Encinitas, CA Wireless Telecom Facilities Code

Original Municipal Code Chapter 9.70 text here.

9.70.010 Title and Purpose.

This chapter shall be known as the Wireless Teleommunications Facilities Ordinance.

The purposes of this chapter are to assure that wireless communications networks are completed with the

• fewest possible facilities,
• in the least visible fashion, and
• with the least disruptive impact

. . . on the neighborhoods and the communities within the City of Encinitas. The regulations set forth in this chapter are adopted to

• serve, protect and promote the public health, safety and welfare, and
• preserve and enhance the aesthetic qualities of the City of Encinitas,

. . . as set forth in the Goals, Objectives and Policies of the General Plan,

while concurrently allowing for the orderly and efficient development of a wireless communications infrastructure in accordance with the Federal Telecommunications Act of 1996 (1996-TCA). (Ord. 2001-11)

9.70.020 Applicability.

A. This chapter applies to all wireless telecommunications facilities existing and proposed to be located within the corporate limits of the City of Encinitas, California, including personal wireless services as defined by the 1996-TCA and licensed by the Federal Communications Commission, including, but not limited to, the types commonly known as cellular, personal communications services (“PCS”), specialized mobile radio (“SMR”), enhanced specialized mobile radio (“ESMR”), paging, land based repeaters for satellite broadcast services, micro-cell antennae and similar systems which exist now or may be developed in the future and exhibit technological characteristics similar to them.

B. Wireless communications facilities proposed to be located in Encinitas may be constructed only pursuant to a permit issued by the City in accordance with this chapter and shall comply with Municipal Code Title 30 “Zoning” and all other applicable laws and regulations.

C. This chapter does not apply to hand held mobile phones, satellite dishes, amateur radio facilities, receiving antennae for AM and FM radio and television, which may be governed by other law, including, but not limited to, Encinitas Municipal Code Chapters

• 28.08,
• 30.16 and
• 30.48.

D. Notwithstanding any other provision of this chapter, all “small wireless facilities” as defined by the FCC in 47 C.F.R. § 1.6002(l):

47 C.F.R. § 1.6002(l)

(l) 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;

   (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).

(m) Structure means a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or comingled with other types of services).

[83 FR 51884, Oct. 15, 2018, as amended at 84 FR 59567, Nov. 5, 2019]

. . . as may be amended or superseded, are subject to a permit as specified in a City Council Policy, which may be adopted, amended and/or repealed by a resolution of the City Council. All small wireless facilities shall comply with the City Council’s policy. If the City Council policy is repealed and not replaced, an application for a small wireless facility shall be processed pursuant to this chapter. (Ord. 2001-11; Ord. 2019-12)

9.70.030 Definitions.

For the purposes of this chapter, the following definitions apply. These definitions shall be adapted to the context for appropriate grammatical tense, number, case and gender.

“Antenna” means a device or system of wires, poles, rods, dishes or other devices of similar function, used for the transmission and/or reception of radio frequency signals for wireless communications, as described in the Telecommunications Act of 1996. It may include an omni-directional antenna (“whip”), a directional antenna (“panel”) and parabolic antenna (“disc”). It does not include the support structure.

“Antenna array” means a set of one or more antennas.

“Applicant/permittee” means the person or firm applying for the permit and also refers to the wireless communication facility service provider.

“Co-location” means the use of a common wireless communications facility or common site by two or more service applicant/permittees, or use by one applicant/permittee of a single site for two or more technologies. It is also called “site sharing.”

“Director” means the Director of Planning and Building, City of Encinitas.

“Facility” means any component of the wireless communication installation including any towers, antennas, antenna arrays, and any structure or device used to contain ancillary equipment for a wireless communications facility, such as cabinets, shelters, additions to existing structures, pedestals, and other devices serving similar purposes. Typically it includes an air conditioning unit, a heating unit, electrical supply, telephone hookup and back-up power supply and may include any service roads or other access accommodations used to service the facility.

“Historic site” means a site or location identified as of “historical significance” in the Resource Management Element of the Encinitas General Plan.

“PCS” means personal communications service, as defined in the TCA and Federal Communications Commission regulations.

“Sensitive habitat area” means an area identified as “high sensitivity” in the Resource Management Element of the Encinitas General Plan.

“TCA” means the Telecommunications Act of 1996.

“Wireless [tele]communications” means any personal wireless services as defined by the TCA and licensed by the Federal Communications Commission, including, but not limited to, the types commonly known as cellular, personal communications services (“PCS”), specialized mobile radio (“SMR”), enhanced specialized mobile radio (“ESMR”), paging, ground based repeaters for satellite radio services, micro-cell antennae and similar systems which exist now or may be developed in the future and exhibit technological characteristics similar to them. (Ord. 2001-11; Ord. 2003-08)

9.70.040 Preferred Locations.

Wireless communications facilities are encouraged to be located in commercial, industrial and public/semi-public zoning districts whenever feasible. Applicant/permittees are encouraged to site facilities on existing nonresidential buildings and existing utility poles or towers. Antenna arrays are encouraged to be located at least 100 feet from elementary schools, middle schools, child day care centers, hospitals, and residential dwellings. Where facilities can be consolidated onto a site and meet the standards of this chapter, such co-location is encouraged. (Ord. 2001-11)

9.70.050 Administrative Design Review Permit Required.

All applications in commercial, industrial and public/semi-public zoning districts for a wireless communications facility with antenna array located 100 feet or greater from elementary schools, middle schools, child day care centers, hospitals, and residential dwellings require an administrative application for an administrative design review, which shall include all items listed in the permit application checklist and all information required by Section 9.70.080. (Ord. 2001-11)

9.70.060 Major Use Permit Required.

Wireless communication facilities proposed in commercial, industrial and public/semi-public zoning districts with antenna array located within 100 feet of elementary schools, middle schools, child day care centers, hospitals, and residential dwellings require a discretionary application for a major use permit and all information required by Section 9.70.080, Supplementary Materials. (Ord. 2001-11)

9.70.070 Major Use Permit Application Permitted.

Wireless communication facilities proposed in certain locations may submit an application for a major use permit, which shall contain all information required by Section 9.70.080, Supplementary Materials. Such application may be granted only if the applicant/permittee submits evidence demonstrating that there is no other feasible alternative to the proposed location. The locations to which this provision applies are:

   A. Residential zoning districts.

   B. Open Space Zoning District.

   C. Floodplain Overlay Zone.

   D. Cultural/Natural Resources Overlay Zone.

   E. Coastal Bluff Overlay Zone.

   F. Historic sites.

   G. Sensitive habitat areas (where not otherwise prohibited). (Ord. 2001-11)

9.70.080 Supplementary Materials.

A. Description of Services. A description of the services the applicant/permittee proposes to offer at the proposed site, including:

   1. A description of the location, type, capacity, field strength or power density, and calculated geographic service area of the proposed antenna or antenna array. In instances of applications that generate public controversy, the City retains the right to retain experts, at the applicant’s expense, to review and assess the technical data.

   2. Documentation that the applicant/permittee has obtained and is in compliance with all applicable licenses, permits or authorizations required by the Federal Communications Commission.

   3. Location of all existing, proposed and anticipated wireless communications facilities in the applicant/permittee’s network located in the City, or within one-half mile of the City’s corporate limit in any direction.

   4. A description of how the proposed facility fits into, and is a necessary part of, the applicant/permittee’s network.

   5. If the proposal does not include co-location, written documentation of all efforts made to co-locate at another site, and a justification for the decision not to co-locate.

   6. In the instance where a facility is proposed within 100 feet of elementary schools, middle schools, child day care centers, hospitals and residential dwellings, the applicant/permittee shall submit a narrative description of alternative sites considered, if any, and include specific reasons these alternative sites were not chosen.

B. Design. All project applications shall adhere to the following criteria:

   1. Location Relative to Elementary Schools, Middle Schools, Child Day Care Centers, Hospitals, and Residential Dwellings. Drawings shall include the location of all elementary schools, middle schools, child day care centers, hospitals, and residential dwellings within 100 feet of the antenna array.

   2. Height. With the exception of installations on pre-existing structures, the installation shall not exceed the height limitations for the zoning district or specific plan.

strong>3. Minimal Visual Impact. All wireless communications applicant/permittees shall utilize all practical means to conceal or minimize the number of facilities and reduce their visual impact, including:

      a. Most Diminutive Technology. Use of the smallest components necessary to provide service that are in use or proposed for use within San Diego County.

      b. Most Efficient Technology. Use of the most efficient components to serve the City of Encinitas. In this context, “most efficient” technology is that which allows the applicant/permittee to use the fewest number of wireless communications installations to serve the City of Encinitas.

c. Stealth Design. The facility shall be designed to visually and operationally blend into the surrounding area, in a manner compatible with the local community character. The facility shall use the most quiet cooling equipment and “whisper” emergency generating apparatus. Artificial “trees” may be permitted in exceptional circumstances but are generally disfavored. When artificial trees are proposed, all paint, materials and colors shall be listed by manufacturer and color number. When an artificial tree is proposed, the applicant/permittee shall provide sufficient samples, models or other information to demonstrate that alternative designs have been considered and rejected, and the reasons for the rejections.

d. Landscaping. In the event portions of the facility will be exposed to public view, and if additional plantings would further minimize the visual impact of the facility, the applicant/permittee shall provide a landscape plan, with an emphasis on native plants. When trees with a trunk width of four inches or more (measured by caliper, four feet above grade) are proposed to be removed or trimmed for the installation or operation of a wireless communications facility, the applicant/permittee shall identify the location of said trees by species and size. In such an instance, trimming shall be minimal and subject to approval by the City, plus, when trees are proposed to be removed, replacement trees shall be shown in the landscape plan to the satisfaction of the Director.

      e. Setbacks. The applicant may propose to locate any wireless communications facility component within a required setback if the proposed location would reduce visual impact, improve safety or otherwise exhibit superior design attributes.

C. Operational Plan. All applications for wireless communications facilities shall include written assurances that the facilities shall be operated in accordance with the following:

1. Security Lighting. Security lighting shall be kept to a minimum in every instance and should only be triggered by a motion detector where practical. The negative effects of security lighting into residential districts shall be minimized.

2. Maintenance. All facilities, landscaping, and related equipment shall be maintained in good working order and free from trash, debris, graffiti and designed to discourage vandalism. Any damaged equipment shall be repaired or replaced within 30 calendar days. Damaged, dead or decaying plant materials shall be removed and replaced within 30 calendar days.

3. Maintenance Hours. Routine maintenance of equipment located in residential zones or within 100 feet of a residential district shall be conducted only during the hours of 8:00 a.m. to 5:00 p.m. weekdays, not including holidays. In other areas, routine maintenance may be conducted at any time. Emergency repairs and maintenance shall be conducted only in the cases of power outages and equipment failure or malfunction. Equipment “change out” and overhaul can occur any time with 30 days notice to the Director to allow notice to property owners and residents within 300 feet of the facility.

4. Monitoring. Once the wireless communications facility is operating, the City may require the applicant/permittee to submit documentation that the facility is operating within the technical standards as described in the application and the Federal Communications Commission permit. Independent field strength or power density measurements shall be provided to the Director within 30 days of written request to the applicant/permittee. Within 30 days before or after the first annual anniversary of when the City issues any permit authorized by this chapter, and thereafter at five year intervals, the applicant/permittee shall submit the following information, in writing, to the Director:

   • a. Confirmation that the facility continues to operate in compliance with all terms and conditions of approval by the City.

   • b. Independent field strength or power density measurements taken within the past 30 days that verify that the facility continues to operate in compliance with all terms and conditions and emissions standards imposed by the Federal Communications Commission.

   • c. Confirmation that there is no equipment available that would enhance the safety, efficiency or visibility of the facility or reduce the size of the facility.

   • d. Confirmation that there are not more appropriate locations available for the facility.

   • e. Confirmation that the facility continues to function as an essential element of the applicant/permittee’s network.

   • f. Documentation of any complaints received by the applicant/permittee since the inception of operations regarding the operation and maintenance of the facility, including the applicant/permittee’s actions to address the complaints.

5. Construction Time, Abandonment and Decommissioning. All wireless communications facilities which receive a permit under this chapter shall be completed and operational within 180 calendar days of the issuance of the permit and all related permits or licenses. The construction time may be extended for an additional 180 calendar days upon a showing of good faith efforts to complete the facility, which shall take into account complications beyond the control of applicant/permittee. If the facility is not completed and operational by the end of the extension period, then the permit shall expire, and the applicant/permittee must reapply for the permit; however, this provision shall not apply when the applicant/permittee demonstrates to the satisfaction of the Director that the operational delay is due entirely to factors beyond the control of the applicant/permittee, in which event the Director may extend the construction time in his or her discretion.

Any facility that ceases operating for more than 90 consecutive days shall be considered abandoned. In such an event the applicant/permittee must either (1) apply for all permits required at the time of expiration to reactivate the operation, or (2) remove all elements of the facility and restore the site. In the event the applicant/permittee fails to apply for permits or perform the removal and restoration within these 90 days, the property owner shall have the facility removed.

(Ord. 2001-11)