -of --Way means any public street, public way, public alley, or public place, laid out, reserved, or dedicated for street, sidewalk, storm drainage, bicycle path, or other public uses or purposes under the jurisdiction of the City. Public Works Director means the Public Works Director of the City, or his or her desig nee. Replacement Pole means and shall only include a pole or structure that replaces a pole in the exact same location in order to accommodate small wireless facilities. Small wireless facility or facility means the same as defined by the FCC in 47 C.F.R. § 1.6002(I), as may be amended or superseded, which defines the term as a facility that meets each of the following conditions: (1) The facility is: (i) mounted on structures 50 feet or less in height including their antennas; or (ii) mounted on structures no more than 10 percent taller than other adjacent structures; or (iii) does not extend existing structures on which it is located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (2) Each antenna associated with any deployment, excluding associated antenna equipment, is no more than three cubic feet in volume; (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; 7 Ordinance No. XX (2021) (4) The facility does not require antenna structure registration under 47 C.F.R. Part 17; (5) The facility is not located on Tribal lands, as defined under 36 C.F.R. 800.16(x); and (6) The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. 1.1307(b). Structure means the same as defined by the FCC in 47 C.F.R. § 1.6002(m), as may be amended or superseded, which defines the term as a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or comingled with other types of services). (d) Applicability. Notwithstanding any provision of the Diamond Bar Municipal Code to the contrary, this section shall govern all applications for Small Wireless Facility Permits in the City: (e) Required approvals. (1) A Small Wireless Facility Permit shall be required to locate or modify any small wireless facility on a pole, new pole, replacement pole, or structure located within the City, including without limitation on any public rights -of - way, public property, or private property. No small wireless facility shall be located or modified within the City without the issuance of an administrative Small Wireless Facility Permit, as required by this section. The Director, in consultation with the Public Works Director, shall have the authority to approve, approve with conditions, or deny any application for the deployment or modification of a small wireless facility. (2) Each Applicant for a Small Wireless Facility Permit pursuant to this section proposed for location in or on any public right-of-way within the City shall also submit an application for an Encroachment Permit pursuant to the provisions of Chapter 12.04 (Streets and Sidewalks) of this Code. The application for an Encroachment Permit shall be processed, reviewed, and approved concurrently with the application for a Small Wireless Facility Permit pursuant to the provisions of this section. (3) An administrative approval granted under this section shall not confer any exclusive right, privilege, license, or franchise to occupy or use the public right-of-way of the City for delivery of telecommunication services of any kind or for any other purposes. 0 Ordinance No. XX (2021) (4) All required approvals under this section shall be processed in conformance with the time periods established by applicable state and federal law, and FCC regulations and orders. (5) Upon a showing by the Applicant that any requirement in this section would prohibit or have the effect of prohibiting the provision of personal wireless service through the wireless service provider's deployment of small wireless facilities, the Director shall have the authority to modify or waive such requirement. (f) Application content. Each Applicant for a Small Wireless Facility Permit shall file a written, signed, and verified application on such form as the Director may prescribe, and shall provide the information, documents, and fees specified in this subsection: (1) Full name and contact information of the small wireless facility owner, small wireless facility operator, agent (if any), and property owner, and related letter(s) of authorization from the small wireless facility and/or property owner. (2) A full written description of the proposed small wireless facility, including its purpose, specifications, and placement of backup generator (if applicable). (3) A detailed site plan or photo simulation of the small wireless facility containing the exact proposed location of the small wireless facility, and any existing wireless facilities within a five hundred (500) foot radius of the proposed location. (4) Photographs of all proposed small wireless facility equipment and an accurate visual impact analysis with photo simulations, including reasonable line -of -sight locations from public streets, nearby vicinity, or other adjacent viewpoints as may be required by the Director, in consultation with the Public Works Director, and a map that shows the photo location of each view angle. (5) Building elevations and roof plan. (for building- and/or rooftop -mounted small wireless facilities) indicating exact location and dimensions of equipment proposed. For all other small wireless facilities not mounted to a building or rooftop, indicate surrounding grades, structures, and landscaping from all sides. (6) Proposed landscaping and/or nonvegetative screening plan for all aspects of the small wireless facility. (7) Written documentation demonstrating that the proposed location complies with all applicable aesthetic and development standards set forth in this section and that the proposed small wireless facility will be screened to the G: Ordinance No. XX (2021) greatest extent feasible in accordance with the design and development standards listed within this section. (8) If the application is for a small wireless facility that will be located within the public right-of-way, the Applicant shall state the basis for its claimed right to enter the right-of-way, and provide a :copy of its certificate of public convenience and necessity (CPCN), if a CPCN has been issued by the California Public Utilities Commission. (g) Evidence from the equipment manufacturer that the ambient noise emitted from all proposed equipment will not, both individually and cumulatively, exceed the applicable noise limits as found in Division 3 (Noise Control) of Chapter 8.12 (Environmental Protection) of this Code. (10) Evidence that demonstrates that the small wireless facility's antennas do not exceed three (3) cubic feet in volume per antenna, and all other equipment (antenna equipment and accessory equipment) does not collectively exceed twenty-eight (28) cubic feet in volume. (11) An application and processing fee in an amount consistent with FCC regulations as established by a resolution by the City Council for the estimated cost of the City, including staff time, and all other costs of whatever type or variety, incurred for the processing, review, commenting upon, evaluation, and consideration of the small wireless facility application. (12) A radio -frequency (RF) exposure compliance report prepared and certified by an electrical engineer licensed by the State of California that certifies that the proposed small wireless facility, as well as any collocated facilities, will comply with applicable federal RF exposure standards and exposure limits. (g) Design and development standards for small wireless facilities. (1) Small wireless facilities shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, inconvenience to the public's use of the public right-of-way, or create safety hazards to pedestrians and motorists. (2) Small wireless facilities shall not be located within any portion of the public right-of-way interfering with access to fire hydrants, fire stations, water valves, underground vaults, valve housing structures, utility lines or facilities, or any other vital public health and safety facility. (3) The Applicant shall use screening and camouflage design techniques in the design and placement of small wireless facilities to ensure such facilities are as visually inconspicuous as possible. 10 Ordinance No. XX (2021) (4) Small wireless facilities shall be sited at least five hundred (500) feet away from other small wireless facilities to avoid an over -concentration of such facilities, to preserve community aesthetics, and to avoid the creation of potential hazards or inconvenience to the travelling public. Collocated small wireless facilities on the same pole/structure are not required to meet this minimum spacing standard with respect to one another. (5) To preserve community aesthetics, all small wireless facilities, excluding antennas and aboveground vents, shall be pole -mounted or placed underground, flush to the finished grade, whenever there are no physical or site constraints to make undergrounding infeasible, except as may be determined by the Director, in consultation with the Public Works Director. Infeasibility shall not be demonstrated by the mere cost to place the equipment underground. (6) If an Applicant proposes to replace a pole to accommodate the small wireless facility, the replacement pole shall match the appearance of the original pole, including height, width and silhouette to the extent feasible, unless the Director, in consultation with the Public Works Director, finds that another design accomplishes the objectives of this subsection. (7) Small wireless facilities may incorporate reasonable and appropriate security measures, such as fences, walls, and anti -climbing devices, to prevent unauthorized access, theft, and vandalism. Security measures mustbe designed to enhance concealment to the maximum extent feasible. Security measures shall not include barbed wire, razor ribbon, electrified fences or any similar security measures. (8) Small wireless facilities shall not be installed on decorative poles, except as may be determined by the Director, in consultation with the Public Works Director. (h) Installation and operation requirements for small wireless facilities. (1) Small wireless facilities shall be operated in a manner so as to avoid any significant adverse impacts caused by noise. a. Backup generators shall only be operated during periods of power outagesI and shall not be tested on weekends or holidays, or between the hours of 10:00 p.m. and 7:00 a.m. b. At no time shall equipment noise from any small wireless facility exceed the applicable noise levels as established in Division 3 (Noise Control) of Chapter 8.12 (Environmental Protection) of this Code. 11 Ordinance No. XX (2021) (2) Small wireless facilities shall not bear any signs or advertising devices other than certification, warning, or other signage required by law or permitted by the City. (3) Small wireless facility equipment shall not be illuminated unless specifically required by the Federal Aviation Administration, the FCC, or other governmental agency. (4) Only pole -mounted small wireless facilities shall be permitted in the public right-of-way. All poles shall be designed to be the minimum functional height and width required to support the proposed small wireless facility installation and meet FCC requirements. (5) Pole -mounted equipment shall be designed to occupy the least amount of space in the public right-of-way that is technically feasible. (6) If a small wireless facility is sited on the exterior of a pole, equipment shall not be installed in such a manner that would preclude possible future co - location by the same or other operators. (7) Each antenna associated with any deployment shall be no more than three (3) cubic feet in volume. All other equipment associated with the small wireless facility, including associated antenna equipment and accessory equipment, shall be no more than twenty-eight (28) cubic feet in volume. (8) Small wireless facilities must be mounted on structures fifty (50) feet or less in height including their antenna, or mounted on structures no more than ten (10) percent taller than other adjacent structures, or which do not extend existing structures on which the small wireless facility is located to a height of more than fifty (50) feet or by more than ten (10) percent, whichever is greater. (g) Small wireless facilities shall be maintained in good working order and condition and shall be fully operable at all times. Each small wireless facility shall be clean and free of general dirt and grease; chipped, faded, peeling, and cracked paint; rust and corrosion; cracks, dents, and discoloration; missing, discolored, or damaged artificial foliage or other camouflage; graffiti, bills, stickers, advertisements, litter and debris; and damaged structural parts. (i) Conditions of approval for small wireless facilities. In addition to compliance with the requirements of Section 22.42.135, approval of small wireless facilities shall be subject to each of the following conditions of approval: (1) In the event the deployment of a small wireless facility, as approved pursuant to this section, requires a Building Permit under the provisions of 12 Ordinance No. XX (2021) this Code, all conditions and restrictions imposed on the Small Wireless Facility Permit and Encroachment Permit approved pursuant to the provisions of this section shall be incorporated in, and made a condition of such Building Permit. All conditions shall be binding as to the Applicant and all successors in interest to permittee. The permittee shall construct, install, and operate the small wireless facility in strict compliance with all approved permits. (2) The permittee shall submit and maintain current at all times basic contact and site information on a form as may be provided by the Director, in consultation with the Public Works Director. The permittee shall notify the Director of any changes to the information submitted within seven (7) days of any change, including change of the name or corporate legal status of the owner or operator. This information shall include, but is not limited to, the following: a. Identity, including the name, address and 24-hour local or toll -free contact phone number of the permittee, the owner, the operator, and the agent or person responsible for the maintenance of the small wireless facility. b. The corporate legal status of the owner of the small wireless facility, including official identification numbers and FCC certification. c. Name, address, and telephone number of the property owner if different than the permittee. (3) The permittee shall not place any small wireless facility in a manner that will deny access to, or otherwise interfere with, any public utility, easement, or right-of-way located on the site. The permittee shall allow the City and utility providers reasonable access to, and maintenance of, all utilities and existing public improvements within or adjacent to the site, including, but not limited to, pavement, trees, public utilities, lighting, and public signage. (4) At all times, all required notices and signs shall be posted on the site as required by the FCC and California Public Utilities Commission, and as approved by the City. The location and dimensions of a sign bearing the emergency contact name and telephone number shall be posted, pursuant to the approved plans. (5) At all times, the permittee shall ensure that the small wireless facility complies with the most current regulatory and operational standards, including, but not limited to, radio -frequency emissions standards, adopted by the FCC and antenna height standards adopted by the Federal Aviation Administration. 13 Ordinance No. XX (2021) (6) The permittee shall assume full liability for damage or injury caused to any property or person by the small wireless facility. (7) The permittee shall agree to the following indemnity provision, as approved by the City Attorney, which shall substantially read as follows: The permittee shall agree to save, indemnify, and keep harmless the City and all its officers, agents, employees, departments and agencies against all liabilities, judgments, costs and expenses which may in any manner or form accrue against the City or against any of its officers, agents, employees, departments or agencies in consequence of the issuance or granting of a Small Wireless Facility Permit or in consequence of the use or occupancy of any sidewalk, street or other public place, or in any other wise by virtue thereof, and will in all things strictly comply with the conditions of the Small Wireless Facility Permit and with this Code, all ordinances, rules and regulations of the City relating to the Small Wireless Facility Permit. (8) All conditions of approval shall be binding as to the Applicant and all successors in interest to the permittee. (j) Additional conditions of approval for small wireless facilifies in the public right-of- way. In addition to the required approvals of Section 22.42.135, approval of small wireless facilities in the public right-of-way shall be subject to the following conditions of approval: (1) The small wireless facility shall be subject to such conditions, changes or limitations as are from time to time deemed necessary by the Director, in consultation with the Public Works Director, for the purpose of: a. Protecting the public health, safety, and welfare; b. Preventing interference with pedestrian and vehicular traffic; and c. Preventing damage to the public right-of-way or any property adjacent to if. (2) The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior written consent of the owner of that structure, improvement, or property. No structure, improvement, or property owned by the City shall be moved to accommodate a small wireless facility unless the Director, in consultation with the Public Works Director, determines that such movement will not adversely affect the City or any surrounding businesses or residents, and the permittee pays all costs and expenses related to the relocation of the City's structure, improvement, or property. Prior to commencement of any work pursuant to an Encroachment Permit issued for any small wireless facility within the public right-of-way, the permittee 14 Ordinance No. XX (2021) shall provide the City with documentation establishing to the City's satisfaction that the permittee has the legal. right to use or interfere with any other structure, improvement, or property within the public right -of- way to be affected by the permittee's small wireless facility. (3) The permittee shall repair, at its sole cost and expense, any damage including, but not limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to City streets, sidewalks, curbs, gutters, trees, parkways, slopes, street lights, traffic signals, improvements of any kind or nature, or utility lines and systems, underground utility lines and systems, or sewer systems and sewer lines that result from any activities performed in connection with the installation or maintenance of a small wireless facility in the public right-of-way. The permittee shall restore such areas, structures, and systems to the condition in which they existed prior to the installation or maintenance that necessitated the repairs. In the event the permittee fails to complete such repair within 15 calendar days stated on a written notice by the Public Works Director, or such shorter timeframe as the Public Works Director may provide in the event of health and safety issues, the Public Works Director shall cause such repair to be completed at permittee's sole cost and expense. (4) The permittee shall modify, remove, or relocate its small wireless facility, or portion thereof, without cost or expense to the City, if and when made necessary by: Any public improvement project, including, but not limited to, the construction, maintenance, or operation of any underground or aboveground public infrastructure 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; b. Any abandonment of any street, sidewalk, or other public facility; or c. Any change of grade, alignment or width of any street, sidewalk, or other public facility. (5) Any modification, removal, or relocation of the small wireless facility shall be completed within one hundred eighty (180) days of written notification by the Director, in consultation with the Public Works Director, unless exigencies dictate a different period for removal or relocation. Modification or relocation of the small wireless facility shall require submittal, review, and approval of a permit amendment pursuant to this Code. The permittee shall be entitled, on permittee's election, to either a pro-rata refund of fees paid for the original permit or to a new permit, without additional fee, at a location as close to the original location as the standards set forth in this Code allow. In the event the small wireless facility is not modified, removed, or relocated within said period of time, the City may cause the same to be done at the IS Ordinance No. XX (2021) sole cost and expense of permittee. In the event of exigent circumstances, as determined by the Director, in consultation with the Public Works Director, the City may modify, remove, or relocate small wireless facilities without prior notice to the permittee provided that the permittee is notified in writing within a reasonable period thereafter. (k) Abandonment or discontinuation of use. (1) Small wireless facilities that have not provided wireless communication services for a cumulative period of ninety (90) days in a one (1) year period shall be considered abandoned and shall be removed promptly from the premises no later than three (3) months after written notification is sent by the Director to the operator of the small wireless facility and property owner. Such removal shall be in accordance with proper health and safety requirements and all ordinances, rules and regulations of the City. The permittee shall send to the City a copy of the discontinuation notice required by the California Public Utilities Commission or FCC at the time the notice is sent to the regulatory agencies. (2) Small wireless facilities that are abandoned but not removed within the required three (3) month period from the date of notice shall be in violation of this section, and the operators of the small wireless facility and the owners of the property shall be subject to penalties for violations under the enforcement and penalties provisions of this Code. The City may remove all abandoned small wireless facilities following the three (3) month removal period at the operators' expense. Facilities removed by the City shall be stored for no less than fifteen (15) days and thereafter disposed of as permitted by law. (I) Appeals. A decision of the Director pursuant to this section may be appealed by the Applicant or permittee to the City Manager pursuant to Chapter 22.74 (Appeals) of this Code, and such appeal shall be reviewed and decided in conformance with the time periods and procedures established by applicable state and federal law, and FCC regulations and orders. SECTION III. Section 22.74.030 (Appeals of Decisions) of Chapter 22.74 (Appeals) of Title 22 (Development Code) of the Diamond Bar Municipal Code is hereby revised to read as follows (deletions in strikethrough; additions in bold/underline): Determinations and actions that may be appealed, and the authority to act on an appeal shall be as follows: (1) Director and hearing officer appeals. A decision rendered by the director or hearing officer may be appealed to the commission; except that a decision by the director pursuant to Section 22,42.135 related to small wireless facilities may be appealed to the city manager; and [[1 Ordinance No. XX (2021) (2) Commission appeals. A decision rendered by the commission may be appealed to the council. SECTION IV. Subsection (a) of Section 22.74,040 (Filing and Processing of Appeals) of Chapter 22.74 (Appeals) of Title 22 (Development Code) of the Diamond Bar Municipal Code is hereby revised to read as follows (deletions in strikethrough; additions in bold/underline): (a) Timing and form of appeal. Appeals shall be submitted in writing and filed with the department or city clerk, as applicable, on a city application form, within ten days after the date the decision is rendered by the director or the adoption of the resolution by the hearing officer or commission. The appeal shall specifically state the pertinent facts of the case and the basis for the appeal. Appeals addressed to the commission or citV manager shall be filed with the department, while appeals addressed to the council shall be filed with the city clerk. Appeals shall be accompanied by the filing fee set by the city's fee resolution. SECTION V. Table 4-1 (Review Authority) in Section 22.44.020 (Authority for Land Use and Zoning Decisions) of Chapter 22.44 (Applications, Processing, and Fees) of Title 22 (Development Code) of the Diamond Bar Municipal Code is hereby amended to add a new row for "Small Wireless Facility Permit", to be placed in alphabetical order within said Table, to read as follows (deletions in strikethrough; additions in bold/underline): Type of Permit or Decision Director Hearing Officer Planning Commission City Council Small Wireless Facilit Permit Final* final. SECTION VI. Public Resources Code § 21065 defines "project" as "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment." The proposed Ordinance does not have the potential to result in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, as the Ordinance does not call for any change in the existing environmental conditions within the City. The proposed Ordinance merely updates existing City regulations to reflect the FCC's new laws governing the deployment of small wireless facilities, which are already permitted 17 Ordinance No. XX (2021) uses within the City. Accordingly, the Ordinance is not a "project" subject to CEQA. (Public Resources Code § 21065; CEQA Guidelines § 15378(a).) Even if the Ordinance could be construed to be a project subject to CEQA, the proposed Ordinance is exempt because the proposed Ordinance merely updates existing City regulations to reflect the FCC's new laws governing the deployment of small wireless facilities and does not authorize new programs or activities. The proposed Ordinance calls for the continued operation of small wireless facilities involving no expansion of the existing uses. As a result, the proposed Ordinance is exempt from CEQA pursuant to the Class 1 exemption. Moreover, CEQA's Class 3 Exemption applies to the construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure. (CEQA Guidelines, § 15303.) The proposed Ordinance allows for the deployment of new, small wireless facilities on pre-existing or new small structures within the City, therefore, the proposed Ordinance is exempt from CEQA pursuant to the Class 3 exemption. SECTION VII. Severability. If any section, clause, phrase, word or portion of this Ordinance is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance and each other section, clause, phrase, word or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, words or portions thereof be declared invalid or unconstitutional. SECTION VIII. The City Clerk shall attest and certify to the passage and adoption of this Ordinance within 15 days after adoption, cause it to be published or posted in accordance with California law, and it shall be effective 30 days after adoption pursuant to Government Code Section 36937, PASSED, APPROVED and ADOPTED this _th day of , THE CITY OF DIAMOND BAR: Steve Tye, Mayor fF� Ordinance No. XX (2021) ATTEST: I, Kristina Santana, City Clerk of the City of Diamond Bar, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Diamond Bar held on the _ day of 2021, and was duly adopted at a regular meeting of the City Council of the City of Diamond Bar held on the _ day of , 2021, by the following vote: AYES: COUNCIL MEMBERS: NOES: COUNCIL MEMBERS: ABSENT: COUNCIL MEMBERS: ABSTAIN: COUNCIL MEMBERS: Kristina Santana, City Clerk 19