HomeMy WebLinkAboutAGENDA REPORT 2022 0518 CCSA REG ITEM 09ACITY OF MOORPARK, CALIFORNIA
City Council Meeting
of May 18, 2022
ACTION APPROVED STAFF
RECOMMENDATIONS, INCLUDING
ADOPTION OF RESOLUTION NO.
2022-4092, AS AMENDED. (ROLL
CALL VOTE: UNANIMOUS)
BY A. Hurtado.
A. Consider Resolution No. 2022-4092 Amending Development Standards for Small
Wireless Facilities; Direct Staff to Pursue Legislative Efforts to Revisit the Federal
Communications Commission’s Radiofrequency Emissions Standards that were
Adopted as Part of the Telecommunications Act of 1996; and Receive and File a
Report on Small Wireless Facility Regulatory and Legal Considerations. Staff
Recommendation: 1) Adopt Resolution No. 2022-4092 amending development
standards for small wireless facilities and rescinding Resolution No. 2019-3800;
and 2) Direct staff to encourage federal lawmakers to revisit the FCC?s RF
emissions standards that were adopted as part of the Telecommunications Act of
1996; and 3) Receive and file a report on small wireless facility regulatory and legal
considerations. (ROLL CALL VOTE REQUIRED) (Staff: Kevin Ennis, City
Attorney; Daniel Kim, City Engineer/Public Works Director; Brian Chong,
Assistant to the City Manager)
Item: 9.A.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Kevin Ennis, City Attorney
Daniel Kim, City Engineer/Public Works Director
Brian Chong, Assistant to the City Manager
DATE: 05/18/2022 Regular Meeting
SUBJECT: Consider Resolution No. 2022-___ Amending Development Standards
for Small Wireless Facilities; Direct Staff to Pursue Legislative Efforts
to Revisit the Federal Communications Commission’s
Radiofrequency Emissions Standards that were Adopted as Part of the
Telecommunications Act of 1996; and Receive and File a Report on
Small Wireless Facility Regulatory and Legal Considerations
SUMMARY
On February 23, 2022, the City Council conducted a special meeting to discuss the
Federal Communications Commission’s (FCC’s) regulations about small wireless
facilities. The City Council also received information about the City’s small wireless facility
regulations, which were adopted in April 2019, the same month the FCC’s current
regulations went into effect. After receiving a staff presentation and considering public
testimony from 13 individuals, the City Council provided direction to staff to: (1) Review
the City’s small wireless facility regulations and compare them to other jurisdictions, and
recommend any updated best practices that may be adopted by the City; (2) Evaluate the
possibility of having a third-party reviewer of wireless facility applications, including field
testing radiofrequency (“RF”) emissions of wireless facilities to ensure compliance with
FCC standards; (3) Identify potential legislative efforts to restore local control over
wireless facilities; and (4) Research various regulatory and legal considerations related
to small wireless facilities.
Staff has followed this direction and is recommending that the City Council amend certain
development standards for small wireless facilities, receive an update regarding wireless
telecommunications facility consulting services, and receive and file a report on small
wireless facility regulatory and legal considerations.
Item: 9.A.
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BACKGROUND
In response to ongoing community concerns surrounding the installation of a small cell
facility in the Peach Hill neighborhood, on February 23, 2022, the City Council conducted
a special meeting to discuss the FCC’s Declaratory Ruling and Third Report and Order
(“FCC Order”) regarding regulation of small wireless facilities.
At that City Council meeting, concern was largely focused on the recent deployment of
small wireless facilities within residential neighborhoods. This is a somewhat new
phenomenon, being driven by efforts to densify commercial cellular networks to provide
faster data services through successive wireless technologies (3G, 4G, 5G, etc.), and to
provide wireless service to a rapidly increasing number of cellular devices. The FCC
Order, which went into effect on April 15, 2019, was expressly intended to promote this
type of expansion of wireless services.
The FCC Order builds on the general requirements of the federal Telecommunications
Act of 1996. That law prohibits state and local government regulations that prohibit or
have the effect of prohibiting personal wireless services. Courts have said that this rule
preempts local regulations that:
•Ban wireless services;
• “Materially inhibit” wireless service; or
• Prevent a service provider from closing a significant gap in its service coverage,
densifying a network, or improving existing service.
The FCC Order expanded these rules as applied to small wireless facilities whether on
private property and in the public right-of-way. More specifically, the FCC Order
prohibited small wireless facility regulations unless they meet the following requirements:
•Regulations must be reasonable and related to aesthetics or interference with the
right-of-way;
•Regulations must be no more burdensome than regulations applied to other types
of infrastructure deployments;
•Regulations must be objective (i.e. non-discretionary) and published in advance;
and
•Fees must be based on objectively reasonable approximation costs.
Although a subsequent court decision vacated the requirement for objective regulations,
local governments must still allow small wireless facilities in the public right-of way and
are limited in the fees that can be charged.
Local governments are also notably limited with respect to consideration of health and
environmental effects of RF emissions from wireless facilities. Even before the FCC
Order, the Telecommunications Act provided:
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“No State or local government or instrumentality thereof may regulate the
placement, construction, and modification of personal wireless service
facilities on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the [FCC’s]
regulations concerning such emissions.”
Due to this rule, the City cannot adopt regulations for small wireless facilities (or any other
wireless facilities) based on possible health impacts from RF emissions that meet the
FCC standards.
The City can, and did, adopt regulations that establish non-residential zones as preferred
locations for small wireless facilities, but the City must still allow some sort of exception
to allow a small wireless facility within a residential zone if it is needed to fill a significant
gap service coverage.
The courts have not adopted any bright-line rule for what constitutes a “significant gap,”
except to say it is not equivalent to simple dead spot in coverage. Courts have instead
emphasized that the issue is very fact-driven and decided on a case-by-case basis due
to Factors such as the following:
• The number of wireless users affected.
• Drop call or failure rates.
• The number of customers potentially affected.
• Possible public safety risks.
• Impact on roads, highways, railways, and commercial districts.
• Adequacy or reliability of in-building service.
If there is a significant gap, a service provider must be allowed to fill in in the least intrusive
manner; which means there is no other location or technological means available to fill
the gap.
This aspect of the law is already incorporated in the City’s current policy, which requires
small wireless facility applications that involve less-preferred locations or structures to
include written evidence that locating in any more preferred location or structure within
500 feet from the proposed site would be technically infeasible.
DISCUSSION
Recommended Changes to City’s Small Wireless Facility Regulations
The City Council directed staff to review the City’s existing small wireless facility
regulations and identify potential ways to strengthen them to maximize local control and
authority, while still complying with the FCC’s limitations on local regulatory authority.
While this was a key consideration when the City quickly adopted its current regulations
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in light of the FCC Order that became effective in April 2019, several years of enactment
since then may have yielded new best practices and regulatory options.
Following review of other communities’ ordinances (including the Cities of Malibu and
Agoura Hills, which were repeatedly discussed at the February 23, 2022, City Council
meeting), staff confirmed that no community had fully prohibited small wireless facilities
in residential zones. Even where language that appeared to prohibit them, exemptions
were always also built in such that the regulations complied with the FCC’s prohibitions
on local laws that ban, or have the effect of banning, wireless services.
However, staff did identify several items that would clarify and incorporate current best
practices into the City’s small wireless facility regulations:
Definition of “Residential Area” and “Residential Zone”
The City’s current regulations identify a spectrum of potential small wireless facility
locations from most desirable (non-residential zones) to least desirable (residential
areas) locational preferences. However, neither of these terms are currently
defined. Staff recommends that these terms be unified into a single “Residential
Zone” definition and that it is clarified that public right-of-way adjacent to a
residential zoning district be included in the definition of a “Residential Zone.” Staff
further recommends that it be clarified that “Residential Zones” include those
zones designated as “Rural Residential Zones” and “Urban Residential Zones” in
Moorpark Municipal Code Chapter 17.16. This would exclude open space and
agricultural zones from the definition, since locating a small wireless facility in
those zones would be preferable to locating it adjacent to denser residential
neighborhoods.
Additional Locational Preferences for Small Wireless Facilities
The City’s current regulations identify a spectrum of three tiers of potential small
wireless facility locations from most desirable to least desirable locational
preferences. Staff recommends that these locational preferences be refined
further to better direct telecommunication providers to the locations where the City
prefers small wireless facilities to be located as shown below.
Current Locational Preferences Proposed Locational Preferences
(1)Any location in a non-residential zone or
non-residential Specific Plan designation.
(2)Any location in a residential zone 250 feet
or more from any structure approved for a
residential use.
(3)If located in a residential area, a location
that is as far as possible from any
structure approved for residential use.
(1)Any location in a non-residential zone or
non-residential Specific Plan Designation.
(2)A location in a residential zone adjacent to
property owned in common by a
homeowners’ association where there is
not an existing structure approved for
residential use within 250 feet.
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Current Locational Preferences Proposed Locational Preferences
(3) Any location in a residential zone 250 feet
or more from any structure approved for a
residential use.
(4) Any location in a residential zone 100 feet
or more from any structure approved for a
residential use.
(5) If located in a residential zone within 100
feet from a structure approved for a
residential use, as far as is reasonably
possible from any structure approved for a
residential use.
Proposed Locational Preference (2) establishes a preference to locate small
wireless facilities, if there is no viable non-residential zone location, in residential
zones adjacent to property owned in common by a homeowners’ association
where there is not an existing structure approved for residential use. Generally,
such areas adjacent to right-of-way would consist of HOA-maintained slopes and
open space.
Proposed Locational Preference (4) establishes an additional preference after the
current middle preference for a location in a residential zone 100 feet or more from
a residential structure.
Proposed Locational Preference (5) is based on Current Locational Preference (3),
but has been updated to reflect new Location Preference (4) and to clarify that a
small wireless facility in a residential zone be as far as is reasonably possible from
a residential structure. This will provide the City Engineer with additional flexibility
in finalizing a location. For example, if the current standard would suggest a
location on a new pole six inches from a proposed existing streetlight location, that
would not be reasonable.
A resolution containing these recommended amendments is provided as Attachment 1.
Update on Contracting for Small Wireless Facility Application Review and RF Testing
The City’s current review process for small wireless facilities in the public right-of-way
was developed by the Telecom Law Firm, a consultant hired by the City. Currently, Public
Works staff reviews applications and plans for proposed small wireless facilities in the
public right-of-way to ensure compliance with the City’s small wireless facility regulations,
subject to the FCC’s restrictive limits on what local governments are allowed to regulate
(cannot effectuate a ban on service; cannot consider health and environmental impacts if
the proposed facility meets FCC standards).
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While staff can easily review most components of the application, such as the size of the
facility and consent of the property owner (e.g., the City, if a facility is proposed on a City-
owned streetlight), some items require specific credentials and expertise to review. For
example, the City does not currently employ an RF engineer to confirm the RF emission
calculations submitted by an RF engineer as part of a small wireless facility application.
Rather, the City requires an RF engineer to self-certify that the RF emissions meet FCC
standards. As a second example, small wireless facility applicants currently self-certify
that a proposed facility will close a service gap, which is necessary for a facility to be
eligible for the FCC’s small wireless facility preemption. To provide additional double-
checks of these and other technical components of small wireless facility permit
applications, the City could retain a third-party consultant to confirm these components.
At the February 23, 2022, City Council meeting, the City Council discussed the
commissioning of a firm to conduct post-installation RF emissions test at wireless facilities
to ensure that they are indeed operating within FCC limits. The current regulatory
framework is based on modeling, where an RF engineer calculates the RF emissions
based on the numbers and types of telecommunications apparatuses that are proposed
at a site.
On April 12, 2022, the City released a Request for Proposals (RFP) for Wireless
Telecommunications Facility Consulting Services, whereby a selected consultant would
provide a technical review of small wireless facility permit applications and, upon the
City’s request, would field test a wireless telecommunications facility to determine
compliance with FCC standards.
The City received one proposal, which was reviewed by staff from the City Manager’s
Office, Public Works Department, and Community Development Department. However,
the proposal was subsequently withdrawn due to market changes in the cost of providing
the requested services. Based on previous City Council direction, staff intends to reissue
a Request for Proposals and return to the City Council for award of a contract for the
requested wireless telecommunications facilities consulting services.
Continued Legislative Efforts
Full local government control over the siting of small wireless facilities in the public right-
of-way or in residential zones is preempted by federal law. Prior to the FCC Order,
legislative efforts were focused on preventing such state and federal laws from being
passed. After the FCC’s preemption of local control, legislative efforts were focused on
rescinding the FCC’s actions or otherwise changing the federal law to address local
concerns. However, the City does not have the ability to change federal law; legislative
efforts are therefore appropriately directed at the federal government rather than the City.
For its part, the City has a long record of opposing state and federal preemption of local
government control over wireless facilities, both before and after the FCC Order.
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In 2017, the City successfully lobbied against SB 649, a proposed state law that sought
to remove local control of wireless facilities in the public right-of-way, with limitations
similar to those in the FCC Order. The bill was ultimately vetoed by then-Governor Jerry
Brown.
In 2018, as the FCC was preparing its Order, City officials reached out to Congresswoman
Julia Brownley, expressing concern with the proposed regulations. Congresswoman
Brownley wrote back that she shared the City’s interest in maintaining local oversight over
the placement of communications infrastructure and that she did not believe that local
input on tower placement should be abandoned.
In 2019, the City signed on to support bills in both the U.S. Senate (S. 2012) and the
U.S. House of Representatives (H.R. 530), which would have rescinded the FCC Order,
which was by then published. However, both bills failed, and the FCC’s regulations
remain in effect today.
In 2021, the City opposed California’s SB 556, which would have placed further obstacles
to local government control over small wireless facility placement. Lobbying efforts were
successful, and the bill was ultimately vetoed by Governor Newsom. In 2021, staff also
reached out to Senator Dianne Feinstein’s staff to discuss the potential for S. 2012 to be
reintroduced into Congress (Senator Feinstein was the author of the original bill).
Unfortunately, they were not planning to reintroduce the bill that had failed a year earlier.
Given that there appears to be little potential for a change in federal law or the FCC’s
regulations regarding local control over small wireless facilities, legislative efforts by the
City to fully restore local control are not likely to succeed.
Staff recommends that the City Council direct staff to encourage federal lawmakers
instead to revisit the FCC’s RF emissions standards that were adopted as part of the
Telecommunications Act of 1996. A draft letter to the FCC is provided as Attachment 2.
Review of Small Wireless Facility Regulatory and Legal Considerations
There were a number of questions raised by the City Council and the community at the
February 23, 2022, City Council meeting. Below is a response to many of the questions
and concerns raised. Any discussions regarding legal options available to the City are
not outlined. It is appropriate to note that the City Council convened a closed session in
March 2022 to discuss legal implications associated with the regulation of small cell
facilities. As noted in the minutes of the March 2022 meeting, there were no reportable
actions taken as a result of the closed session.
Below is a summary of the questions/issue raised throughout the public dialogue among
the City Council and members of the community, with responses as appropriate. It is
worth noting that staff has been engaged and responsive to the community throughout
the process, although a disagreement remains surrounding the overall solution. There is
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a desire among the property owners and others in the coalition that has been formed
that the City should work with AT&T to remove the facility. The City lacks the
authority to mandate removal of the small cell facility unless and until there is a breach
by AT&T.
Question: Is 5G technology safe?
The City’s regulations do not apply to any specific technology. Federal law does not
allow the City to either discriminate between types of wireless technology or, as stated
above, consider certain health and environmental effects related to RF emissions. As
stated in the federal Telecommunications Act:
“No State or local government or instrumentality thereof may regulate the
placement, construction, and modification of personal wireless service
facilities on the basis of the environmental effects of radio frequency
emissions to the extent that such facilities comply with the [FCC’s]
regulations concerning such emissions.”
Federal law preempts local regulation of wireless telecommunication facilities based on
RF emissions that meet standard set by the Federal Communications Commission.
These RF standards have not changed since 1996.
Question: Why does the City not challenge the installation of this facility given
the recent D.C. circuit court ruling?
In the Environmental Health Trust v. FCC, the Court of Appeals for the District of
Columbia, ordered the FCC to reconsider in part its decision to not update its
RF standards, but the court did not invalidate the existing standards. In fact, the court
upheld the FCC’s decision to not revisit its standards insofar as they relate to the potential
for the thermal effect of RF emission to cause cancer. Ultimately, the court only ordered
the FCC to reconsider whether there was sufficient evidence that thermal effects from
RF emissions below current standards could potentially have health impacts other than
cancer. Given that, the FCC must either: (1) produce evidence that changes are not
needed to address non-cancer related health impacts; or (2) reopen the process, which
may or may not lead to new RF standards.
There is currently no open FCC proceeding in this matter, and the FCC – which has new
leadership under the new administration – has not indicated how or when it might
proceed.
The City has prepared a letter (Attachment 2) seeking the FCC to resume the rule-making
process.
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Question: How much would it cost to relocate a small cell wireless facility and
would AT&T entertain moving this facility if the City were to cover the
expense to do so?
Staff posed this question to AT&T who provided the following response. “The average
cost to build a facility like the one question is approximately $150,000.00. AT&T does not
charge nor accept compensation from any city or county to relocate a facility that has
been properly approved by the jurisdiction and meets all FCC guidelines.”
Question: If the current small cell facilities are switched from 4G to 5G, will a new
permit need be required?
As previously mentioned, the City’s regulations do not apply to any specific technology
and federal law does not allow the City to either discriminate between types of wireless
technology. The City’s regulations incorporate the definition of “small wireless facilities”
found in the FCC Order, which is as follows:
“Small wireless facilities are facilities that meet each of the following
conditions:
(1) The facilities –
(i) Are mounted on structures 50 feet or less in height including their
antennas as defined in § 1.1320(d); or
(ii) Are mounted on structures no more than 10 percent taller than
other adjacent structures; or
(iii) Do not extend existing structures on which they are located to a
height of more than 50 feet or by more than 10 percent, whichever is
greater;
(2) Each antenna associated with the deployment, excluding associated
antenna equipment (as defined in the definition of antenna in § 1.1320(d)),
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;
(4) The facilities do not require antenna structure registration under part 17
of this chapter;
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(5) The facilities are not located on Tribal lands, as defined under 36 CFR
800.16(x); and
(6) The facilities do not result in human exposure to radiofrequency radiation
in excess of the applicable safety standards specified in § 1.1307(b).
This definition does not distinguish nor define the technology used from the facility.
Hypothetically, if the technology deployed at the Peach Hill location was to transition from
4G to 5G, if such a transition facilitated the installation of components caused a
substantial deviation from the original design plans that what was submitted to the City,
a new permit would be required. If the transition to a new or different technology did not
result in a substantial deviation from the original plans submitted and reviewed as part of
the application process, a new permit would not be required.
Question: Why does the City not require liability insurance from
telecommunication providers to cover medical costs incurred by
those who may require medical attention caused by the
RF emissions?
As previously stated, federal law does not allow the City to either discriminate between
types of wireless technology or, as stated above, consider certain health and
environmental effects related to RF emissions so long as they meet FCC standards. A
City requirement that applicants provide proof of insurance to cover medical costs
attributable to RF emissions would likely be contrary to this limitation.
Moreover, to the extent that such polices are not commercially available, such a
requirement would “materially inhibit” wireless service and would therefore likely violate
federal law on such grounds as well.
FISCAL IMPACT
None.
COUNCIL GOAL COMPLIANCE
These actions do not support a current strategic directive.
STAFF RECOMMENDATION (ROLL CALL VOTE REQUIRED)
1. Adopt Resolution No. 2022-___ amending development standards for small
wireless facilities and rescinding Resolution No. 2019-3800; and
2. Direct staff to encourage federal lawmakers to revisit the FCC’s RF emissions
standards that were adopted as part of the Telecommunications Act of 1996; and
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3. Receive and file a report on small wireless facility regulatory and legal
considerations.
Attachment 1: Resolution No. 2022-___ Amending Development Standards for Small
Wireless Facilities and Rescinding Resolution No. 2019-3800
Attachment 2: Draft Letter to the Federal Communications Commission
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ATTACHMENT 1
RESOLUTION NO. 2022-___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, AMENDING CITYWIDE
POLICY REGARDING PERMITTING REQUIREMENTS
AND DEVELOPMENT STANDARDS FOR SMALL
WIRELESS FACILITIES AND RESCINDING RESOLUTION
NO. 2019-3800
WHEREAS, on September 26, 2018, the Federal Communications Commission
adopted its Declaratory Ruling and Third Report and Order (“Report and Order”) relating
to placement of small wireless facilities in public right-of-way; and
WHEREAS, on April 17, 2019, consistent with the Report and Order, the City
Council adopted Resolution No. 2019-3800, which adopted a Citywide policy regarding
permitting requirements and development standards for small wireless facilities in the
public right-of-way; and
WHEREAS, on February 23, 2022, the City Council conducted a special meeting
to take public testimony and discuss small wireless facility regulations, and the City
Council directed staff to review the City’s regulations and identify potential changes to
strengthen the City’s regulations; and
WHEREAS, on May 18, 2022, the City Council received a staff report and public
testimony regarding small wireless facility regulations; and
WHEREAS, the City Council desires to amend its small wireless facility
regulations to clarify the definition of residential zones and to provide additional
locational preferences regarding the siting of small wireless facilities.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council determines that the adoption of this Resolution is
exempt from review under the California Environmental Quality Act (“CEQA”) (California
Public Resources Code Section 21000, et seq.), pursuant to State CEQA Regulation
§15061(b)(3) (14 Cal. Code Regs. § 15061(b)(3)) covering activities with no possibility
of having a significant effect on the environment. In addition, the City of Moorpark has
determined that the ordinance is categorically exempt pursuant to Section 15301 of the
CEQA Regulations applicable to minor alterations of existing governmental and/or
utility-owned structures.
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Resolution No. 2022-___
Page 2
SECTION 2. The City Council hereby adopts an amended “Citywide Policy
Regarding Permitting Requirements and Development Standards for Small Wireless
Facilities” set forth in Exhibit A, which is hereby incorporated as though set forth in full,
and includes the following amendments:
Section 1.2, Definitions, is amended to add a definition of “Residential Zone” as
follows:
“Residential Zone” means any residential zoning district designated as a
“Rural Residential Zone” or “Urban Residential Zone” in Moorpark Municipal
Code Chapter 17.16, or a corresponding designation in a Specific Plan. For
the purposes of this Resolution, “Residential Zone” shall also include public
right-of-way adjacent to a residential zoning district.
Section 2.6(b), Locational Preferences, is amended as follows:
(1) any location in a non-residential zone or non-residential Specific Plan
designation;
(2) any location in a residential zone 250 feet or more from any structure
approved for a residential use;
(3) If located in a residential area, a location that is as far as possible from any
structure approved for a residential use.
(1) Any location in a non-residential zone or non-residential Specific Plan
designation;
(2) A location in a residential zone adjacent to property owned in common by a
homeowners’ association where there is not an existing structure approved
for residential use within 250 feet;
(3) Any location in a residential zone 250 feet or more from any structure
approved for a residential use;
(4) Any location in a residential zone 100 feet or more from any structure
approved for a residential use;
(5) If located in a residential zone within 100 feet from a structure approved for a
residential use, as far as is reasonably possible from any structure approved
for a residential use.
SECTION 3. City Council Resolution No. 2019-3800 is hereby rescinded.
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Resolution No. 2022-___
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SECTION 4. The City Clerk shall certify to the adoption of this resolution and
shall cause a certified resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this 18th day of May 2022.
________________________________
Janice S. Parvin, Mayor
ATTEST:
___________________________________
Ky Spangler, City Clerk
EXHIBIT A:
Citywide Policy Regarding Permitting Requirements and Development Standards for
Small Wireless Facilities
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Resolution No. 2022-___
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EXHIBIT A
CITY OF MOORPARK
CITYWIDE POLICY REGARDING PERMITTING REQUIREMENTS AND
DEVELOPMENT STANDARDS FOR SMALL WIRELESS FACILITIES
SECTION 1. GENERAL PROVISIONS
SECTION 1.1. PURPOSE AND INTENT
(a) On September 27, 2018, the Federal Communications Commission (“FCC”)
adopted a Declaratory Ruling and Third Report and Order, FCC 18-133 (the
“Small Cell Order”), in connection with two informal rulemaking proceedings
entitled Accelerating Wireless Broadband Deployment by Removing Barriers to
Infrastructure Investment, WT Docket No. 17-79, and Accelerating Wireline
Broadband Deployment by Removing Barriers to Infrastructure Investment, WC
Docket No. 17-84. The regulations adopted in the Small Cell Order significantly
curtail the local authority over wireless and wireline communication facilities
reserved to State and local governments under sections 253 and 704 in the
federal Telecommunications Act. Numerous legal challenges to the Small Cell
Order have been raised but its regulations will become effective while such
challenges are pending. Although the provisions may well be invalidated by
future action, the City recognizes the practical reality that failure to comply with
the Small Cell Order while it remains in effect will likely result in greater harm to
the City's interests than if the City ignored the FCC's ruling. Accordingly, the City
Council adopts this Policy (“Policy”) as a means to accomplish such compliance
that can be quickly amended or repealed in the future without the need to
amend the City's municipal code.
(b) The City of Moorpark intends this Policy to establish reasonable, uniform and
comprehensive standards and procedures for small wireless facilities
deployment, construction, installation, collocation, modification, operation,
relocation and removal within the City's territorial boundaries, consistent with
and to the extent permitted under federal and California state law. The
standards and procedures contained in this Policy are intended to, and should
be applied to, protect and promote public health, safety and welfare, and
balance the benefits from advanced wireless services with local values, which
include without limitation the aesthetic character of the City. This Policy is also
intended to reflect and promote the community interest by (1) ensuring that the
balance between public and private interests is maintained; (2) protecting the
City's visual character from potential adverse impacts and/or visual blight
created or exacerbated by small wireless facilities and related communications
infrastructure; (3) protecting and preserving the City's environmental resources;
(4) protecting and preserving the City's public rights-of-way and municipal
infrastructure located within the City's public rights-of-way; and (5) promoting
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Resolution No. 2022-___
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access to high-quality, advanced wireless services for the City's residents,
businesses and visitors.
(c) This Policy is not intended to, nor shall it be interpreted or applied to: (1) prohibit
or effectively prohibit any personal wireless service provider's ability to provide
personal wireless services; (2) prohibit or effectively prohibit any entity's ability
to provide any telecommunications service, subject to any competitively neutral
and nondiscriminatory rules, regulations or other legal requirements for rights-of-
way management; (3) unreasonably discriminate among providers of
functionally equivalent personal wireless services; (4) deny any request for
authorization to place, construct or modify personal wireless service facilities on
the basis of environmental effects of radio frequency emissions to the extent that
such wireless facilities comply with the FCC's regulations concerning such
emissions; (5) prohibit any collocation or modification that the City may not deny
under federal or California state law; (6) impose any unreasonable,
discriminatory or anticompetitive fees that exceed the reasonable cost to provide
the services for which the fee is charged; or (7) otherwise authorize the City to
preempt any applicable federal or California law.
SECTION 1.2. DEFINITIONS
(a) Undefined Terms. Undefined phrases, terms or words in this Policy will have the
meanings assigned to them in 1 U.S.C. § 1, as may be amended or superseded,
and, if not defined therein, will have their ordinary meanings. If any definition
assigned to any phrase, term or word in Section 1.2 conflicts with any federal or
state-mandated definition, the federal or state-mandated definition will control.
(b) Defined Terms.
(1) “Accessory equipment” means the same as “antenna equipment”
as defined by FCC in 47 C.F.R. § 1.6002(b), as may be amended or
superseded.
(2) “Antenna” means the same as defined by the FCC in 47 C.F.R. §
1.6002(b), as may be amended or superseded.
(3) “Approval authority” means the City official(s) responsible for
reviewing applications for small cell permits and vested with the
authority to approve, conditionally approve or deny such applications
as provided in this Policy.
(4) “Collocation” means the same as defined by the FCC in 47 C.F.R. §
1.6002(g), as may be amended or superseded.
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(5) “Concealed” or “concealment” means camouflaging techniques
that integrate the transmission equipment into the surrounding natural
and/or built environment such that the average, untrained observer
cannot directly view the equipment and would not likely recognize the
existence of the wireless facility or concealment technique.
(6) “Decorative pole” means any pole that includes decorative or
ornamental features and/or materials intended to enhance the
appearance of the pole. Decorative or ornamental features include,
but are not limited to, fluted poles, ornate luminaires and artistic
embellishments. Cobra head luminaires and octagonal shafts made
of concrete or crushed stone composite material are not considered
decorative or ornamental.
(7) “FCC” means the Federal Communications Commission or its duly
appointed successor agency.
(8) “FCC Shot Clock” means the presumptively reasonable time frame
within which the City generally must act on a given wireless
application, as defined by the FCC and as may be amended or
superseded.
(9) “Ministerial permit” means any City-issued non-discretionary permit
required to commence or complete any construction or other activity
subject to the City's jurisdiction. Ministerial permits may include,
without limitation, any building permit, construction permit, electrical
permit, encroachment permit, excavation permit, traffic control permit
and/or any similar over-the-counter approval issued by the City's
departments.
(10) “Personal wireless services” means the same as defined in 47
U.S.C. § 332(c)(7)(C)(i), as may be amended or superseded.
(11) “Personal wireless service facilities” means the same as defined
in 47 U.S.C. § 332(c)(7)(C)(ii), as may be amended or superseded.
(12) “Public right-of-way” means any land which has been reserved for
or dedicated to the City for the use of the general public for public
road purposes, including streets, sidewalks and unpaved areas.
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(13) “Residential Zone” means any residential zoning district designated
as a “Rural Residential Zone” or “Urban Residential Zone” in
Moorpark Municipal Code Chapter 17.16, or a corresponding
designation in a Specific Plan. For the purposes of this Resolution,
“Residential Zone” shall also include public right-of-way adjacent to a
residential zoning district.
(14) “RF” means radio frequency or electromagnetic waves.
(15) “Section 6409” means Section 6409(a) of the Middle-Class Tax
Relief and Job Creation Act of 2012, Pub. L. No. 112-96, 126 Stat.
156, codified as 47 U.S.C. § 1455(a), as may be amended or
superseded.
(16) “Small wireless facility” or “small wireless facilities” means the
same as defined by the FCC in 47 C.F.R. § 1.6002(1), as may be
amended or superseded.
SECTION 2. SMALL WIRELESS FACILITIES
SECTION 2.1. APPLICABILITY; REQUIRED PERMITS AND APPROVALS
(a) Applicable Facilities. Except as expressly provided otherwise in this Policy, the
provisions in this Policy shall be applicable to all existing small wireless facilities
and all applications and requests for authorization to construct, install, attach,
operate, collocate, modify, reconstruct, relocate, remove or otherwise deploy
small wireless facilities within the City's jurisdictional boundaries.
(b) Approval Authority. The approval authority for small wireless facilities in public
rights-of-way shall be the City Engineer or his/her designee. The approval
authority for small wireless facilities outside of public rights-of-way shall be the
Community Development Director or his/her designee.
(c) Small Wireless Facility Permit. A small wireless facility permit, subject to the
approval authority's prior review and approval, is required for any small wireless
facility proposed on an existing, new or replacement structure.
(d) Request for Approval Pursuant to Section 6409. Requests for approval to
collocate, replace or remove transmission equipment at an existing wireless
tower or base station submitted pursuant to Section 6409 are not be subject to
this policy, but shall be reviewed in accordance with Section 6409.
(e) Other Permits and Approvals. In addition to a small wireless facility permit, the
applicant must obtain all other permits and regulatory approvals as may be
required by any other federal, state or local government agencies, which
includes without limitation any ministerial permits and/or other approvals issued
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by other City departments or divisions. All applications for ministerial permits
submitted in connection with a proposed small wireless facility must contain a
valid small wireless facility permit issued by the City for the proposed facility.
Any application for any ministerial permit(s) submitted without such small cell
permit may be denied without prejudice. Furthermore, any small cell permit
granted under this Policy shall remain subject to all lawful conditions and/or legal
requirements associated with such other permits or approvals.
SECTION 2.2. SMALL WIRELESS FACILITY PERMIT APPLICATION
REQUIREMENTS
(a) Application Contents. All applications for a small wireless facility must include all
the information and materials required in this subsection (a).
(1) Application Form. The applicant shall submit a complete, duly executed
small wireless facility permit application using the then-current City form
which must include the information described in this subsection (a).
(2) Application Fee. The applicant shall submit the applicable small wireless
facility permit application fee established by City Council resolution.
Batched applications must include the applicable small wireless facility
permit application fee for each small wireless facility in the batch. If no
permit application fee has been established, then the applicant must
submit a signed written statement that acknowledges that the applicant
will be required to reimburse the City for its reasonable costs incurred in
connection with the application within 10 days after the City issues a
written demand for reimbursement.
(3) Construction Drawings. The applicant shall submit true and correct
construction drawings on plain bond paper and electronically, prepared,
signed and stamped by a California licensed or registered structural
engineer, that depict all the existing and proposed improvements,
equipment and conditions related to the proposed project and project site,
which includes without limitation any and all poles, posts, pedestals,
traffic signals, towers, streets, sidewalks, pedestrian ramps, driveways,
curbs, gutters, drains, handholes, manholes, fire hydrants, equipment
cabinets, antennas, cables, trees and other landscape features. If the
applicant proposes to use existing poles or other existing structures, the
structural engineer must certify that the existing above and below ground
structure will be adequate for the purpose. The construction drawings
must: (i) contain cut sheets that contain the technical specifications for all
existing and proposed antennas and accessory equipment, which
includes without limitation the manufacturer, model number and physical
dimensions; (ii) identify all structures within 250 feet from the proposed
project site and call out such structures' overall height above ground
level; (iii) depict the applicant's plan for electric and data backhaul utilities,
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which shall include the locations for all conduits, cables, wires,
handholes, junctions, transformers, meters, disconnect switches, and
points of connection; (iv) traffic control plans for the installation phase,
stamped and signed by a California licensed or registered civil or traffic
engineer; and (v) demonstrate that proposed project will be in full
compliance with all applicable health and safety laws, regulations or other
rules, which includes without limitation all building codes, electric codes,
local street standards and specifications, and public utility regulations and
orders.
(4) Site Plan. The applicant shall submit a survey prepared, signed and
stamped by a California licensed or registered surveyor. The survey must
identify and depict all existing boundaries, encroachments, buildings,
walls, fences and other structures within 250 feet from the proposed
project site, which includes without limitation all: (i) traffic lanes; (ii) all
private properties and property lines; (iii) above and below-grade utilities
and related structures and encroachments; (iv) fire hydrants, roadside
call boxes and other public safety infrastructure; (v) streetlights,
decorative poles, traffic signals and permanent signage; (vi) sidewalks,
driveways, parkways, curbs, gutters and storm drains; (vii) benches,
trash cans, mailboxes, kiosks and other street furniture; and (viii) existing
trees, planters and other landscaping features.
(5) Photo Simulations. The applicant shall submit site photographs and photo
simulations that show the existing location and proposed small wireless
facility in context from at least three vantage points within the public streets
or other publicly accessible spaces, together with a vicinity map that shows
the proposed site location and the photo location for each vantage point. At
least one simulation must depict the small wireless facility from a vantage
point approximately 50 feet from the proposed support structure or location.
(6) Project Narrative and Justification. The applicant shall submit a written
statement that explains in plain factual detail why the proposed wireless
facility qualifies as a “small wireless facility” as defined by the FCC in 47
C.F.R. § 1.6002(/). A complete written narrative analysis will state the
applicable standard and all the facts that allow the City to conclude the
standard has been met. Bare conclusions not factually supported do not
constitute a complete written analysis. As part of the written statement the
applicant must also include (i) whether and why the proposed support is a
“structure” as defined by the FCC in 47 C.F.R. § 1.6002(m); and (ii)
whether and why the proposed wireless facility meets each required
finding as provided in Section 2.4.
(7) RF Compliance Report. The applicant shall submit an RF exposure
compliance report that certifies that the proposed small wireless facility, as
well as any collocated wireless facilities, will comply with applicable
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federal RF exposure standards and exposure limits. The RF report must
be prepared and certified by an RF engineer acceptable to the City. The
RF report must include the actual frequency and power levels (in watts
effective radiated power) for all existing and proposed antennas at the site
and exhibits that show the location and orientation of all transmitting
antennas and the boundaries of areas with RF exposures in excess of the
uncontrolled/general population limit (as that term is defined by the FCC)
and also the boundaries of areas with RF exposures in excess of the
controlled/occupational limit (as that term is defined by the FCC). Each
such boundary shall be clearly marked and identified for every transmitting
antenna at the project site.
(8) Regulatory Authorization. The applicant shall submit evidence of the
applicant's regulatory status under federal and California law to provide the
services and construct the small wireless facility proposed in the application.
(9) Site Agreement. For any small wireless facility proposed to be installed on
any structure located within the public rights-of-way, the applicant shall
submit a partially-executed site agreement on a form prepared by the City
that states the terms and conditions for such use by the applicant. No
changes shall be permitted to the City's form site agreement except as may
be indicated on the form itself. Any unpermitted changes to the City's form
site agreement shall be deemed a basis to deem the application incomplete.
Refusal to accept the terms and conditions in the City's site agreement
shall be an independently sufficient basis to deny the application.
(10) Property Owner's Authorization. The applicant must submit a written
authorization signed by the property owner that authorizes the applicant to
submit a wireless application in connection with the subject property and,
if the wireless facility is proposed on a utility-owned support structure,
submit a written final utility design authorization from the utility.
(11) Acoustic Analysis. The applicant shall submit an acoustic analysis
prepared and certified by an engineer licensed by the State of California
for the proposed small wireless facility and all associated equipment
including all environmental control units, sump pumps, temporary backup
power generators and permanent backup power generators demonstrating
compliance with the City's noise regulations. The acoustic analysis must
also include an analysis of the manufacturers' specifications for all noise-
emitting equipment and a depiction of the proposed equipment relative to
all adjacent property lines. In lieu of an acoustic analysis, the applicant
may submit evidence from the equipment manufacturer(s) that the
ambient noise emitted from all the proposed equipment will not, both
individually and cumulatively, exceed the applicable noise limits.
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(12) Justification for Non-Preferred Location or Structure. If a facility is
proposed anywhere other than the most preferred location or the most
preferred structure within 500 feet of the proposed location as described in
Section 2.6, the applicant shall demonstrate with clear and convincing
written evidence all of the following:
(A) A clearly defined technical service objective and a map showing
areas that meets that objective;
(B) A technical analysis that includes the factual reasons why a more
preferred location(s) and/or more preferred structure(s) within 500
feet of the proposed location is not technically feasible;
(C) Bare conclusions that are not factually supported do not constitute
clear and convincing written evidence.
(b) Additional Requirements. The City Council authorizes the approval authority to
develop, publish and from time to time update or amend permit application
requirements, forms, checklists, guidelines, informational handouts and other
related materials that the approval authority finds necessary, appropriate or
useful for processing any application governed under this Policy. All such
requirements and materials must be in written form and publicly stated to
provide all interested parties with prior notice.
SECTION 2.3. SMALL WIRELESS FACILITY PERMIT APPLICATION
SUBMITTAL AND COMPLETENESS REVIEW
(a) Requirements for a Duly Filed Application. Any application for a small wireless
facility permit will not be considered duly filed unless submitted in accordance
with the requirements in this subsection (a).
(1) Submittal Appointment. All applications must be submitted to the City at
a pre-scheduled appointment with the approval authority. Potential
applicants may generally submit either one application or one batched
application per appointment as provided below. Potential applicants may
schedule successive appointments for multiple applications whenever
feasible and not prejudicial to other applicants for any other development
project. The approval authority shall use reasonable efforts to offer an
appointment within five working days after the approval authority receives
a written request from a potential applicant. Any purported application
received without an appointment, whether delivered in-person, by mail or
through any other means, will not be considered duly filed, whether the
City retains, returns or destroys the materials received.
(2) Pre-Submittal Conferences. The City encourages, but does not require,
potential applicants to schedule and attend a pre-submittal conference
with the approval authority for all proposed projects that involve small
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wireless facilities. A voluntary pre-submittal conference is intended to
streamline the review process through informal discussion between the
potential applicant and staff that includes, without limitation, the
appropriate project classification and review process; any latent issues in
connection with the proposed project, including compliance with generally
applicable rules for public health and safety; potential concealment issues
or concerns (if applicable); coordination with other City departments
responsible for application review; and application completeness issues.
(b) Applications Deemed Withdrawn. To promote efficient review and timely
decisions, and to mitigate unreasonable delays or barriers to entry caused by
chronically incomplete applications, any application governed under this Policy
will be automatically deemed withdrawn by the applicant when the applicant fails
to tender a substantive response to the approval authority within 60 calendar
days after the approval authority deems the application incomplete in a written
notice to the applicant. As used in this subsection (b), a “substantive response”
must include the materials identified as incomplete in the approval authority's
notice.
(c) Batched Applications. Applicants may submit applications individually or in a
batch; provided, that the number of small wireless facilities in a batch should be
limited to five and all facilities in the batch should be substantially the same with
respect to equipment, configuration, and support structure. Applications
submitted as a batch shall be reviewed together, provided that each application
in the batch must meet all the requirements for a complete application, which
includes without limitation the application fee for each application in the batch. If
any individual application within a batch is deemed incomplete, the entire batch
shall be automatically deemed incomplete. If any application is withdrawn or
deemed withdrawn from a batch, all other applications in the same batch shall be
automatically deemed withdrawn. If any application in a batch fails to meet the
required findings for approval, the entire batch shall be denied.
(d) Additional Procedures. The City Council authorizes the approval authority to
establish other reasonable rules and regulations for duly filed applications, which
may include without limitation regular hours for appointments with applicants, as
the approval authority deems necessary or appropriate to organize, document
and manage the application intake process. All such rules and regulations must
be in written form and publicly stated to provide all interested parties with prior
notice.
SECTION 2.4. APPROVALS AND DENIALS
(a) Review by Approval Authority. The approval authority shall review a complete
and duly filed application for a small wireless facility and may act on such
application without prior notice or a public hearing.
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(b) Required Findings. The approval authority may approve or conditionally approve a
complete and duly filed application for a small wireless facility permit when the
approval authority finds:
(1) The proposed project meets the definition for a “small wireless facility” as
defined by the FCC;
(2) The proposed facility would be in the most preferred location within 500
feet from the proposed site in any direction or the applicant has
demonstrated with clear and convincing evidence in the written record that
any more-preferred location(s) within 500 feet would be technically
infeasible;
(3) The proposed facility would not be located on a prohibited support
structure identified in this Policy;
(4) The proposed facility would be on the most preferred support structure
within 500 feet from the proposed site in any direction or the applicant has
demonstrated with clear and convincing evidence in the written record that
any more-preferred support structure(s) within 500 feet would be
technically infeasible;
(5) The proposed facility complies with all applicable design standards in this
Policy;
(6) The applicant has demonstrated that the proposed project will be in planned
compliance with all applicable FCC regulations and guidelines for human
exposure to RF emissions.
(c) Conditional Approvals; Denials without Prejudice. Subject to any applicable
federal or California laws, nothing in this Policy is intended to limit the approval
authority's ability to conditionally approve or deny without prejudice any small
wireless facility permit application as may be necessary or appropriate to ensure
compliance with this Policy.
(d) Decision Notices. Within five calendar days after the approval authority acts on a
small wireless facility permit application or before the FCC Shot Clock expires
(whichever occurs first), the approval authority shall notify the applicant by written
notice. If the approval authority denies the application (with or without prejudice),
the written notice must contain the reasons for the decision.
(e) Appeals. Any decision by the approval authority shall be final and not subject to
any administrative appeals.
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SECTION 2.5. STANDARD CONDITIONS OF APPROVAL
(a) General Conditions. In addition to all other conditions adopted by the approval
authority permits issued under this Policy shall be automatically subject to the
conditions in this subsection (a).
(1) Permit Term. This permit will automatically expire 10 years and one day from its
issuance unless California Government Code § 65964(b) authorizes the City to
establish a shorter term for public safety reasons. Any other permits or
approvals issued in connection with any collocation, modification or other
change to this wireless facility, which includes without limitation any permits or
other approvals deemed-granted or deemed-approved under federal or state
law, will not extend this term limit unless expressly provided otherwise in such
permit or approval or required under federal or state law.
(2) Permit Renewal. Within one (1) year before the expiration date of this permit,
the permittee may submit an application for permit renewal. To be eligible for
renewal, the permittee must demonstrate that the subject wireless facility is in
compliance with all the conditions of approval associated with this permit and all
applicable provisions in the Moorpark Municipal Code and this Policy that exist
at the time the decision to renew the permit is rendered. The approval authority
shall have discretion to modify or amend the conditions of approval for permit
renewal on a case-by-case basis as may be necessary or appropriate to ensure
compliance with this Policy. Upon renewal, this permit will automatically expire
10 years and one day from its issuance, except when California
Government Code § 65964(b), as may be amended or superseded in the
future, authorizes the City to establish a shorter term for public safety
reasons.
(3) Post-Installation Certification. Within 60 calendar days after the
permittee commences full, unattended operations of a small wireless
facility approved or deemed-approved, the permittee shall provide the
approval authority with documentation reasonably acceptable to the
approval authority that the small wireless facility has been installed and/or
constructed in strict compliance with the approved construction drawings
and photo simulations. Such documentation shall include without limitation
as-built drawings, and site photographs.
(4) Build-Out Period. This small wireless facility permit will automatically
expire six (6) months from the approval date unless the permittee obtains
all other permits and approvals required to install, construct and/or operate
the approved small wireless facility, which includes without limitation any
permits or approvals required by the any federal, state or local public
agencies with jurisdiction over the subject property, the small wireless
facility or its use. If this build-out period expires, the City will not extend the
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build-out period, but the permittee may resubmit a complete application,
including all application fees, for the same or substantially similar project.
(5) Site Maintenance. The permittee shall keep the site, which includes
without limitation any and all improvements, equipment, structures, access
routes, fences and landscape features, in a neat, clean and safe condition
in accordance with the approved construction drawings and all conditions
in this small wireless facility permit. The permittee shall keep the site area
free from all litter and debris at all times. The permittee, at no cost to the
City, shall remove and remediate any graffiti or other vandalism at the site
within 48 hours after the permittee receives notice or otherwise becomes
aware that such graffiti or other vandalism occurred.
(6) Compliance with Laws. The permittee shall maintain compliance at all
times with all federal, state and local statutes, regulations, orders or
other rules that carry the force of law (“laws”) applicable to the permittee,
the subject property, the small wireless facility or any use or activities in
connection with the use authorized in this small wireless facility permit,
which includes without limitation any laws applicable to human exposure
to RF emissions. The permittee expressly acknowledges and agrees that
this obligation is intended to be broadly construed and that no other
specific requirements in these conditions are intended to reduce, relieve
or otherwise lessen the permittee's obligations to maintain compliance
with all laws. No failure or omission by the City to timely notice, prompt or
enforce compliance with any applicable provision in the Moorpark
Municipal Code, this Policy any permit, any permit condition or any
applicable law or regulation, shall be deemed to relieve, waive or lessen
the permittee's obligation to comply in all respects with all applicable
provisions in the Moorpark Municipal Code, this Policy, any permit, any
permit condition or any applicable law or regulation.
(7) Adverse Impacts on Other Properties. The permittee shall use all
reasonable efforts to avoid any and all unreasonable, undue or
unnecessary adverse impacts on nearby properties that may arise from the
permittee's or its authorized personnel's construction, installation, operation,
modification, maintenance, repair, removal and/or other activities on or
about the site. The permittee shall not perform or cause others to perform
any construction, installation, operation, modification, maintenance, repair,
removal or other work that involves heavy equipment or machines except
during normal construction work hours authorized by the Moorpark
Municipal Code. The restricted work hours in this condition will not prohibit
any work required to prevent an actual, immediate harm to property or
persons, or any work during an emergency declared by the City or other
state or federal government agency or official with authority to declare a
state of emergency within the City. The approval authority may issue a stop
work order for any activities that violates this condition in whole or in part.
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(8) Inspections; Emergencies. The permittee expressly acknowledges and
agrees that the City's officers, officials, staff, agents, contractors or other
designees may enter onto the site and inspect the improvements and
equipment City's officers, officials, staff, agents, contractors or other
designees may, but will not be obligated to, enter onto the site area
without prior notice to support, repair, disable or remove any
improvements or equipment in emergencies or when such improvements
or equipment threatens actual, imminent harm to property or persons. The
permittee, if present, may observe the City's officers, officials, staff or
other designees while any such inspection or emergency access occurs.
(9) Permittee's Contact Information. Within 10 days from the final approval,
the permittee shall furnish the City with accurate and up-to-date contact
information for a person responsible for the small wireless facility, which
includes without limitation such person's full name, title, direct telephone
number, facsimile number, mailing address and email address. The
permittee shall keep such contact information up-to-date at all times and
promptly provide the City with updated contact information if either the
responsible person or such person's contact information changes.
(10) Indemnification. The permittee shall defend, indemnify and hold
harmless the City, City Council and the City's boards, commissions,
agents, officers, officials, employees and volunteers (collectively, the
“indemnitees”) from any and all (i) damages, liabilities, injuries, losses,
costs and expenses and from any and all claims, demands, law suits, writs
and other actions proceedings (“claims”) brought against the indemnitees to
challenge, attack, seek to modify, set aside, void or annul the City's
approval of this permit, and (ii) other claims of any kind or form, whether for
personal injury, death or property damage, that arise from or in connection
with the permittee's or its agents', directors', officers', employees',
contractors', subcontractors', licensees' or customers' acts or omissions in
connection with this small cell permit or the small wireless facility. In the
event the City becomes aware of any claims, the City will use best efforts to
promptly notify the permittee shall reasonably cooperate in the defense.
The permittee expressly acknowledges and agrees that the City shall have
the right to approve, which approval shall not be unreasonably withheld, the
legal counsel providing the City's defense, and the permittee shall promptly
reimburse City for any costs and expenses directly and necessarily incurred
by the City in the course of the defense. The permittee expressly
acknowledges and agrees that the permittee's indemnification obligations
under this condition are a material consideration that motivates the City to
approve this small cell permit, and that such indemnification obligations will
survive the expiration, revocation or other termination of this small cell
permit.
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(11) Performance Bond. Applicable to small wireless facilities within public
rights-of-way. Before the City issues any permits required to commence
construction in connection with this permit, the permittee shall post a
performance bond from a surety and in a form acceptable to the approval
authority in an amount reasonably necessary to cover the cost to remove
the improvements and restore all affected areas based on a written
estimate from a qualified contractor with experience in wireless facilities
removal. The written estimate must include the cost to remove all
equipment and other improvements, which includes without limitation all
antennas, radios, batteries, generators, utilities, cabinets, mounts,
brackets, hardware, cables, wires, conduits, structures, shelters, towers,
poles, footings and foundations, whether above ground or below ground,
constructed or installed in connection with the wireless facility, plus the
cost to completely restore any areas affected by the removal work to a
standard compliant with applicable laws. In establishing or adjusting the
bond amount required under this condition, and in accordance with
California Government Code § 65964(a), the approval authority shall take
into consideration any information provided by the permittee regarding the
cost to remove the wireless facility to a standard compliant with applicable
laws. The performance bond shall expressly survive the duration of the
permit term to the extent required to effectuate a complete removal of the
subject wireless facility in accordance with this condition.
(12) Permit Revocation. The approval authority may recall this approval for
review at any time due to complaints about noncompliance with applicable
laws or any approval conditions attached to this approval after notice and
an opportunity to cure the violation is provided to the permittee. If the
noncompliance thereafter continues, the approval authority may, following
notice and an opportunity for the permittee to be heard (which hearing
may be limited to written submittals), revoke this approval or amend these
conditions as the approval authority deems necessary or appropriate to
correct any such noncompliance.
(13) Record Retention. Applicable to small wireless facilities within public
rights-of-way. The permittee must maintain complete and accurate copies
of all permits and other regulatory approvals issued in connection with the
wireless facility, which includes without limitation this approval, the
approved plans and photo simulations incorporated into this approval, all
conditions associated with this approval and any ministerial permits or
approvals issued in connection with this approval. In the event that the
permittee does not maintain such records as required in this condition,
any ambiguities or uncertainties that would be resolved through an
inspection of the missing records will be construed against the permittee.
The permittee may keep electronic records; provided, however, that hard
copies or electronic records kept in the City's regular files will control over
any conflicts between such City-controlled copies or records and the
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permittee's electronic copies, and complete originals will control over all
other copies in any form.
(14) Abandoned Wireless Facilities. A small wireless facility shall be deemed
abandoned if not operated for any continuous six-month period. Within 90
days after a small wireless facility is abandoned or deemed abandoned,
the permittee shall completely remove the small wireless facility and all
related improvements and shall restore all affected areas to a condition
compliant with all applicable laws, which includes without limitation the
Moorpark Municipal Code. In the event that the permittee does not comply
with the removal and restoration obligations under this condition within
said 90-day period, the City shall have the right (but not the obligation) to
perform such removal and restoration with or without notice, and the
permittee shall be liable for all costs and expenses incurred by the City in
connection with such removal and/or restoration activities.
(15) Landscaping. The permittee shall replace any landscape features
damaged or displaced by the construction, installation, operation,
maintenance or other work performed by the permittee or at the
permittee's direction on or about the site. If any trees are damaged or
displaced, the permittee shall hire and pay for a licensed arborist to select,
plant and maintain replacement landscaping in an appropriate location for
the species. Only workers under the supervision of a licensed arborist
shall be used to install the replacement tree(s). Any replacement tree must
be substantially the same size as the damaged tree unless otherwise
approved by the approval authority. The permittee shall, at all times, be
responsible to maintain any replacement landscape features.
(16) Cost Reimbursement. Applicable to small wireless facilities within public
rights-of-way. The permittee acknowledges and agrees that (i) the
permittee's request for authorization to construct, install and/or operate
the wireless facility will cause the City to incur costs and expenses; (ii) the
permittee shall be responsible to reimburse the City for all costs incurred
in connection with the permit, which includes without limitation costs
related to application review, permit issuance, site inspection and any
other costs reasonably related to or caused by the request for
authorization to construct, install and/or operate the wireless facility; (iii)
any application fees required for the application may not cover all such
reimbursable costs and that the permittee shall have the obligation to
reimburse City for all such costs 10 days after a written demand for
reimbursement and reasonable documentation to support such costs; and
(iv) the City shall have the right to withhold any permits or other approvals
in connection with the wireless facility until and unless any outstanding
costs have been reimbursed to the City by the permittee.
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(17) Future Undergrounding Programs. Applicable to small wireless facilities
within public rights-of-way. Notwithstanding any term remaining on any
small cell permit, if other utilities or communications providers in the public
rights-of-way underground their facilities in the segment of the public
rights-of-way where the permittee's small wireless facility is located, the
permittee must also underground its equipment, except the antennas and
any approved electric meter, at approximately the same time. Accessory
equipment such as radios and computers that require an environmentally
controlled underground vault to function shall not be exempt from this
condition. Small wireless facilities installed on wood utility poles that will
be removed pursuant to the undergrounding program may be reinstalled
on a streetlight that complies with the City's standards and specifications.
Such undergrounding shall occur at the permittee's sole cost and expense
except as may be reimbursed through tariffs approved by the state public
utilities commission for undergrounding costs.
(18) Electric Meter Upgrades. Applicable to small wireless facilities within
public rights-of-way. If the commercial electric utility provider adopts or
changes its rules obviating the need for a separate or ground-mounted
electric meter and enclosure, the permittee on its own initiative and at its
sole cost and expense shall remove the separate or ground-mounted
electric meter and enclosure. Prior to removing the electric meter, the
permittee shall apply for any encroachment and/or other ministerial
permit(s) required to perform the removal. Upon removal, the permittee
shall restore the affected area to its original condition that existed prior to
installation of the equipment.
(19) Rearrangement and Relocation. Applicable to small wireless facilities
within public rights-of-way. The permittee acknowledges that the City, in
its sole discretion and at any time, may: (i) change any street grade, width
or location; (ii) add, remove or otherwise change any improvements in,
on, under or along any street owned by the City or any other public
agency, which includes without limitation any sewers, storm drains,
conduits, pipes, vaults, boxes, cabinets, poles and utility systems for gas,
water, electric or telecommunications; and/or (iii) perform any other work
deemed necessary, useful or desirable by the City (collectively, “City
work”). The City reserves the rights to do any and all City work without
any admission on its part that the City would not have such rights without
the express reservation in this small cell permit. If the Public Works
Director determines that any City work will require the permittee's small
wireless facility located in the public rights-of-way to be rearranged and/or
relocated, the permittee shall, at its sole cost and expense, do or cause to
be done all things necessary to accomplish such rearrangement and/or
relocation. If the permittee fails or refuses to either permanently or
temporarily rearrange and/or relocate the permittee's small wireless
facility within a reasonable time after the Public Works Director's notice,
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Resolution No. 2022-___
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the City may (but will not be obligated to) cause the rearrangement or
relocation to be performed at the permittee's sole cost and expense. The
City may exercise its rights to rearrange or relocate the permittee's small
wireless facility without prior notice to permittee when the Public Works
Director determines that the City work is immediately necessary to protect
public health or safety. The permittee shall reimburse the City for all costs
and expenses in connection with such work within 10 days after a written
demand for reimbursement and reasonable documentation to support
such costs.
SECTION 2.6. LOCATION REQUIREMENTS
(a) Preface to Location Requirements. To better assist applicants and
decisionmakers understand and respond to the community's aesthetic
preferences and values, subsections (b) and (c) set out listed preferences for
locations and support structures to be used in connection with small wireless
facilities in an ordered hierarchy. Applications that involve less-preferred
locations or structures may be approved so long as the applicant demonstrates
that either (1) no more preferred locations or structures exist within 500 feet from
the proposed site; or (2) any more preferred locations or structures within 500
feet from the proposed site would be technically infeasible as supported by clear
and convincing evidence in the written record. Subsection (d) identifies
“prohibited” support structures on which the City shall not approve any small cell
permit application for any competitor or potential competitor.
Locational Preferences. The City prefers small wireless facilities to be installed in
locations, ordered from most preferred to least preferred, as follows:
(1) Any location in a non-residential zone or non-residential Specific Plan
designation;
(2) A location in a residential zone adjacent to property owned in common by
a homeowners’ association where there is not an existing structure
approved for residential use within 250 feet;
(3) Any location in a residential zone 250 feet or more from any structure
approved for a residential use;
(4) Any location in a residential zone 100 feet or more from any structure
approved for a residential use;
(5) If located in a residential zone within 100 feet from a structure approved
for a residential use, as far as is reasonably possible from any structure
approved for a residential use.
(b) Support Structures in Public Rights-of-Way. The City prefers small wireless
facilities to be installed on support structures in the public rights-of-way, ordered
from most preferred to least preferred, as follows:
(1) Existing or replacement streetlight poles;
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(2) New, non-replacement streetlight poles;
(3) New or replacement traffic signal poles;
(4) New, non-replacement poles;
(5) Existing or replacement wood utility poles.
(c) Prohibited Support Structures in Public Rights-of-Way. The City prohibits small
wireless facilities to be installed on the following support structures:
(1) Decorative poles;
(2) Signs;
(3) Any utility pole scheduled for removal or relocation within 12 months from
the time the approval authority acts on the small cell permit application;
(4) New, non-replacement wood poles.
SECTION 2.7. DESIGN STANDARDS
(a) General Standards.
(1) Noise. Noise emitted from small wireless facilities and all accessory
equipment and transmission equipment must comply with all applicable
City noise control standards.
(2) Lights. Small wireless facilities shall not include any lights that would be
visible from publicly accessible areas, except as may be required under
Federal Aviation Administration, FCC, other applicable regulations for
health and safety. All equipment with lights (such as indicator or status
lights) must be installed in locations and within enclosures that mitigate
illumination impacts visible from publicly accessible areas. The provisions
in this subsection (a)(2) shall not be interpreted or applied to prohibit
installations on streetlights or luminaires installed on new or replacement
poles as may be required under this Policy.
(3) Landscape Features. No small wireless facility shall encroach into the
protected zone of a protected oak or landmark tree. Small wireless
facilities shall not displace any other existing landscape features unless:
(A) such displaced landscaping is replaced with native and/or drought-
resistant plants, trees or other landscape features approved by the
approval authority and (B) the applicant submits and adheres to a
landscape maintenance plan. The landscape plan must include existing
vegetation, and vegetation proposed to be removed or trimmed, and the
landscape plan must identify proposed landscaping by species type, size
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and location. Landscaping and landscape maintenance must be
performed in accordance with all applicable provisions of the Moorpark
Municipal Code.
(4) Site Security Measures. Small wireless facilities may incorporate
reasonable and appropriate site security measures, such as locks and
anti-climbing devices, to prevent unauthorized access, theft or vandalism.
The approval authority shall not approve any barbed wire, razor ribbon,
electrified fences or any similarly dangerous security measures. All
exterior surfaces on small wireless facilities shall be constructed from or
coated with graffiti-resistant materials.
(5) Signage; Advertisements. All small wireless facilities must include
signage not to exceed one (1) square feet in sign area that accurately
identifies the site owner/operator, the owner/operator's site name or
identification number and a toll-free number to the owner/operator's
network operations center. Small wireless facilities may not bear any other
signage or advertisements unless expressly approved by the City,
required by law or recommended under FCC, Occupational Safety and
Health Administration or other United States governmental agencies for
compliance with RF emissions regulations.
(6) Compliance with Health and Safety Regulations. All small wireless
facilities shall be designed, constructed, operated and maintained in
compliance with all generally applicable health and safety regulations,
which includes without limitation all applicable regulations for human
exposure to RF emissions and compliance with the federal Americans with
Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.).
(7) Overall Height. Small wireless facilities must comply with the minimum
separation from electrical lines required by applicable safety regulations
(such as CPUC General Order 95 and 128).
(b) Small Wireless Facilities within Public Rights-of-Way.
(1) Antennas.
(A) Concealment. All antennas and associated mounting equipment,
hardware, cables or other connecters must be completely
concealed within an opaque antenna shroud or radome. The
antenna shroud or radome must be painted a flat, non-reflective
color to match the underlying support structure.
(B) Antenna Volume. Each individual antenna may not exceed three
cubic feet in volume.
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(2) Accessory Equipment.
(A) Installation Preferences. All non-antenna accessory equipment
shall be installed in accordance with the following preferences,
ordered from most preferred to least preferred: (i) underground in
any area in which the existing utilities are primarily located
underground; (ii) on the pole or support structure; or (iii) integrated
into the base of the pole or support structure. Applications that
involve lesser-preferred installation locations may be approved so
long as the applicant demonstrates that no more preferred
installation location would be technically feasible as supported by
clear and convincing evidence in the written record.
(B) Undergrounded Accessory Equipment. All undergrounded
accessory equipment must be installed in an environmentally
controlled vault that is load-rated to meet the City's standards and
specifications. Underground vaults located beneath a sidewalk
must be constructed with a slip-resistant cover. Vents for airflow
shall be flush-to-grade when placed within the sidewalk and may
not exceed two feet above grade when placed off the sidewalk.
Applicants shall not be permitted to install an underground vault in
a location that would cause any existing tree to be materially
damaged or displaced. The Noise restrictions apply to underground
equipment as well, especially ventilation/cooling equipment.
(C) Pole-Mounted Accessory Equipment. All pole-mounted accessory
equipment must be installed flush to the pole to minimize the
overall visual profile. If any applicable health and safety regulations
prohibit flush-mounted equipment, the maximum separation
permitted between the accessory equipment and the pole shall be
the minimum separation required by such regulations. All pole-
mounted equipment and required or permitted signage must be
placed and oriented away from adjacent sidewalks and structures.
Pole-mounted equipment may be installed behind street, traffic or
other signs to the extent that the installation complies with
applicable public health and safety regulations. All cables, wires
and other connectors must be routed through conduits within the
pole, and all conduit attachments, cables, wires and other
connectors must be concealed from public view. To the extent that
cables, wires and other connectors cannot be routed through the
pole, applicants shall route them through a single external conduit
or shroud that has been finished to match the underlying support
structure.
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(D) Base-Mounted Accessory Equipment. All base-mounted
accessory equipment must be installed within a shroud, enclosure
or pedestal integrated into the base of the support structure. All
cables, wires and other connectors routed between the antenna
and base-mounted equipment must be concealed from public view.
(E) Ground-Mounted Accessory Equipment. The approval authority
shall not approve any ground-mounted accessory equipment
including, but not limited to, any utility or transmission equipment,
pedestals, cabinets, panels or electric meters.
(F) Accessory Equipment Volume. All accessory equipment
associated with a small wireless facility installed above ground level shall
not cumulatively exceed: (i) nine (9) cubic feet in volume if installed in a
residential district; or (ii) seventeen (17) cubic feet in volume if installed in
a non-residential district. The volume calculation shall include any shroud,
cabinet or other concealment device used in connection with the non-
antenna accessory equipment. The volume calculation shall not include
any equipment or other improvements placed underground.
(3) Streetlights. Applicants that propose to install small wireless facilities on
an existing streetlight must remove and replace the existing streetlight with
one substantially similar to the design(s) for small wireless facilities on
streetlights described in the City's Road Design and Construction
Standards. To mitigate any material changes in the streetlighting patterns,
the replacement pole must: (A) be located as close to the removed pole as
possible; (B) be aligned with the other existing streetlights; and (C) include
a luminaire at substantially the same height and distance from the pole as
the luminaire on the removed pole. All antennas must be installed above
the pole within a single, canister style shroud or radome that tapers to the
pole.
(4) Wood Utility Poles. Applicants that propose to install small wireless
facilities on an existing wood utility pole must install all antennas in a
radome above the pole unless the applicant demonstrates that mounting
the antennas above the pole would be technically infeasible as supported
by clear and convincing evidence in the written record. Side-mounted
antennas on a stand-off bracket or extension arm must be concealed
within a shroud. All cables, wires and other connectors must be concealed
within the radome and stand-off bracket. The maximum horizontal
separation between the antenna and the pole shall be the minimum
separation required by applicable health and safety regulations.
(5) New, Non-Replacement Poles. Applicants that propose to install a
small wireless facility on a new, non-replacement pole must install a new
streetlight substantially similar to the City's standards and specifications
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but designed to accommodate wireless antennas and accessory
equipment located immediately adjacent to the proposed location. If
there are no existing streetlights in the immediate vicinity, the applicant
may install a metal or composite pole capable of concealing all the
accessory equipment either within the pole or within an integrated
enclosure located at the base of the pole. The pole diameter shall not
exceed twelve (12) inches and any base enclosure diameter shall not
exceed sixteen (16) inches. All antennas, whether on a new streetlight
or other new pole, must be installed above the pole within a single,
canister style shroud or radome that tapers to the pole.
(6) Encroachments over Private Property. Small wireless facilities may not
encroach onto or over any private or other property outside the public
rights-of-way without the property owner's express written consent.
(7) Backup Power Sources. Fossil-fuel based backup power sources shall
not be permitted within the public rights-of-way; provided, however, that
connectors or receptacles may be installed for temporary backup power
generators used in an emergency declared by federal, state or local
officials.
(8) Obstructions; Public Safety and Circulation. Small wireless facilities
and any associated equipment or improvements shall not physically
interfere with or impede access to any: (A) worker access to any above-
ground or underground infrastructure for traffic control, streetlight or
public transportation, including without limitation any curb control sign,
parking meter, vehicular traffic sign or signal, pedestrian traffic sign or
signal, barricade reflectors; (B) access to any public transportation
vehicles, shelters, street furniture or other improvements at any public
transportation stop; (C) worker access to above-ground or underground
infrastructure owned or operated by any public or private utility agency;
(D) fire hydrant or water valve; (E) access to any doors, gates, sidewalk
doors, passage doors, stoops or other ingress and egress points to any
building appurtenant to the rights-of-way; (F) access to any fire escape or
(G) above ground improvements must be setback a minimum of 2 feet
from existing or planned sidewalks, trails, curb faces or road surfaces.
(9) Utility Connections. All cables and connectors for telephone, data
backhaul, primary electric and other similar utilities must be routed
underground in conduits large enough to accommodate future collocated
wireless facilities. Undergrounded cables and wires must transition directly
into the pole base without any external doghouse. All cables, wires and
connectors between the underground conduits and the antennas and
other accessory equipment shall be routed through and concealed from
view within: (A) internal risers or conduits if on a concrete, composite or
similar pole; or (B) a cable shroud or conduit mounted as flush to the pole
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as possible if on a wood pole or other pole without internal cable space.
The approval authority shall not approve new overhead utility lines or
service drops merely because compliance with the undergrounding
requirements would increase the project cost.
(10) Spools and Coils. To reduce clutter and deter vandalism, excess fiber
optic or coaxial cables shall not be spooled, coiled or otherwise stored on
the pole outside equipment cabinets or shrouds.
(11) Electric Meters. Small wireless facilities shall use flat-rate electric
service or other method that obviates the need for a separate above-
grade electric meter. If flat-rate service is not available, applicants may
install a shrouded smart meter. The approval authority shall not approve
a separate ground-mounted electric meter pedestal unless required by
the utility company.
(12) Street Trees. To preserve existing landscaping in the public rights-of-way,
all work performed in connection with small wireless facilities shall not
cause any street trees to be trimmed, damaged or displaced. If any street
trees are damaged or displaced, the applicant shall be responsible, at its
sole cost and expense, to plant and maintain replacement trees at the site
for the duration of the permit term.
(13) Lines of Sight. No wireless facility shall be located so as to obstruct
pedestrian or vehicular lines-of-sight.
(c) Small Wireless Facilities Outside of Public Rights-of-Way
(1) Setbacks. Small wireless facilities on private property may not encroach
into any applicable setback for structures in the subject zoning district.
(2) Backup Power Sources. The Director shall not approve any diesel
generators or other similarly noisy or noxious generators in or within 250
feet from any residence; provided, however, the Director may approve
sockets or other connections used for temporary backup generators.
(3) Parking; Access. Any equipment or improvements constructed or
installed in connection with any small wireless facilities must not reduce
any parking spaces below the minimum requirement for the subject
property. Whenever feasible, small wireless facilities must use existing
parking and access rather than construct new parking or access
improvements. Any new parking or access improvements must be the
minimum size necessary to reasonably accommodate the proposed use.
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(4) Freestanding Small Wireless Facilities. All new poles or other
freestanding structures that support small wireless facilities must be made
from a metal or composite material capable of concealing all the
accessory equipment, including cables, mounting brackets, radios, and
utilities, either within the support structure or within an integrated
enclosure located at the base of the support structure. All antennas must
be installed above the pole in a single, canister-style shroud or radome.
The support structure and all transmission equipment must be painted
with flat/neutral colors that match the support structure. The pole diameter
shall not exceed twelve (12) inches and any base enclosure diameter shall
not exceed sixteen (16) inches.
(5) Small Wireless Facilities on Existing Buildings.
(A) All components of building-mounted wireless facilities must be
completely concealed and architecturally integrated into the existing
facade or rooftop features with no visible impacts from any publicly
accessible areas. Examples include, but are not limited to,
antennas and wiring concealed behind existing parapet walls or
facades replaced with RF-transparent material and finished to
mimic the replaced materials.
(B) If the applicant demonstrates with clear and convincing evidence that
integration with existing building features is technically infeasible,
the applicant may propose to conceal the wireless facility within a
new architectural element designed to match or mimic the
architectural details of the building including length, width, depth,
shape, spacing, color, and texture.
(6) Small Wireless Facilities on Existing Lattice Tower Utility Poles
(A) Antennas must be flush-mounted to the side of the pole and
designed to match the color and texture of the pole. If
technologically infeasible to flush-mount an antenna, it may be
mounted on an extension arm that protrudes as little as possible
from the edge of the existing pole provided that the wires are
concealed inside the extension arm. The extension arm shall match
the color of the pole.
(B) Wiring must be concealed in conduit that is flush-mounted to the
pole. The conduit and mounting hardware shall match the color of
the pole.
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(C) All accessory equipment must be placed underground unless
undergrounding would be technically infeasible as supported by
clear and convincing evidence in the written record. Above-ground
accessory equipment mounted on a pole, if any, shall be enclosed
in a cabinet that matches the color and finish of the structures on
which they are mounted. Above-ground cabinets not mounted on a
structure, if any, shall be dark green in color.
(D) No antenna or accessory equipment shall be attached to a utility line,
cable or guy wire.
(7) Small Wireless Facilities on Existing Wood Utility Poles.
(A) All antennas must be installed within a cylindrical shroud (radome)
above the top of the pole unless the applicant demonstrates that
mounting antennas above the pole would be technically infeasible
as supported by clear and convincing evidence in the written
record.
(B) All antennas must be concealed within a shroud (radome) designed
to match the color or the pole, except as described in (8) (E).
(C) No antenna or accessory equipment shall be attached to a utility line,
cable or guy wire.
(D) If it is technically infeasible to mount an antenna above the pole it
may be flush-mounted to the side of the pole. If it is technically
infeasible to flush-mount the antenna to the side of the pole it may
be installed at the top of a stand-off bracket/extension arm that
protrudes as little as possible beyond the side of the pole. Antenna
shrouds on stand-off brackets must be a medium gray color to
blend in with the daytime sky.
(E) Wires must be concealed within the antenna shroud, extension
bracket/extension arm and conduit that is flush-mounted to the
pole. The conduit and mounting hardware shall match the color of
the pole.
(F) All accessory equipment must be placed underground, unless
undergrounding would be technically infeasible as supported by
clear and convincing evidence in the written record. Above ground
accessory equipment mounted on a pole, if any, shall be enclosed
in a cabinet that matches the color and finish of the pole. Above-
ground cabinets not mounted on a structure, if any, shall be dark
green in color.
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(8) Small Wireless Facilities on Existing Water Reservoirs.
(A) Antennas must be mounted as close as possible to the side of the
reservoir.
(B) No antenna or accessory equipment shall project above the top of
the reservoir.
(C) Wires must be concealed within a shroud or conduit that is flush-
mounted to the reservoir. The conduit and mounting hardware shall
match the color of the reservoir.
(D) Antennas and antenna shrouds shall be painted to match the color of
the reservoir.
(E) All accessory equipment must be placed underground unless
undergrounding would be technically infeasible as supported by
clear and convincing evidence in the written record. Above-ground
equipment cabinets, if any, shall be dark green in color.
(F) All water reservoir installations must also be approved by the Water
District having jurisdiction/ownership.
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CITY OF MOORPARK
JANICE S. PARVIN
Mayor
DR. ANTONIO CASTRO
Councilmember
CHRIS ENEGREN
Councilmember
DANIEL GROFF
Councilmember
DAVID POLLOCK
Councilmember
799 Moorpark Avenue, Moorpark, California 93021
Main City Phone Number (805) 517-6200 | Fax (805) 532-2205 | moorpark@moorparkca.gov
May 18, 2022
Honorable Chairwoman Jessica Rosenworcel
Federal Communications Commission
45 L Street NE
Washington, DC 20554
RE: Environmental Health Trust v. FCC, 9 F. 4th 893 (D.C.Cir. 2021)
Dear Chairwoman Rosenworcel:
The City of Moorpark, California writes to encourage the FCC to reopen and complete its
rulemaking process regarding the potential of the thermal effects of radiofrequency (RF)
emissions to cause health impacts other than cancer, regardless of whether reopening the
process ultimately leads or does not lead to new RF emissions standards.
The City understands the appropriateness of having a nationwide safety standard for RF
emissions generated by wireless telecommunications facilities, rather than having a
cumbersome patchwork of inconsistent state and local government standards across the
country. However, the FCC’s current RF emissions standards have not changed since 1996,
when the type of wireless technologies and the ubiquity of wireless devices were dramatically
different than those that exist today.
In 2013, the FCC was right to initiate a formal rulemaking process regarding the adequacy of
the 1996 guidelines. Even if the FCC’s 1996 guidelines prove to continue to be appropriate,
there is tremendous value for the American public to have the peace of mind generated by
reassessing and revalidating the standard.
It was then disappointing when the FCC decided to close its formal rulemaking process in
2019 without either revalidating or updating its RF standards. The City reviewed the
Environmental Health Trust case and ruling with interest, and the City accepts the court’s
conclusion that the FCC had adequately supported its conclusion that such exposure to RF
radiation at levels below the FCC’s existing standards do not cause cancer.
ATTACHMENT 2
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Environmental Health Trust v. FCC, 9 F. 4th 893 (D.C.Cir. 2021)
Page 2
However, the City is cognizant that the court also held that the FCC’s decision to close the
formal rulemaking process with respect to non-cancer related health impacts. At this time,
the FCC must choose between: (1) producing evidence that changes are not needed to
address non-cancer related health impacts; or (2) reopening its formal rulemaking process to
determine if new RF standards are warranted.
The City of Moorpark strongly urges the FCC to reopen its formal rulemaking process,
accept additional public comment on whether changes in the ubiquity of wireless
devices and any other new information warrants revising RF emissions standards, and
either revalidate or revise RF emissions standards as warranted.
The City does not have any preconceived notions about whether current RF emissions
standards will ultimately be revalidated or revised. However, given widespread concern
among many members of the public, even if the current standards are appropriate, there is
tremendous value in affirming them after a thorough and transparent rulemaking process.
Option 2 provides the thoroughness and transparency that will give the American public the
confidence it both seeks and deserves.
On behalf of all Moorpark residents, I appreciate your consideration. If you have any
additional questions on this topic, please contact Brian Chong, Assistant to the City Manager,
at (805) 517-6247.
Sincerely,
Janice S. Parvin
Mayor
cc: City Council
City Manager
Assistant to the City Manager
Senator Dianne Feinstein
Senator Alex Padilla
Congresswoman Julia Brownley
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