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O25831 City Council Meeting: August 28, 2018 Santa Monica, California ORDINANCE NUMBER _2583 (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA REPEALING AND REPLACING IN ITS ENTIRETY THE TEXT OF SANTA MONICA MUNICIPAL CODE CHAPTER 9.32 PERTAINING TO PERSONAL WIRELESS SERVICES FACILITIES WHEREAS, the Telecommunications Act of 1996 (TCA) recognized that cities have authority to regulate personal wireless service facilities, but limited the scope of such regulation; and WHEREAS, the TCA prevents cities from prohibiting or effectively prohibiting these facilities and requires cities to act on applications for these facilities within a reasonable timeframe; and WHEREAS, in 2009, the Federal Communications Commission (FCC) established a reasonable timeframe as sixty (60) days for applications for co-locations (more than one wireless carrier at one site) and one hundred twenty (120) d ays for all other applications; and WHEREAS, Congress passed Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 on February 22, 2012, which established an expedited administrative process for the review of wireless facilities; and Page 2 WHEREAS, Section 6409(a) applies to all “wireless” facilities licensed or authorized by the FCC (e.g., cellular, Wi-Fi, satellite, microwave backhaul, etc.); and WHEREAS, Section 6409(a) generally requires that a state and local government “may not deny, and shall approve” certain applications for minor changes to existing sites that co-locate, remove or replace transmission equipment at an existing wireless tower or base station; and WHEREAS, FCC regulations contain procedural rules for local review that generally preempt subjective land-use regulations, limit permit application content requirements, and modify the reasonable timeframe to provide applicants with a potential “deemed granted” remedy when the State or local government fails to approve or de ny the request within sixty (60) days after submittal (accounting for any tolling periods); and WHEREAS, the City’s existing telecommunications ordinance is obsolete and must be updated to comply with current state and federal laws; and WHEREAS, on June 2016, the City’s Planning Commission adopted a resolution, recommending repeal and replacement of Chapter 9.32 of the Santa Monica Municipal Code to ensure that City regulations are consistent with current state and federal laws; and WHEREAS, the City Council desires to protect and promote public health, safety and welfare, and also balance the benefits that flow from robust, advanced wireless services with the City’s local values, which include without limitation the aesthetic character of the City, its various neighborhoods and community without (1) prohibiting or effectively prohibiting any personal wireless service provider’s ability to provide personal wireless services; (2) prohibiting or effectively prohibiting any personal wireless service Page 3 provider’s ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules or regulations; (3) unreasonably discriminating among providers of functionally equivalent services; (4) denying 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 facilities comply with the Federal Communication Commission’s regulations concerning such emissions; (5) prohibiting any collocation or modification that the City may not deny under federal or state law; or (6) otherwise authorizing the City to preempt any applicable federal or state law or regulation. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Findings: The City Council, having conducted a duly noticed public hearing on August 14, 2018 and, after considering oral and written testimony, makes the following findings with respect to adopting this new wireless communications ordinance (“the Wireless Communications Ordinance”): 1. The Wireless Communications Ordinance is consistent in principle with the General Plan, in that the Ordinance does not substantively affect policy decisions made with the City Council’s adoption of the Zoning Ordinance and represent changes to the Zoning Ordinance to ensure that City regulations are consistent with current State and Federal requirements with respect to the processing of personal wireless service facilities. Page 4 2. The Wireless Communications Ordinance is consistent with the purpose of the Zoning Ordinance to promote the growth of the City in an orderly manner and to promote and protect the public health, safety, and general welfare, in that the Wireless Communications Ordinance will allow for the proper regulation of personal wireless services facilities to promote and protect the public health, safety, and general welfare. Specifically, the Wireless Communications Ordinance will establish updated regulations including a process for the review of personal wireless service facilities, location and design requirements, and conditions of approval. SECTION 2. Santa Monica Municipal Code Chapter 9.32 is hereby repealed in its entirety and fully restated as follows: CHAPTER 9.32 PERSONAL WIRELESS SERVICE FACILITIES 9.32.010 Purpose The purpose of this Chapter is to establish reasonable and uniform standards and procedures for personal wireless service facilities deployment, construction, installation, collocation, modification, operation, relocation and removal on all property other than the public right-of-way within the City’s territorial boundaries, consistent with and to the extent permitted under federal and state law. The standards and procedures contained in this chapter are intended to, and should be applied to, protect and promote public health, safety and welfare, and balance the benefits that flow from robust, advanced wireless services with the City’s local values, which include without limitation the aesthetic character of the City, its various neighborhoods and community. Page 5 This chapter is not intended to, nor shall it be interpreted or applied to: A. prohibit or effectively prohibit any personal wireless service provider’s ability to provide personal wireless services; B. prohibit or effectively prohibit any personal wireless service provider’s ability to provide any interstate or intrastate telecommunications service, subject to any competitively neutral and nondiscriminatory rules or regulation s; C. unreasonably discriminate among providers of functionally equivalent services; D. deny any request for authorization to place, construct or modify personal wireless service facilities based on environmental effects of radio frequency emissions to the extent that such facilities comply with the Federal Communication Commission’s regulations concerning such emissions; E. prohibit any collocation or modification that t he City may not deny under federal or state law; or F. otherwise authorize the City to preempt any applicable federal or state law or regulation. 9.32.020 Definitions The abbreviations, phrases, terms and words shall have the meanings assigned to them in this Section 9.32.020 or, as may be appropriate, in Chapter 9.52 (Terms and Definitions), as may be amended from time to time, unless context indicates otherwise. Undefined phrases, terms or words in this section shall have the meanings assigned to them in 47 U.S.C. § 702, as may be amended from time to time, and, if not defined therein, Page 6 shall have their ordinary meanings. If any definition assigned to any phrase, term or word in this section conflicts with any federal or state-mandated definition, the federal or state- mandated definition shall control. A. “Approval Authority” means the Planning Director, or Planning Commission on appeal. B. “Base Station” has the same definition as provided by the FCC in 47 C.F.R. § 1.40001(b)(1), as may be amended, which defines that term as a structure or equipment at a fixed location that enables [FCC]-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined in [47 C.F.R. § 1.40001(b)(9)] or any equipment associated with a tower. The term includes, but is not limited to, equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. The term includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems and small-cell networks). The term includes any structure other than a tower that, at the time the relevant application is filed with the state or local government under this section, supports or houses equipment described in subsections (1)- (2), codified as 47 C.F.R. § 1.40001(b)(1)(i)-(ii) that has been reviewed and approved under the applicable zoning or siting process, or under another Page 7 state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support. The term does not include any structure that, at the time the relevant application is filed with the State or local government under this section, does not support or house equipment described in subsections (1)-(2), codified as 47 C.F.R. § 1.40001(b)(1)(i)-(ii). C. “Collocation” has the same definition as provided by the FCC in 47 C.F.R. § 1.40001(b)(2), as may be amended, which defines that term as the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes. As an illustration and not a limitation, the FCC’s definition effectively means “to add” and does not necessarily refer to more than one personal wireless service facility installed at a single site. D. “CPCN” means a “Certificate of Public Convenience and Necessity” granted by the CPUC or its duly appointed successor agency pursuant to California Public Utilities Code §§ 1001 et seq., as may be amended. E. “CPUC” means the California Public Utilities Commission established in the California Constitution, Article XII, § 5, or its duly appointed successor agency or agencies. F. “FAA” means the Federal Aviation Administration or its duly appointed successor agency. Page 8 G. “FCC” means the Federal Communications Commission or its duly appointed successor agency. H. “OTARD” means an over-the-air reception device subject to 47 C.F.R. §§ 1.4000 et seq., as may be amended, and which includes without limitation satellite television dishes not greater than one meter in diameter. I. “Personal Wireless Services” means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as may be amended, which defines the term as commercial mobile services, unlicensed wireless services and common carrier wireless exchange access services. J. “Personal Wireless Service Facilities” means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as may be amended, which defines the term as facilities that provide personal wireless services. K. “Public Right-Of-Way” means any public street, alley, sidewalk, or parkway that is owned or granted by easement, operated, or controlled by the City. L. “RF” means radio frequency or electromagnetic waves between 30 kHz and 300 GHz in the electromagnetic spectrum range. M. “Section 6409(a)” means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act, Pub. L. No. 112 -96, 126 Stat. 156 (Feb. 22, 2012), codified as 47 U.S.C. § 1455(a), as may be amended or superseded. N. “Temporary Personal Wireless Service Facilities” means portable wireless communication facilities intended or used to provide personal wireless services on a temporary or emergency basis, such as a large-scale Page 9 special event in which more users than usual gather in a confined location or when a disaster disables permanent personal wireless service facilities. Temporary personal wireless service facilities include, without limitation, cells-on-wheels (“COWs”), sites-on-wheels (“SOWs”), cells-on-light-trucks (“COLTs”) or other similarly portable wireless communication facilities not permanently affixed to the site or land upon which it is located. O. “Tower” has the same definition as provided by the FCC in 47 C.F.R. § 1.40001(b)(9), as may be amended, which defines that term as any structure built for the sole or primary purpose of supporting any [FCC]- licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. Examples include, but are not limited to, monopoles, mono-trees and lattice towers. P. “Transmission Equipment” has the same definition as provided by the FCC in 47 C.F.R. § 1.40001(b)(8), as may be amended, which defines that term as equipment that facilitates transmission for any [FCC]-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, Page 10 broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul. Q. “Wireless” means any FCC-licensed or authorized wireless communication service transmitted over frequencies in the electromagnetic spectrum. 9.32.030 Applicability A. Applicable Facilities. This chapter applies to all personal wireless service facilities within the City and all applications and requests for approval to construct, install, modify, collocate, relocate or otherwise deploy personal wireless service facilities in the City, unless exempted pursuant to Section 9.32.030(b). B. Exempt Facilities. Notwithstanding Section 9.32.030(a), the provisions in this chapter shall not be applicable to: 1. facilities installed in the public right-of-way governed by Chapter 7.70 (Public Right-Of-Way Wireless Communication Facilities) of this Code; 2. amateur radio facilities; 3. OTARD antennas; 4. personal wireless service facilities installed completely indoors and not visible to the public intended to extend signals for personal wireless services in a personal residence or a business (such as a femtocell or indoor distributed antenna system); and Page 11 5. personal wireless service facilities or equipment owned and operated by CPUC-regulated electric companies for use in connection with electrical power generation, transmission and distribution facilities subject to CPUC General Order 131-D. C. Requests for Approval Pursuant to Section 6409(a). Any request to collocate, replace or remove transmission equipment at an existing tower or base station submitted with a written request for approval under Section 6409(a) shall be processed administratively pursuant to the standards and procedures established by the Director, in accordance with federal law. 9.32.040 Permits Required A. Minor Use Permit. A minor use permit, subject to the Planning Director’s prior review and approval in accordance with Chapter 9.41 (Minor Use Permits and Conditional Use Permits), is required for all personal wireless services facilities except for those that are exempt under Section 9.32.030(b) or that are governed by Section 9.32.030(c). B. Other Permits and Regulatory Approvals. In addition to any minor use permit or other permit required under this Chapter, the applicant must obtain all other required permits and other regulatory approvals from the City, and state and federal agencies. Any minor use permit or other permit granted under this chapter shall be subject to the conditions and/or other requirements in any other required permits or other regulatory approvals. Page 12 C. Proprietary Approvals. Nothing in this Chapter shall be deemed to waive any required proprietary approvals for siting of personal wireless service facilities on privately or publicly owned property or improvements. 9.32.050 Permit Applications A. Application Requirement. The City shall not accept, approve, or deny any personal wireless service facility subject to this Chapter except upon a duly filed application pursuant to Section 9.37.020 and any other written rules the Director may publish in any publicly-stated format. B. Minimum Application Content. The materials required under this section are minimum requirements for any application for any personal wireless service facility: 1. Application Form. The Director shall prepare and issue application forms and lists that specify the information that will be required from applicants for projects subject to the provisions of this Ordinance, laws, and applicable court decisions. 2. Application Fee. The City Council may approve by resolution a Municipal Fee Schedule that establishes cost-based fees for permits, appeals, amendments, information materials, penalties, copying, and other such items. These fees may be amended by the City Council. C. Procedures for a Duly Filed Application. The City shall accept applications filed in accordance with the provisions in this Section. Page 13 1. Submittal Appointment. All applications must be filed with the City at a pre-scheduled appointment. Applicants may generally submit one application per appointment but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. Any application received without an appointment, whether delivered in-person or through any other means, will not be deemed as filed. 2. Appointment Scheduling Procedures. A pre-scheduled appointment may be scheduled by contacting the City Planning Division. No application shall be tendered to or accepted by the City during any of the following periods: (i) any time the City Hall is closed to the public; (ii) any legal holiday observed by the City; (iii) the week of Thanksgiving; and (iv) three business days prior to July 4, December 25, and January 1. D. Applications Deemed Withdrawn. To promote efficient review and timely decisions by the City, an application will be automatically deemed withdrawn without prejudice by the applicant when the applicant fails to tender a substantive response to the City within ninety (90) calendar days after the City deems the application incomplete in a written notice to the applicant. The Planning Director may, in the Planning Director’s discretion, grant a written extension for up to an additional thirty (30) calendar days when the applicant delivers to the City a written request prior to the 90th day that shows good cause to grant the extension. Delays due to Page 14 circumstances outside the applicant’s reasonable control shall be considered good cause to grant the extension. E. Departmental Forms, Rules and Other Regulations. The City Council authorizes the Planning Director to develop and publish permit application forms, checklists, informational handouts and other related materials for this chapter. Without further authorization from the City Council, the Planning Director may from time-to-time update and alter the permit application forms, checklists, informational handouts and other relate d materials as the Planning Director deems necessary or appropriate to respond to regulatory, technological or other changes related to this chapter. The City Council further authorizes the Planning Director to establish other reasonable rules and regulations, which may include without limitation regular hours for appointments with applicants, as the Planning Director 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 applicants with prior notice. 9.32.060 Decisions A. Notice 1. General Notice Required for the Application. Public notice as provided in Chapter 9.41 will be required for any minor use permit. The approval authority shall not act on any application for a personal Page 15 wireless service facility unless the public notice required by law has occurred. 2. Deemed-Approval Notice Procedures. Not more than thirty (30) days before the applicable FCC timeframe for review expires, and in addition to the public notice required in Section 9.32.60(a)(1), above, an applicant for a minor use permit must provide a posted notice at the project site that states the project shall be automatically deemed approved pursuant to California Government Code § 65964.1 unless the City approves or denies the application or the applicant tolls the timeframe for review within the next thirty (30) days. The posted notice must be compliant with the provisions in this chapter. The public notice required under this Section 9.32.060(a)(2) shall be deemed given when the applicant delivers written notice to the Planning Director that shows the appropriate notice has been posted at the project site. 3. Decision Notices. In accordance with Section 9.37.070(d), within two (2) working days after the approval authority approves, conditionally approves or denies an application for a personal wireless service facility or before the FCC timeframe for review expires (whichever occurs first), the approval authority shall send a written determination to the applicant and all other parties entitled to receive notice. For any denial notice, the approval authority shall Page 16 include the reasons for the denial either in the notice or as a separate written document. B. Required Findings for Approval. The approval authority shall only approve or conditionally approve a duly filed application for a minor use permit if the approval authority determines that the project, as submitted or modified, conforms to all the following criteria. The inability to make one or more of the findings is grounds for denial of an application. 1. The proposed use is consistent with the General Plan and any applicable specific plan; 2. the physical location or placement of the use on the site is compatible with and relates harmoniously to the surrounding neighborhood or other built and natural environment; 3. the proposed personal wireless service facility complies with all applicable development standards described in Section 9.32.080; 4. the applicant has demonstrated that its proposed facility shall be in compliance with all applicable FCC rules and regulations for human exposure to RF emissions; 5. the applicant has demonstrated a good-faith effort to identify and evaluate more-preferred locations and potentially less-intrusive designs; and 6. the applicant has provided the approval authority with a meaningful comparative analysis that shows all less-intrusive alternative Page 17 locations and designs identified in the administrative record are either technically infeasible or not potentially available . C. Conditional Approvals. The approval authority may impose any reasonable conditions on any minor use permit, related and proportionate to the subject matter in the application, as the approval authority deems necessary or appropriate to promote and ensure conformance with the General Plan, any applicable specific plan and all applicable provisions in the Santa Monica Municipal Code. D. Limited Exception for Personal Wireless Service Facilities. The Planning Director shall not grant any limited exceptions to the requirements of this Chapter unless all of the following findings can be made: 1. The proposed facility qualifies as a “personal wireless service facility” as defined in 47 U.S.C. § 332(c)(7)(C)(ii), as may be amended or superseded; 2. The applicant has provided the Planning Director with a reasonable and clearly defined technical service objective to be achieved by the proposed facility; 3. The applicant has provided the Planning Director with a written statement that contains a detailed and fact-specific explanation as to why the proposed facility cannot be deployed in compliance with the applicable provisions in this Chapter, the Santa Monica Municipal Code, the general plan and/or any specific plan; Page 18 4. The applicant has provided the Planning Director with a meaningful comparative analysis with the factual reasons why all alternative locations and/or designs identified in the administrative record (whether suggested by the applicant, the City, public comments or any other source) are not technically feasible or potentially available to reasonably achieve the applicant’s reasonable and clearly defined technical service objective to be achieved by the proposed facility; and 5. The applicant has demonstrated that the proposed location and design is the least non-compliant configuration that shall reasonably achieve the applicant’s reasonable and clearly defined technical service objective to be achieved by the proposed facility, which includes without limitation a meaningful comparative analysis into multiple smaller or less intrusive facilities dispersed throughout the intended service area. E. Appeals. Any person or entity may appeal a decision by the Planning Director in accordance with the standards and procedures set forth in Section 9.37.130. Environmental effects from RF emissions that comply with all applicable FCC regulations shall not be grounds for an appeal. 9.32.070 Site Location Guidelines A. Prohibited Locations. No personal wireless service facilities shall be located in any residential zone. Page 19 B. Exception to Prohibited Locations. Personal wireless service facilities may be located in residential zones only on parcels without any residential uses as of June 6, 2018. 9.32.080 Design Standards A. Generally Applicable Development Standards. All new personal wireless service facilities and all collocations or modifications to existing personal wireless service facilities not subject to Section 6409(a) must conform to the generally applicable development standards in this Section 9.32.080(a) in order to mitigate impacts on adjacent properties. 1. Concealment. Personal wireless service facilities must incorporate concealment elements, measures and techniques that blend the equipment and other improvements into the natural and/or built environment in a manner consistent and/or compatible with the uses germane to the underlying zoning district and existing in the immediate vicinity. 2. Overall Height. Ground-mounted towers may not exceed the applicable height limit for structures in the applicable zoning district. Rooftop personal wireless service facilities may not extend beyond 15 feet above the roofline. 3. Setbacks. Personal wireless service facilities may not encroach into any applicable setback for structures in the subject zoning district. Page 20 4. Noise. Personal wireless service facilities and all accessory equipment and transmission equipment must comply with all noise regulations, which includes without limitation Chapter 4.12 (Noise), and shall not exceed, either individually or cumulatively, the applicable ambient noise limit in the subject zoning district. The approval authority may require the applicant to incorporate appropriate noise-baffling materials and/or strategies whenever necessary to avoid any ambient noise from equipment reasonably likely to exceed the applicable limit. 5. Landscaping. Personal wireless service facilities must include landscape features when proposed in a landscaped area. The approval authority may require additional landscape features to screen the facility from public view, avoid or mitigate potential adverse impacts on adjacent properties or otherwise enhance the concealment required under this chapter. The permittee shall be responsible for maintenance of and replacement of all landscaping. 6. Security Measures. Personal wireless service facilities may incorporate reasonable and appropriate security measures, such as fences, walls and anti-climbing devices, to prevent unauthorized access, theft and vandalism. Security measures must be designed to enhance concealment to the maximum extent possible. The approval authority may require additional concealment elements as the approval authority finds necessary to blend the security Page 21 measures and other improvements into the natural and/or built environment. The approval authority shall not approve barbed wire, razor ribbon, electrified fences or any similar security measures that may cause serious injury or death. 7. Backup Power Sources. The approval authority may approve permanent backup power sources and/or generators on a case -by- case basis. The City strongly favors non- and low-polluting backup power sources such as fuel cells and natural gas generators, and strongly disfavors backup power sources that pollute such as diesel and gasoline generators. The approval authority shall not approve any diesel or gasoline generators or other similarly noisy or noxious generators in or within 1,000 feet from any residence, park, or beach; provided, however, the approval authority may approve sockets or other connections used for temporary backup generators. 8. Lights. Personal wireless service facilities may not include exterior lights other than (i) as may be required under FAA, FCC or other applicable governmental regulations; and (ii) timed or motion - sensitive lights for security and/or worker safety. All exterior lights permitted or required to be installed must be installed in locations and within enclosures that avoids illumination impacts on other properties to the maximum extent feasible. FAA or FCC required aircraft warning lighting shall to the maximum extent feasible use Page 22 lighting shielded from view from any human -occupied structure within the City. 9. Signage; Advertisements. All personal wireless service facilities must include signage that continuously and accurately identifies the equipment owner/operator, the owner/operator’s site name or identification number, as well as a local or toll-free number to the owner/operator’s network operations center. Personal wireless service facilities must not bear any other signage or advertisements unless expressly approved by the City, required by law or recommended by the FCC, CPUC, or other United States or State governmental agencies. 10. Future Collocations. All personal wireless service facilities must be designed and sited in a manner that contemplates future collocations and shall facilitate additional equipment to be integrated into the proposed facility or associated structures with no or negligible visual changes to its outward appearance to the greatest extent feasible. 11. Utilities. All cables and connectors for telephone, primary electric and other similar utility services must be routed underground to the extent feasible in conduits large enough to accommodate future collocated facilities. 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. Page 23 12. Compliance with Laws. All personal wireless service facilities must be designed and sited in compliance with all applicable federal, state and local laws, regulations, rules, restrictions and conditions, which includes without limitation the California Building Standards Code, General Plan and any specific plan, the Santa Monica Municipal Code and any conditions or restrictions in any permit or other governmental approval issued by any public agency with jurisdiction over the project. B. Freestanding Facilities. 1. Uncamouflaged Towers Prohibited. No new monopole or similar uncamouflaged or minimally-camouflaged tower shall be permitted. All freestanding towers must be designed to maximally blend in to its surroundings and camouflage the personal wireless service facilities attached thereto. 2. Tower-Mounted Equipment. All tower-mounted equipment must be mounted as close to the vertical support structure as possible to reduce its visual profile. Applicants must mount non-antenna, tower- mounted equipment (including, but not limited to, remote radi o units/heads, surge suppressors and utility demarcation boxes) directly behind the antennas to the maximum extent feasible. All tower-mounted equipment, cables and hardware must be painted with flat colors and enclosed in camouflage elements subject to the approval authority’s prior approval. Page 24 3. Ground-Mounted Equipment and Shelters. All ground-mounted equipment must be concealed within an existing or new structure, opaque fences or other enclosures. The approval authority may require additional concealment elements as the approval authority finds necessary to blend the ground-mounted equipment and other improvements into the natural and/or built environment. C. Building-Mounted Facilities. 1. Preferred Concealment Techniques. All applicants should, to the maximum extent feasible, propose new non-tower facilities that are completely concealed and architecturally integrated into the existing facade or rooftop features with no visible impacts from any publicly accessible areas at ground level (examples include, but are not limited to, antennas behind existing parapet walls or facades replaced with RF-transparent material and finished to match the replaced materials). Alternatively, when integration with existing building features is not feasible, the applicant should propose completely concealed new structures or appurtenances designed to be compatible with the support structure’s original architecture and proportions (examples include, but are not limited to, cupolas, steeples, chimneys and water tanks). 2. Façade-Mounted Equipment. All façade-mounted equipment must be concealed behind screen walls and mounted as flush to the facade as practicable and painted to match the facade. The approval Page 25 authority may not approve “pop-out” screen boxes or cable trays unless the design is architecturally consistent with the original building or support structure. 3. Rooftop-Mounted Equipment. All rooftop-mounted equipment must be screened from public view with concealment measures that match the underlying structure in proportion, quality, architectural style and finish. The approval authority may approve unscreened rooftop equipment only when it expressly finds that such equipment is effectively concealed from public view from any ground level location and from any other structure due to its low height and/or setback from the roofline. 4. Associated Ground-Mounted Equipment. Outdoor ground- mounted equipment associated with building-mounted facilities must be avoided whenever feasible. In publicly visible or accessible locations, applicants must conceal outdoor ground-mounted equipment with opaque fences or landscape features that mimic the adjacent structure(s) such as dumpster corrals and other accessory structures. 9.32.090 Standard Conditions of Approval In addition to all other conditions adopted by the approval authority, all minor use permits, whether approved by the approval authority or deemed approved by the operation of law, shall be automatically subject to the conditions set forth below: Page 26 A. Approved Plans. Before the permittee submits any applications to the Building and Safety Division, the permittee must incorporate the permit, all conditions associated with the permit and the approved photo simulations into the project plans (the “Approved Plans”). The permittee must construct, install and operate the facility in strict compliance with the Approved Plans. Any alterations, modifications or other changes to the Approved Plans, whether requested by the permittee or required by other departments or public agencies with jurisdiction over the facility, must be submitted in a written request subject to the Planning Director’s prior review and approval, who may refer the request to the original approval authority if the Planning Director finds that the requested alteration, modification or other change implicates a significant or substantial land -use concern. B. Build-out Period. In accordance with Section 9.37.090 Expiration and Extension, the permit shall automatically expire two years from the issuance date unless the permittee obtains all other permits and approvals required to install, construct and/or operate the approved 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 facility or its use. The Planning Director may grant one written extension to a date certain when the permittee shows good cause to extend the limitations period in a written request for an extension received by the City prior to the automatic expiration date in this condition. Page 27 C. Maintenance Obligations; Vandalism. The permittee shall at all times 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 Plans and all conditions in the permit. The permittee shall keep the site area free from all litter and debris at all times. The permittee, at no co st 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 through its own staff including contractors that such graffiti or other vandalism occurred. D. 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 facility or any use or activities in connection with the use authorized in the permit. 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. E. Inspections; Emergencies. The permittee expressly acknowledges and agrees that the City or its designee may enter onto the site and inspect the improvements and equipment upon reasonable prior notice to the permittee; provided, however, that the City or its designee may, but shall Page 28 not be obligated to, enter onto the site area without prior n otice 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 shall be permitted to supervise the City or its designee while such inspection or emergency access occurs. F. Contact Information. The permittee shall furnish the City Planning Division with accurate and up-to-date contact information for a person responsible for the 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. G. Indemnification. The permittee and, if applicable, the property owner upon which the facility is installed shall defend, indemnify and hold harmless the City, its agents, officers, officials, employees and volunteers from any and all (1) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs and other actions or proceedings (“Claims”) brought against the City or its agents, officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside, void or annul the City’s approval of any permit or regulatory approval authorized by City under this Chapter 9.32, and (2) other Claims 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 Page 29 omissions in connection with the permit or the facility; provided, however, the permittee and, if applicable, the property owner upon which the facility is installed, shall not defend, indemnify, or hold harmless the City, agents, officers, officials, employees and volunteers due to the negligence, gross negligence, or willful misconduct of the City, agents, officers, officials, employees, and volunteers. In the event the City becomes aware any Claims, the City shall use best efforts to promptly notify the permittee and the private property owner and 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 property owner and/or permittee (as applicable) 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 the permit, and that such indemnification obligations shall survive the expiration or revocation of the permit. H. Revocation/Modification of Permit. The original approval authority may revoke or modify the permit at any time based upon noncompliance with the Santa Monica Municipal Code or any approval conditions. In accordance with Section 9.37.120 Revocation/Modification of Permits, the approval authority may revoke the permit or amend these conditions as the approval Page 30 authority deems necessary or appropriate to correct any such noncompliance. I. Duty to Retain Records. The permittee must maintain complete and accurate copies of all permits and other regulatory approvals (the records) issued in connection with the personal wireless service facility, which includes without limitation this approval, the approved plans and p hoto 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 or fails to produce true and complete copies of such records within a reasonable time after a written request from the City, any ambiguities or uncertainties that would be resolved through an inspection of the missing records shall be construed against the permittee. 9.32.100 Temporary Personal Wireless Service Facilities A. Temporary Personal Wireless Service Facilities - Non-Emergencies. The Planning Director may approve or conditionally approve a temporary use permit for a temporary personal wireless service facility for a period between four (4) days and forty-five (45) days, inclusive, in accordance with Chapter 9.44 only when the Planning Director finds all the following: 1. The proposed temporary personal wireless service facility shall not exceed 50 feet in overall height above ground level; Page 31 2. the proposed temporary personal wireless service facility complies with all setback requirements applicable to the proposed location; 3. the proposed temporary personal wireless service facility shall not involve any excavation or ground disturbance; 4. the proposed temporary personal wireless service facility shall be compliant with all generally applicable public health and safety laws and regulations, which includes without limitation maximum permissible exposure limits for human exposure to RF emissions established by the FCC; 5. the proposed temporary personal wireless service facility shall not create any nuisance or violate any noise limits applicable to the proposed location; 6. the proposed temporary personal wireless service facility shall be identified with a sign that clearly identifies the site operator and contains a working telephone number to a live person who can exert power-down control over the antennas; 7. the proposed wireless temporary personal wireless service facility shall be removed within five (5) days after the expiration of the temporary use permit; 8. the applicant has not received any other temporary use permit for substantially the same location within the previous 90 calendar days; and Page 32 9. the applicant has not sought approval for any permanent personal wireless service facility in substantially the same location within the previous 365 days. B. Temporary Personal Wireless Service Facilities - Emergencies. 1. Temporary personal wireless service facilities may be placed and operated within the City for more than three (3) days without a temporary use permit only when a duly-authorized federal, state, county or City official declares an emergency within the City, or a region that includes the City in whole or in part at the location of the temporary personal wireless service facility. 2. By placing the temporary personal wireless service facility pursuant to this Section 9.32.100(b), the entity or person placing the temporary personal wireless service facility agrees to and shall defend, indemnify and hold harmless the City, its agents, officers, officials, employees and volunteers from any and all (1) damages, liabilities, injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs and other actions or proceedings (“Claims”) brought against the City or its agents, officers, officials, employees or volunteers for any and all Claims of any nature related to the installation, use, non-use, occupancy, removal, and disposal of the temporary personal wireless service facility; provided, however, the permittee and, if applicable, the property owner upon which the facility is installed, shall not defend, indemnify, or hold harmless the Page 33 City, agents, officers, officials, employees and volunteers due to the negligence, gross negligence, or willful misconduct of the City, agents, officers, officials, employees, and volunteers. 3. The temporary personal wireless service facility shall prominently display upon it a legible notice identifying the entity responsible for the placement and operation of the temporary personal wireless service facility. 4. Any temporary personal wireless service facilities placed pursuant to this Section 9.32.100(b) must be removed within (a) five (5) days after the date the emergency is lifted or (b) upon three (3) days written notice from the Planning Director or City Manager or (c) within one (1) hour if required for public safety reasons by City police or fire officials (whichever occurs first). In the event that the temporary facility is not removed as required in this Section 9.32.100(b), the City may at its sole election may remove and store or remove and dispose of the temporary facility at the sole cost and risk of the person or entity placing the temporary facility. C. The Planning Director’s decision pursuant to Subsection A, above, shall be final and not subject to further administrative appeal. Page 34 9.32.110 Compliance Obligations An applicant or permittee shall not be relieved of its obligation to comply with every applicable provision in the Santa Monica Municipal Code, any permit, any permit condition or any applicable law or regulation by reason of any failure by the City to timely notice, prompt or enforce compliance by the applicant or permittee. SECTION 3. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 4. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. Page 35 SECTION 5. The Mayor shall sign, and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within fifteen (15) days after its adoption. This Ordinance shall become effective thirty (30) days from its adoption. APPROVED AS TO FORM: _________________________ LANE DILG City Attorney Approved and adopted this 28th day of August, 2018. _____________________________ T e d W i n t e r e r , M a y o r State of California ) County of Los Angeles ) ss. City of Santa Monica ) I, Denise Anderson-Warren, City Clerk of the City of Santa Monica, do hereby certify that the foregoing Ordinance No. 2583 (CCS) had its introduction on August 14, 2018, and was adopted at the Santa Monica City Council meeting held on August 28, 2018, by the following vote: AYES: Councilmembers Himmelrich, McKeown, O’Connor, O’Day, Vazquez, Mayor Winterer NOES: None ABSENT: Mayor Pro Tem Davis ATTEST: _____________________________________ _________________ Denise Anderson-Warren, City Clerk Date A summary of Ordinance No. 2583 (CCS) was duly published pursuant to California Government Code Section 40806. Ted Winterer (Sep 20, 2018) Ted Winterer Sep 21, 2018