HomeMy WebLinkAboutCD Small Wireless Facilities Urgency Ordinance____________________________________________________________________________________
FOR CITY CLERK ONLY
Council Meeting: 12/17/2018
Disposition: Adopted Urgency Ordinance No. 1967 & Resolution No. 14620A
Agenda Item No: 6.c
Meeting Date: December 17, 2018
SAN RAFAEL CITY COUNCIL AGENDA REPORT
Department: Community Development Department
Prepared by: Paul A. Jensen (PJ/AG/RB/LG),
Community Development Director
City Manager Approval: _______________
TOPIC: REGULATIONS AND PROCEDURES FOR SMALL WIRELESS FACILITIES
SUBJECT: URGENCY ORDINANCE AMENDING THE SAN RAFAEL MUNICIPAL CODE TITLE 14
(ZONING) AND ACCOMPAN YING POLICY RESOLUTION TO ESTABLISH
PROVISIONS AND PROCEDURES FOR REGULATING THE PLACEMENT OF SMALL
WIRELESS FACILITIES
RECOMMENDATION:
Conduct a public hearing and adopt an urgency ordinance and policy resolution establishing application
and review procedures for installation of small wireless facilities.
BACKGROUND:
On September 26, 2018, the Federal Communications Commission (FCC) adopted a Declaratory Ruling
and Third Report and Order geared toward speeding up the deployment of small wireless facilities in the
public right-of-way (hereafter, the “FCC ruling”). The FCC ruling, which will go into effect January 14,
2019, sets forth limitations on state and local government regulation of small wireless facilities that are
placed on existing or new utility poles and street light standards located in the public right-of-way and
private property. The FCC ruling clarifies and more specifically restricts the authority of state and local
governments to regulate small wireless facilities in the public right-of-way. This ruling is significant in that
there are several nuances in small “cell” wireless facilities technology and application, which set them
apart from other wireless communication facilities. On December 10, 2018, the FCC denied local
governments’ motion for a “stay” (essentially a freeze) on the regulations but ruled that aesthetic
restrictions would not go into effect until April 14, 2019. Therefore, it remains prudent for the City to
address this matter as soon as possible.
On December 3, 2018, City Council was provided a comprehensive report covering the FCC ruling, the
City’s current regulations for wireless communication facilities and recommended approaches for
addressing small wireless facilities. A presentation was made by Michael Johnston, attorney (Telecom
Law Firm) who summarized the implications of the FCC ruling and responded to detailed questions. In
addition, staff presented possible text amendments to the San Rafael Municipal Code (“SRMC”) (Title
14, Zoning) and a draft policy resolution to establish regulations and procedures for small wireless
facilities.
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Forty (40) community members provided public comment on this topic. Following public comment and
deliberation, the City Council directed staff to meet with the Council’s subcommittee on small wireless
facilities to: 1) evaluate possible changes to the draft policy resolution; and 2) return to the Council with
an urgency ordinance and a final, draft policy resolution. As part of this action, the City Council directed
staff to evaluate the public comments and review the following information in considering further changes
to the draft policy resolution:
•The Town of San Anselmo Wireless Facilities Ordinance;
•The Town of Burlington (Massachusetts) Policy on Small Wireless Facilities Installation; and
•23-point list of recommendations presented to the Town of Fairfax from “5G -Free Marin.” for the
City to consider in establishing regulations for small wireless facilities (Attachment 3).
On December 5, the City Council subcommittee (Councilmembers Colin and McCullough) met with City
staff and attorney Michael Johnston to discuss the above documents and possible changes to the draft
policy resolution. The subcommittee discussed the pros and cons of numerous, additional standards as
well as the recommendations presented by members of the public. This extra time also allowed staff to
work with Michael Johnston to refine the policy resolution language to include a greater level of detail in
the definitions, application submittal requirements, and overall review process. As a result, changes have
been made to the draft policy resolution to include the following:
•A re-drafting of the policy language;
•Establishing a 500-foot setback from residential districts;
•Establishing a 500-foot separation between small wireless facilities;
•Requiring a public notice to properties within 500 feet of any proposed facility; and
•Requiring an expanded review process for applications that do not meet the setback and
separation requirements.
The subcommittee also recognized that the policy resolution would serve as a measure for evaluating
applications, but that there is an expectation that this document may need to change over time . The
ability to make changes to the policy resolution is needed for several reasons:
•Litigation has been filed challenging the FCC ruling. It is unclear whether the courts will issue a
“stay” of the FCC ruling pending a final decision by the courts on the litigation. If there is a stay,
the City will likely also put a hold on issuing approvals for small wireless facilities.
•As staff becomes more familiar with processing applications for small wireless facilities, the
procedures and regulations presented in the policy resolution may need to be amended to ensure
an effective review process and standards. If changes are necessary, staff will likely provide the
City Council with an update and possible amendments to the policy resolution that address any
challenges experienced in the review process that will be established as part of the adopted
policy.
ANALYSIS:
Staff has prepared an urgency ordinance and special procedures and regulations (including objective
aesthetic standards) covered in a draft policy resolution for administering such facilities. These
documents are intended to assure the City is prepared to evaluate new applications for small wireless
facilities when the FCC ruling goes into effect. The urgency ordinance and policy resolution are attached
(Attachments 1 and 2). The procedures and regulations have been updated to: 1) consider the public
comments; 2) include some of the 23-point recommendations presented to the Town of Fairfax by “5G-
Free Marin;” 3) address the direction from the City Council received at the December 3rd meeting; 4) and
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incorporate the recommendations of the City Council subcommittee meeting held on December 5. The
following is a summary of the draft urgency ordinance and resolution (see Attachments 1 & 2):
Urgency Ordinance
Ordinarily, to adopt an ordinance the City Council must approve introduction of the ordinance at a first
meeting, and then finally adopt it at a second meeting not less than 5 days later. Additionally , once
adopted, the ordinance normally will not become effective for 30 days. Using that procedure to adopt the
attached ordinance would mean that it would not become effective until late February. Staff has
concluded that there are important reasons for the City to have local small wireless facility regulations in
place prior to the January 14, 2019 effective date of the FCC ruling,
Government Code Section 36937(b) authorizes a city council to adopt at a single meeting an “urgency”
ordinance that will take effect immediately, in cases where the council makes findings that it is required
“for the immediate preservation of the public peace, health or safety” and the ordinance is passed by a
four-fifths (4/5) vote of the city council. Staff is recommending that the Council adopt the attached
ordinance as an urgency ordinance pursuant to this statute. Therefore, the proposed ordinance contains
findings of fact setting forth why an urgency ordinance is necessary, and if adopted by a four-fifths (4/5)
vote of the City Council, the ordinance will go into effect immediately.
The urgency ordinance would make the following amendments to the City’s Municipal Code:
1.Amend SRMC Title 14 (Zoning), Section 14.03.030 (Definitions) to add a new definition for “small
wireless facility.” This definition would mirror the definition established by the FCC.
2.Amend SRMC Section 14.16.360 (Wireless Communication Facilities) to specifically include small
wireless facilities as part of the mix of wireless communication facilities.
3.Add new SRMC Section 14.16.361 (Small Wireless Communication Facilities). The text for this
new section acknowledges that small wireless facilities in the public right-of-way are unique and
subject to additional provisions and standards adopted by separate resolution of the City Council
(policy resolution).
Policy Resolution
The proposed policy resolution has been significantly revised from the initial draft to set forth policies,
procedures, standards and limitations for small wireless facilities to include the following key sections:
1.Definitions- includes definitions used in the application and review process. For clarity, this
section provides FCC-mandated definitions specifically related to small wireless facilities.
2.Required permits- requires a “Small Cell Permit” for all small wireless facilities. Although initially
recommended by staff, an Administrative Design Review has been eliminated because the
required findings for this permit would introduce subjectivity that is expressly preempted by the
FCC ruling. In place of Administrative Design Review, all requests would be evaluated based on
a set of objective criteria outlined in the policy resolution, and decisions would be based on a list
of required findings that require confirmation of compliance with the criteria.
3.Application and Review Procedures Requirements– establishes the application submittal
requirements and process for efficient review of applications including procedures for reviewing
batched or grouped applications. While staff initially recommended procedures identifying the
possibility of accepting a “batched” application of 10 similar facilities to be submitted at one time,
this number has been reduced to allow review of 5 similar facilities to be submitted as part of one
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batched application. However, even with this change, the FCC ruling does not allow the local
jurisdiction to set limits on precluding simultaneous filings of multiple batched applications.
4. Public Notice Process- establishes a public noticing process. W hile a public noticing process was
not previously proposed, staff believes that such a noticing process would be a necessary form
of disclosure to the community about impending, nearby installation and construction work. This
noticing requirement is similar to the community outreach that is sometimes done for certain types
of City improvement projects. The process requires a mailed public notice to all properties and
record owners within 500 feet of the proposed location (500-foot radius measured laterally from
the right-of-way). The notice would provide a 10-day noticing period for written public comment,
which is intended to assist staff in its determination on whether the proposed facility would comply
with all the applicable standards in the policy. It should be noted that this noticing process would
not include a public hearing. Considering the shot clock deadlines, even factoring in a staff-level
Zoning Administrator hearing with the processing steps would mean that the City would likely be
unable to comply with these deadlines.
5. Appeals Process- requires appeals be directly referred to the City Council. A direct appeal to the
City Council is necessary given the shot clock time limits imposed by the FCC. The policy
language limits City Council appeals of individual permit applications to whether the application
complies with the required findings for approval in Section 7(c) – design standards, location,
support structure type, etc. Please note that the policy is drafted so that no appeals will be
permitted to the extent that the appeal is based on the effects from RFR emissions that comply
with all applicable FCC regulations. As discussed in the December 3, 2018 staff report, the recent
FCC ruling made no changes in the 1996 Telecommunications Act related to a local jurisdiction’s
ability to regulate or enforce radio frequency (RFR) emission limits on small wireless facilities or
any other wireless communication facility. Therefore, the City has no authority to approve or deny
a small wireless facility application on the basis of health risks unless such facility exceeds the
FCC standards for public exposure.
6. Most Preferred, Less Preferred and Least Preferred Locations- establishes a list of most preferred
(commercial/industrial/public-quasi-public) versus least preferred locations (residential). The
policy retains the proposed provision to limit installation of small wireless facilities in parks/open
space and residential districts (least preferred locations) on or along major or minor arterial roads
(as defined by General Plan 2020 Exhibit 22); The policy authorizes the City to deny any
application in a residential zoning district, when the small wireless facility is not located along an
arterial or minor arterial road, unless the applicant can show by clear and convincing evidence
that a more-preferred location is not technically feasible.
The policy states preference for facilities to be installed on existing streetlights to enhance
concealment opportunities. Wood utility poles are subject to physical limitations (wood is solid,
and cabling cannot be routed through the pole) and additional CPUC safety regulations (minimum
separation distances from the pole and from communications and electrified lines) that make
blending and camouflaging more difficult.
The policy statement applies to small wireless facilities in the public right-of-way and on private
property as the FCC ruling applies to both locations.
7. Setback/buffer requirements- establishes a 500-foot buffer from residential districts. This policy
authorizes the City to deny an application that does not meet this requirement. However, if an
applicant demonstrates with clear and convincing evidence in the written record that any other
more preferred location is technically infeasible, the setback/buffer is waived.
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8. Separation requirements – requires a 500-foot separation between poles for new installation. This
number was increased from the 300 feet that previously recommended. If installed on existing
utility poles or light standards, waive the separation requirement if the antenna and boxes are
concealed in a canister or are flush-mounted on the pole.
9. Dimensional and stealth design requirements- establishes design requirements that are similar to
what was previously required for antennas and recommendations for undergrounding of
associated structures. However, the language now provides opportunities for pole mounting of
associated equipment when it can be appropriately integrated into a shroud or pedestal at the
base of the pole. The draft policy sets forth similar design standards for each element of the
proposed facility and provides volumetric requirements for each piece of equipment that is more
consistent with local preferences – maximum of 17 cubic feet for accessory equipment rather than
the FCC definition of 28 cubic feet. Please note that it is staff’s intent to further assess the design
standards and return to the City Council in the near future with additional or more specific
standards.
10. Conditions of Approval- provides standard conditions of approval that automatically attach to any
permit and govern the operation and maintenance standards for each small wireless facility. One
standard condition requires the permittee to cooperate with all the City’s efforts to maintain
compliance with the FCC’s RF exposure rules and guidelines.
11. Height limits- a height standard requiring a clearance of equipment installation of a minimum of
10 feet from grade and not to exceed 10 feet above the existing pole.
12. Signage- limits signage to only signage required by the FCC.
13. Shot-clock/processing deadlines- establishes review and action timelines consistent with the FCC
ruling. The FCC ruling for small wireless facilities requires that an application action must be
made within 60 days of application filing for co-locations and 90 days of application filing for new
structures. Staff is concerned that compliance with the shot-clock deadlines will be challenging.
While the application process has been crafted to incorporate a direct appeal of action to the City
Council, the prescribed and required steps in the application review process (application review
for completeness, referrals, report writing, notifications, public meeting scheduling, public hearing)
has the potential to extend beyond these FCC deadlines. Considering the processing steps, staff
cannot guarantee that the shot-clock deadlines will be met with every application.
14. Fees- As discussed above, the FCC ruling sets limits on the fees that can be charged on small
wireless facility applications in the public right-of-way. An assessment of the City’s current fees
relative to their application for small wireless facilities in the public right-of-way is discussed under
the Fiscal Impact section of this report.
With adoption of an urgency ordinance and associated policy resolution, the City will be prepared to
process applications for small wireless facilities when the FCC ruling becomes effective.
Environmental Review
Pursuant to California Environmental Quality Act (“CEQA”) Guidelines § 15378 and California Public
Resources Code § 21065, the adoption of the urgency ordinance and policy resolution is not a “project”
because their adoption is not an activity that has the potential for a direct physical change or reasonably
foreseeable indirect physical change in the environment. Alternatively, if the adoption does constitute a
project under CEQA, it is one that qualifies for an Exemption from the provisions of CEQA Guidelines
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pursuant to Sections 15183(a) because it entails a project that can be found consistent with the General
Plan policies and pursuant to 15061(b)(3), Review for Exemptions, which states that as a ‘general rule’
CEQA applies only to projects which have the potential to cause a significant, physical environmental
effects. Regarding health hazards and review of individual small wireless facility applications, the City is
not precluded from requiring CEQA review. However, the City cannot make RF-based decisions under
CEQA to the extent that RFR emissions comply with the FCC’s RFR regulations.
COMMUNITY OUTREACH:
Notice of this meeting was mailed to a list of stakeholders 15 days prior to the December 3, 2018 City
Council meeting. In addition, while public notice for an urgency ordinance is not required, a 10-day notice
of the December 17, 2018 City Council hearing on this matter was published in the Marin Independent
Journal and notice was mailed to the list of stakeholders previously notified (see Attachment 5 for meeting
notice).
FISCAL IMPACT:
The proposed adoption of an urgency ordinance and resolution has no direct fiscal impact on the City of
San Rafael. However, the fees that are charged (both non-recurring and recurring) for small wireless
facility applications could have a fiscal impact on the City. Per the FCC ruling, the fees charged by the
City for small wireless facilities must be fair and reasonable. As reported in the December 3 City Council
report, the FCC conducted a survey of 20 local jurisdictions finding that the following fee levels comply
with this “fair and reasonable” standard:
o $500.00 for non-recurring fees,1 including a single, up-front application for up to five small
wireless facility sites, with an additional $100.00 for each additional small wireless facility site
beyond the initial five sites.
o $1,000 for non-recurring fees for a new pole to support one or more small wireless facility.
o $270.00 per year for all recurring fees2 including any right-of-way access fee (e.g.,
encroachment permit) or fee for attachment to a municipality-owned structure in the public
right-of-way.
The FCC ruling states that, in limited circumstances, a state or local agency can charge fees higher than
the above fees provided that: a) they are a reasonable approximation of the costs; b) the costs
themselves are reasonable; and c) they are not discriminatory.
The “non-recurring” fees that are presented in the FCC survey (discussed above) are not enough to cover
the staff costs for the Planning review process and the one-time, $246.00 construction-related
Encroachment Permit (administered by Public Works). The current wireless communication fees charged
by the City are based on a 2011 Cost of Services Study, which found that: a) the Administrative Design
Permit fee of $1,167.00 represents 97% cost recovery (staff time to process and administer the
application); b) the $398.00 Telecommunication Fee represents 100% cost recovery; and c) the more
significant permits for new antennas/structures ($2,258.00/$4,693.00 for Environmental and Design
Review Permit) cover approximately 80-85% of City staff time. The $246.00 fee for a construction-related
Encroachment Permit (“non-recurring” fee) is also 100% cost recovery. However, as proposed, if the
Planning process for small wireless facilities is limited to a Small Cell Permit (fee of $398.00 coupled with
the $246.00 Encroachment Permit), the cost for service would not be recovered. Section 8(a)(16) of the
policy resolution (Attachment 2) recommends that the applicant be subject to covering “cost
reimbursement.”
1 A non-recurring fee is akin to the Planning application fees such as an Administrative Design Review Permit
2 A recurring fee would be akin to an annual fee charged for the encroachment into the public right -of-way
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The Planning Division currently administers a cost reimbursement (cost recovery) program for deposit-
based Planning applications (including several of those applications referenced above). Therefore, it is
recommended that this current cost reimbursement program be administered for all small wireless facility
applications requiring: a) a $2,000 deposit; and b) a signed written statement that acknowledges that the
applicant will be required to reimburse the City of reasonable cost of processing the application. Unused
deposit amounts would be reimbursed to the applicant. This cost reimbursement program is also suitable
in the event an independent contractor is hired by the City. To ensure that applications can be processed
within the time limits established by the FCC, it may be necessary for the City to hire an independent
consultant to complete this service.
OPTIONS:
The City Council has the following options to consider on this matter:
1. Adopt the attached an urgency ordinance and resolution.
2. Direct staff to return with more information.
3. Take no action.
RECOMMENDED ACTION:
Adopt the attached urgency ordinance and resolution.
ATTACHMENTS:
1. Urgency Ordinance for small wireless facilities
2. Resolution (containing regulations, standards and permitting)
3. 23-point list of recommendations presented to the Town of Fairfax from “5G-Free Marin”
4. Public hearing notice
5. Community comments and correspondence received to date
ATTACHMENT 2
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RESOLUTION NO. 14621
RESOLUTION OF THE SAN RAFAEL CITY COUNCIL ADOPTING POLICIES, PROCEDURES,
STANDARDS AND LIMITATIONS FOR SUBMITTAL AND REVIEW OF SMALL WIRELESS
FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY AS SET FORTH IN THE SAN RAFAEL
MUNICIPAL CODE SECTION 14.16.361
WHEREAS, on September 26, 2018, the Federal Communications Commission (FCC) adopted a
Declaratory Ruling and Third Report and Order pertaining to small wireless facilities setting forth limitations
on state and local government regulation of small wireless facilities that are placed on utility poles and
street light standards located in the public right-of-way (the “FCC ruling”); and
WHEREAS, the FCC ruling: a) limits the level of local permitting and discretion; b) establishes “shot
clock” rules (e.g., time limits and deadlines) for processing and action on local permits; and c) limits the
fees that can be charged for the facilities; and
WHEREAS, the FCC ruling further established that any aesthetic regulations and fees required for
processing of small wireless facilities be published in advance; and
WHEREAS, on December 3, 2018, the San Rafael Municipal City Council received a presentation on
the FCC ruling and considered public testimony related to small wireless facility policy and directed staff
to prepare an urgency ordinance to amend San Rafael Municipal Code Title 14 (the “Zoning Ordinance”)
and a policy resolution to include provisions defining and regulating the placement of small wireless
facilities in the City; and
WHEREAS, at the December 3, 2018, City Council meeting the City Council received public testimony
with requests from community members that small wireless facilities regulations include additional
provisions that would prohibit small wireless facilities in the residential districts; and
WHEREAS, the City Council concluded that some of the recommendations presented could be
beneficial in addressing aesthetic impacts; and
WHEREAS, the City Council directed staff to prepare an Urgency ordinance to amend the Zoning
Ordinance related to small wireless facilities with changes to the Draft Resolution that incorporates
additional design criteria;
WHEREAS, on December 17, 2018, the City Council adopted Urgency Ordinance No. 1967
amending the Zoning Ordinance to include provisions to define and regulate the placement of small
wireless facilities in the City. These amendments refer to a policy resolution for application/review
procedures and review criteria for evaluating the placement of small wireless facilities; and
WHEREAS, the City Council finds that, pursuant to California Environmental Quality Act (“CEQA”)
Guidelines § 15378 and California Public Resources Code § 21065, the Policy is not a “project” because
ATTACHMENT 2
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its adoption is not an activity that has the potential for a direct physical change or reasonably foreseeable
indirect physical change in the environment; and
WHEREAS, the City Council finds that, even if the Policy qualified as a “project” subject to CEQA,
and pursuant to CEQA Guidelines § 15061(b)(3), there is no possibility that this project will have a
significant impact on the physical environment. The Policy merely carries out the delegation of authority
under the San Rafael Municipal Code to regulate the deployment of small wireless facilities and does not
directly or indirectly authorize or approve any actual changes in the physical environment; and
WHEREAS, the City Council finds the Policy will, to the extent permitted by federal and California
law, 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 neighborhoods and community;
NOW, THEREFORE, BE IT RESOLVED, that the City Council hereby adopts the following Policies,
Procedures, Standards and Limitations for submittal and review of small wireless facilities:
SECTION 1 PURPOSE AND INTENT
(a)The City of San Rafael 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 that flow from robust, advanced
wireless services with the City’s local values, which include without limitation the aesthetic
character of the City, its neighborhoods and community. This Policy is also intended to reflect and
promote the community interest by (1) ensuring that the balance between public and private
interest is maintained; (2) protecting the City’s visual character from potential adverse impacts or
visual blight created or exacerbated by small wireless facilities and related communications
infrastructure; (3) protecting and preserving the City’s environmental resources; and (4) promoting
access to high-quality, advanced wireless services for the City’s residents, businesses and visitors.
(b)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 interstate or intrastate
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 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 unfair,
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.
ATTACHMENT 2
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SECTION 2 DEFINITIONS
In addition to the definitions contained in San Rafael Municipal Code 14.03.030, the following definitions
shall also provide clarity:
(a)“antenna” means the same as defined by the FCC in 47 C.F.R. § 1.6002(b), as may be amended
or superseded, which defines the term as an apparatus designed for the purpose of emitting
radiofrequency (RF) radiation, to be operated or operating from a fixed location pursuant to
Commission authorization, for the provision of personal wireless service and any commingled
information services. For purposes of this definition, the term antenna does not include an
unintentional radiator, mobile station, or device authorized under part 15 of Title 47.
(b)“arterial street” means a road designated as an arterial or minor arterial street under General Plan
2020 Exhibit 22.
(c)“collocation” means the same as defined by the FCC in 47 C.F.R. § 1.6002(g), as may be
amended or superseded, which defines the term as (1) mounting or installing an antenna facility
on a pre-existing structure; and/or (2) modifying a structure for the purpose of mounting or installing
an antenna facility on that structure.
(d)“concealed” or “concealment” means camouflaging techniques that meet the design standards
in Section 10 and integrate the transmission equipment into the surrounding natural and/or built
environment such that the average, untrained observer cannot directly view the equipment but
would likely recognize the existence of the wireless facility or concealment technique.
Camouflaging concealment techniques include, but are not limited to: (1) facade or rooftop
mounted pop-out screen boxes; (2) antennas mounted within a radome above a streetlight; (3)
equipment cabinets in the public rights-of-way painted or wrapped to match the background; and
(4) an isolated or standalone faux-tree.
(d)“decorative pole” means any pole that includes decorative or ornamental features, design
elements and/or materials intended to enhance the appearance of the pole or the public right-of-
way in which the pole is located.
(e)“Director” means the Community Development Director for the City of San Rafael or the Director’s
designee.
(f)“FCC Shot Clock” means the presumptively reasonable time frame within which the City must act
on a wireless application, as defined by the FCC and as may be amended from time to time.
(g)“personal wireless services” means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as may
be amended or superseded, which defines the term as commercial mobile services, unlicensed
wireless services and common carrier wireless exchange access services. As an illustration and
not a limitation, personal wireless services are typically services that are offered directly to the
public or a class of people for a fee. At the adoption of the Telecommunications Act of 1996, these
services generally meant cellular, specialized mobile radio (SMR) and broadband personal
communications services (PCS).
(h)“personal wireless service facilities” means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i),
as may be amended or superseded, which defines the term as facilities that provide personal
wireless services. As an illustration and not a limitation, personal wireless service facilities are the
ATTACHMENT 2
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physical infrastructure – antennas, support structures, radios, wires and base station equipment –
that are used to provide personal wireless services. “
(i)“RF” means radio frequency or electromagnetic waves generally between 30 kHz and 300 GHz in
the electromagnetic spectrum range.
(j)“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.
(k)“structure” for this policy, means the same as defined by the FCC in 47 C.F.R. § 1.6002(m), as
may be amended or superseded, which defines the term as a pole, tower, base station, or other
building, whether or not it has an existing antenna facility, that is used or to be used for the provision
of personal wireless service (whether on its own or comingled with other types of services).
SECTION 3 APPLICABILITY
(a)Applicable Wireless 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 or otherwise deploy small wireless facilities within the City’s jurisdictional and territorial
boundaries within the public rights-of-way or on private property.
(b)Special Provisions for Eligible Facilities Requests. Notwithstanding Section 3(a), all requests
for approval to collocate, replace or remove transmission equipment at an existing wireless tower
or base station submitted pursuant to Section 6409 will be reviewed consistent with the standards
required by law.
SECTION 4 REQUIRED PERMITS AND APPROVALS
(a)Small Cell Permit. A “small cell permit,” subject to the Director’s prior review and approval, is
required for any small wireless facility proposed on an existing, new or replacement support
structure.
(b)Other Permits and Approvals. In addition to the above a small cell permits, 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
approvals issued by other City departments or divisions. All applications for ministerial permits
submitted in connection with a proposed small wireless facility must contain a valid permit for the
proposed facility. Any application submitted without such small cell permit will be denied without
prejudice. Furthermore, any permit or approval granted under this Policy shall remain subject to all
lawful conditions and/or legal requirements associated with such other permits or approvals.
SECTION 5 SMALL CELL PERMIT APPLICATION REQUIREMENTS
(a)Small Cell Permit Application Contents. All applications for a small cell permit must include all
the information and materials required in this subsection (a).
(1)Application Form. The applicant shall submit a complete, duly executed small cell permit
application on the then-current form prepared by the Director or his/her designee.
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(2)Application Fee. The applicant shall submit the applicable small cell permit application fee
established by City Council resolution. Batched applications must include the applicable
small cell permit application fee for each small wireless facility in the batch. If no small cell
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.
(3)Construction Drawings. The applicant shall submit true and correct construction
drawings, prepared, signed and stamped by a California licensed or registered engineer,
that depict all the existing and proposed improvements, equipment and conditions related
to the proposed project, 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. 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, which shall include the locations for all conduits,
cables, wires, handholes, junctions, transformers, meters, disconnect switches, and points
of connection; and (iv) 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 Survey. For any small wireless facility proposed to be located within the public rights-
of -way, the applicant shall submit a survey prepared, signed and stamped by a California
licensed or registered engineer. The survey must identify and depict all existing boundaries,
encroachments 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.
(6)Project Narrative and Justification. The applicant shall submit a written statement that
explains in plain factual detail whether and why the proposed wireless facility qualifies as a
“small wireless facility” as defined by the FCC in 47 C.F.R. § 1.6002(l). 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
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each required finding for a small cell permit as provided in Section 7(c).
(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 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 ERP) 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)Public Notices. The applicant shall submit a mailing list and envelopes, stamped and
addressed, for all properties and record owners of properties entitled to receive notice
under Section 7(a). Insufficient postage and/or illegible addressing shall be a basis to deem
the application incomplete.
(9)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.
(10)Site Agreement. For any small wireless facility proposed to be installed on any structure
owned or controlled by the City and 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 non-exclusive 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.
(11)Title Report and Property Owner’s Authorization. For any small wireless facility
proposed to be installed on any private property not owned or controlled by the City, the
applicant must submit: (i) a title report issued within 30 days from the date the applicant
filed the application; and (ii) if the applicant is not the property owner, a written authorization
signed by the property owner identified in the title report that authorizes the applicant to
submit and accept a small cell permit in connection with the subject property.
(12)Acoustic Analysis. The applicant shall submit an acoustic analysis prepared and certified
by an engineer 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
ordinance (SRMC 8.13). 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 that the ambient noise
emitted from all the proposed equipment will not, both individually and cumulatively, exceed
the applicable limits.
(b)Additional Requirements. The City Council authorizes the Director to develop, publish and from
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time to time update or amend permit application requirements, forms, checklists, guidelines,
informational handouts and other related materials that the Director 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 6 SMALL CELL PERMIT APPLICATION SUBMITTAL AND REVIEW
(a)Requirements for a Duly Filed Application. Any application for a small cell 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 Director. Applicants may generally submit one application per
appointment, or up to five individual applications per appointment for batched applications
subject to subsection (d). Applicants may schedule successive appointments for multiple
applications whenever feasible and not prejudicial to other applicants. The Director shall
use reasonable efforts to provide the applicant with an appointment within five working days
after the Director receives a written request. Any application received without an
appointment, whether delivered in-person, by mail or through any other means, will not be
considered duly filed.
(2)Pre-Submittal Conferences. The City strongly encourages, but does not require,
applicants to schedule and attend a pre-submittal conference with the Director for all
proposed projects that involve more than five (5) small wireless facilities. This voluntary
pre-submittal conference does not cause the FCC Shot Clock to begin and is intended to
streamline the review process through informal discussion 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. To mitigate unnecessary delays due to application incompleteness,
applicants are encouraged (but not required) to bring any draft applications or other
materials so that City staff may provide informal feedback and guidance about whether
such applications or other materials may be incomplete or unacceptable. The Director shall
use reasonable efforts to provide the applicant with an appointment within five working days
after receiving a written request and any applicable fee or deposit to reimburse the City for
its reasonable costs to provide the services rendered in the pre-submittal conference.
(b)Application Completeness Review. Within 30 calendar days after the Director receives a duly
filed small cell permit application, the Director shall review the application for completeness and, if
any application does not contain all the materials required in Section 5(a) or any other publicly
stated requirements, send a written notice to the applicant that identifies the missing or incomplete
requirements.
(c)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 Director within 60 calendar days
after the Director deems the application incomplete in a written notice to the applicant. As used in
this subsection (c), a “substantive response” must include the materials identified as incomplete in
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the Director’s notice.
(d)Batched Applications. Applicants may submit up to five individual applications for a small cell
permit in a batch; provided, however, that small wireless facilities in a batch must be proposed with
substantially the same equipment in the same configuration on the same support structure type.
Each application in a 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 application in
a batch is incomplete, the entire batch shall be deemed incomplete. If any application is withdrawn
or deemed withdrawn from a batch, the entire batch shall be deemed withdrawn. If any application
in a batch fails to meet the required findings for approval, the entire batch shall be denied.
(e)Additional Procedures. The City Council authorizes the Director to establish other reasonable
rules and regulations for duly filed applications, which may include without limitation regular hours
for appointments with applicants, as the 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 all interested parties with prior notice.
SECTION 7 APPROVALS AND DENIALS; NOTICES
(a)Public Notice. Prior to any approval, conditional approval or denial, public notice shall be mailed
to all properties and record owners and occupants of properties within a 500-foot radius of the
project site. The notice must contain: (1) a general project description; (2) the applicant’s
identification and contact information as provided on the application submitted to the City; (3)
contact information for the Project Planner; (4) a statement that the Director will act on the
application without a public hearing, but will for a minimum of ten (10) days from the date of the
notice accept written public comments that evaluate the application for compliance with the
standards in this Policy; and (5) a statement that the FCC requires the City to act on small wireless
facility applications, which includes any administrative appeals, in 60 days for attachments to
existing structures and 90 days for new structures, unless the applicant voluntarily agrees to toll
the timeframe for review.
(b)Administrative Review. Not less than 10 calendar days after the public notice required in
subsection (a), the Director shall approve, conditionally approve or deny a complete and duly filed
small cell permit application without a public hearing.
(c)Required Findings. The Director may approve or conditionally approve a complete and duly filed
application for a small cell permit when the Director finds:
(1)the proposed project meets the definition for a “small wireless facility” as defined by the
FCC;
(2)the proposed project would be in the most preferred location provided in Section 9(b) 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 project would not be located on a prohibited support structure identified in this
Policy;
(4)the proposed project would be on the most preferred support structure provided in Section
9(c) or 9(d) or the applicant has demonstrated with clear and convincing evidence in the
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written record that any more-preferred support structure(s) within 500 feet would be
technically infeasible;
(5)the proposed project complies with all applicable design standards in this Policy;
(6)the applicant has demonstrated that the proposed project will be in compliance with all
applicable health and safety regulations, which include without limitation the Americans
with Disabilities Act and all FCC regulations and guidelines for human exposure to RF
emissions; and
(7)all public notices required for the application have been given.
(d)Conditional Approvals; Denials without Prejudice. Subject to any applicable federal or
California laws, nothing in this Policy is intended to limit the Director’s ability to conditionally
approve or deny without prejudice any small cell permit application as may be necessary or
appropriate to ensure compliance with this Policy.
(e)Decision Notices. Within five calendar days after the Director acts on a small cell permit
application or before the FCC Shot Clock expires (whichever occurs first), the Director shall notify
the applicant of such decision by written notice. If the Director denies the application (with or without
prejudice), the written notice must contain the reasons for the decision.
(f)Appeals. Any decision to approve, conditionally approve or deny a small wireless facility shall be
appealable directly to the City Council. Appeals shall be filed within 5 working days of a decision
having been rendered. Any such appeal shall include a letter identifying the name, address and
contact information for the appellant and provides the reasons for the appeal based on the alleged
noncompliance with the required findings in Section 7(c). the reasons for appeal. Any such appeal
shall be subject to the appeal fees established in the City’s Master Fee Schedule. Appeals from an
approval will not be permitted to the extent that the appeal is based on environmental effects from
RF emissions that comply with all applicable FCC regulations.
SECTION 8 STANDARD CONDITIONS OF APPROVAL
(a)General Conditions. In addition to all other conditions that may be adopted by the Director for a
small cell permit, all such permits issued under this Policy shall be automatically subject to the
conditions in this subsection (a).
(1)Permit Term. This small cell permit will automatically expire 10 years and one day from its
issuance. Any other permits or approvals issued in connection with any collocation,
modification or other change to this small 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. To the extent that this small cell permit
is issued in connection with any structure owned or controlled by the City and located in the
public rights-of-way, this small cell permit shall be coterminous with the cancellation,
termination or expiration of the agreement between the applicant and the City for access to
the subject City structure.
(2)Permit Renewal. Not more than one year before this small cell permit expires, the
permittee may apply for permit renewal. The permittee must demonstrate that the subject
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small wireless facility complies with all the conditions of approval associated with this small
cell permit and all applicable provisions in the Municipal Code and this Policy that exist at
the time the decision to renew or not renew the permit is rendered. The Director may modify
or amend the conditions on a case-by-case basis as may be necessary or appropriate to
ensure compliance with this Policy. Upon renewal, this small cell permit will automatically
expire 10 years and one day from its issuance.
(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 Director with documentation reasonably acceptable to the
Director 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, GIS data and site
photographs.
(4)Build-Out Period. This small cell permit will automatically expire six (6) months from the
approval date (the “build-out period”) 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 or the construction permit expires, the permit automatically
terminates and the City will not extend the build-out period or the permit, 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 cell 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 cell 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 San Rafael 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 San Rafael 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
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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 San Rafael 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 Director may issue a stop work order for any activities that violates this
condition in whole or in part.
(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 upon reasonable prior notice to the
permittee. Notwithstanding the prior sentence, the 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 of this small cell
permit, the permittee shall furnish the Director 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 Director with updated contact information if either the
responsible person or such person’s contact information changes.
(10)Indemnification. The permittee and, if applicable, the property owner (if not on City-owned
infrastructure) upon which the small wireless facility is installed 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 (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
indemnitees to challenge, attack, seek to modify, set aside, void or annul the City’s approval
of this small cell permit, and (2) 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 and the private property owner (if applicable) 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. Within ten calendar days
of the service of a claim, the permittee shall execute a letter of agreement with the City,
acceptable to the Office of the City Attorney, which memorializes the above obligations.
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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.
(11)Performance Bond. Before the City issues any permits required to commence
construction in connection with this small cell permit, the permittee shall post a performance
bond from a surety and in a form acceptable to the Director 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 small 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 Director shall take into
consideration any information provided by the permittee regarding the cost to remove the
small wireless facility to a standard compliant with applicable laws. The performance bond
shall expressly survive the expiration, revocation or other termination of this small cell
permit to the extent required to completely remove the equipment and improvements,
restore the affected areas and perform all other oblig ations in accordance with this
condition.
(12)Permit Revocation. Any permit granted under this Policy may be revoked in accordance
with the provisions and procedures in this condition. The Director may initiate revocation
proceedings when the Director has information that the facility may not be in compliance
with all applicable laws, which includes without limitation, any permit in connection with the
facility and any associated conditions with such permit(s). Before the Director may conduct
a public hearing to revoke any permit granted under this Policy, the Director must issue a
written notice to the permittee that specifies (i) the facility; (ii) the violation(s) to be corrected;
(iii) the timeframe in which the permittee must correct such violation(s); and (iv) that, in
addition to all other rights and remedies the City may pursue, the City may initiate
revocation proceedings for failure to correct such violation(s). A permit granted under this
Policy may be revoked only by the City Council after a duly notice public hearing. The City
Council may revoke a permit when it finds substantial evidence in the written record to show
that the facility is not in compliance with any applicable laws, which includes without
limitation, any permit in connection with the facility and any associated conditions with such
permit(s). Any decision by the City Council to revoke or not revoke a permit shall be final
and not subject to any further appeals. Within five business days after the City Council
adopts a resolution to revoke a permit, the Director shall provide the permittee with a written
notice that specifies the revocation and the reasons for such revocation.
(13)Record Retention. Throughout the permit term, the permittee must maintain a complete
and accurate copy of the written administrative record, which includes without limitation the
small cell permit application, small cell permit, RF report, the approved plans and photo
simulations incorporated into this approval, all conditions associated with this approval, any
ministerial permits or approvals issued in connection with this approval and any records,
memoranda, documents, papers and other correspondence entered into the public record
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in connection with the small cell permit (collectively, “records”). If the permittee does not
maintain such records as required in this condition, any ambiguities or uncertainties that
would be resolved by inspecting the missing records will be construed against the
permittee. The permittee shall protect all records from damage from fires, floods and other
hazards that may cause deterioration. The permittee may keep records in an electronic
format; 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
permittee’s electronic copies, and complete originals will control over all other copies in any
form. The requirements in this condition shall not be construed to create any obligation to
create or prepare any records not otherwise required to be created or prepared by other
applicable laws. Compliance with the requirements in this condition shall not excuse the
permittee from any other similar record-retention obligations under applicable law.
(14)Abandoned Wireless Facilities. The small wireless facility authorized under this small cell
permit 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 and/or property owner 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 San Rafael Municipal Code. In the
event that neither the permittee nor the property owner complies 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 and property owner shall be jointly and severally 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
International Society of Arboriculture certified 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 and consistent with the City’s list of pre -
approved street trees. The permittee shall, at all times, be responsible to maintain any
replacement landscape features.
(16)Cost Reimbursement. 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)Cooperation with RF Compliance Evaluations. At all times relevant to this permit, the
permittee and the property owner shall reasonably cooperate with efforts by the City to
evaluate whether the wireless facility complies with all applicable FCC rules and regulations
for human exposure to RF emissions. Such cooperation shall be at no cost to the City and
may include, but is not limited to: (1) furnishing the City with a written affidavit signed by an
RF engineer certifying the wireless facility’s compliance with applicable FCC rules and
regulations; (2) providing technical data such as the frequencies in use, power output levels
and antenna specifications, reasonably necessary to evaluate compliance with maximum
permissible exposure levels set by the FCC; (3) allowing the City or its designee to have
supervised access to the areas near the wireless facility for inspections and field
measurements; and (4) promptly responding to all requests by the City or its designee for
information and/or cooperation with respect to any of the foregoing. The City may conduct
random tests to ensure compliance with the FCC’s rules and regulations. In the event that
the City determines that permittee is not in compliance with any legal requirements or
conditions, the permittee shall be responsible for all costs and expenses incurred by the
City in connection with the investigation, enforcement and/or remediation of such
noncompliance.
(b)Conditions for Small Wireless Facilities in the Public Rights-of-Way. In addition to all
conditions in subsection (a), all small cell permits for small wireless facilities in the public rights-of-
way issued under this Policy shall be automatically subject to the conditions in this subsection (b).
(1)Future Undergrounding Programs. If other public 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 underground
its equipment except the antennas, any electric meter and any other equipment that must
be placed above ground to function. Accessory equipment such as radios and computers
that require an environmentally controlled underground vault to function are not exempt
from this condition and shall be undergrounded. 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. S uch
undergrounding shall occur at the permittee’s sole cost and expense except as may be
reimbursed through tariffs approved by the CPUC for undergrounding costs.
(2)Electric Meter Upgrades. 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.
(3)Rearrangement and Relocation. The permittee acknowledges that the City, in its sole
discretion and at any time, may: (1) change any street grade, width or location; (2) 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 (3) 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
ATTACHMENT 2
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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, 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 ten (10) days after a written demand for reimbursement and reasonable
documentation to support such costs.
SECTION 9 LOCATION REQUIREMENTS
(a)Preface to Location Requirements. This subsection (a) provides guidance as to how to interpret
and apply the location requirements in this Section 9. To better assist applicants and
decisionmakers understand and respond to the community’s aesthetic preferences and values,
subsections (b), (c) and (d) set out listed preferences for locations and support structures to be
used in connection with small wireless facilities in ordered hierarchies. Applications that involve
least-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 (e) identifies “prohibited” support structures on which the City shall not approve any
small cell permit application for any competitor or potential competitor.
(b)Location Preferences. The City prefers small wireless facilities to be installed in locations,
ordered from most preferred to least preferred, as follows:
(1)Most Preferred Locations.
(A)City-owned parcels in any zoning district;
(B)any parcel or public right-of-way location in Industrial Zoning Districts;
(C)any parcel or public right-of-way location in Commercial and Downtown Commercial
Zoning Districts;
(D)any parcel or public right-of-way location in Marine Zoning District; and
(E)any parcel or public right-of-way location in Public/Quasi Public District;
(2)Less Preferred Locations.
(A)any parcel or public right-of-way location in Parks/Open Space Districts;
(B)any public right-of-way location in Residential Zoning Districts (R, DR, MR, HR) on or
along roads designated as arterial or minor arterial roads (see Exhibit A of this
resolution);
ATTACHMENT 2
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(3)Least Preferred Locations.
(A)any public right-of-way location in Residential Zoning Districts (R, DR, MR, HR) on or
along roads not designated as arterial or minor arterial roads (see Exhibit A of this
resolution);
(B)any parcel located in Residential Zoning Districts (R, DR, MR, HR).
(C) any parcel or public right-of-way location within 500 feet of a school site
For purposes of these location preferences, the applicant’s proposed location in the public right-
of -way shall be classified by the same zoning district that applies to the nearest adjacent parcel.
Planned Development Zoning District shall follow the closest zoning district from lists above, based
on the approved uses.
(c)Support Structures in the 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;
(2)existing or replacement wood utility poles;
(3)new, non-replacement streetlight poles;
(4)new, non-replacement poles for small wireless facilities.
(e)Support Structures Outside the Public Rights-of-Way. The City prefers small wireless facilities
to be installed on support structures outside the public rights-of-way, ordered from most preferred
to least preferred, as follows:
(1)existing buildings or other non-tower structures previously approved for use as a support
structure for personal wireless service facilities;
(2)other existing buildings or non-tower structures;
(3)existing or replacement poles or towers;
(4)new, non-replacement towers for small wireless facilities.
(f)Prohibited Support Structures. The City prohibits small wireless facilities to be installed on the
following support structures, whether located in the public rights-of-way or not:
(1)decorative poles;
(2)traffic signals, signs, poles, cabinets and related devices;
(3)any utility pole scheduled for removal or relocation within 12 months from the time the
Director acts on the small cell permit application;
(4)new, non-replacement wood poles.
SECTION 10 DESIGN STANDARDS
(a)General Standards.
(1)Noise. Small wireless facilities and all accessory equipment and transmission equipment
must comply with all applicable noise control standards and regulations in San Rafael
Municipal Code Articles 8.13, and shall not exceed, either on an individual or cumulative
basis, the noise limit in the applicable district.
ATTACHMENT 2
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(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 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. Small wireless facilities shall not displace any 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 Director 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 and location.
Landscape maintenance must be performed in accordance with San Rafael Municipal Code
14.25.050.G.
(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 Director 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 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, OSHA 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, the Americans with Disabilities Act, California Building
Standards Code and the San Rafael Municipal Code.
(b)Small Wireless Facilities in the Public Right-of-Way.
(1)Overall Height. Small wireless facilities may not exceed either (A) the minimum separation
from electrical lines required by applicable safety regulations (such as CPUC General Order
95), plus four feet or (B) four feet above the existing support structure. However, at no point
shall an existing support structure be increased by more than 10 feet above existing height.
(2)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 graffiti-resistant and
painted a flat, non-reflective color to match the underlying support structure.
ATTACHMENT 2
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(B)Antenna Volume. Each individual antenna may not exceed three cubic feet in
volume and all antennas may not exceed six cubic feet in volume.
(3)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 infeasible 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.
(C)Pole-Mounted Accessory Equipment. All pole-mounted accessory equipment
must be installed at least 10 feet above grade and 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.
(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 Director 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
ATTACHMENT 2
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(9) cubic feet in volume if installed in a residential district or within 500 feet from any
structure approved for a residential use; 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.
(4)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 City’s standards and specifications but designed to accommodate wireless antennas
and accessory equipment, unless the existing streetlight has been designed and
engineered to support a small wireless facility in accordance with applicable health and
safety regulations. 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.
(5)Wood Utility Poles. Applicants that propose to install small wireless facilities on an existing
wood utility pole must install all antennas 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 side-arm mount or extension arm. The maximum
horizontal separation between the antenna and the pole shall be the minimum separation
required by applicable health and safety regulations.
(6)New, Non-Replacement Poles. Applicants that propose to install small wireless facilities
on a new, non-replacement pole must demonstrate that any existing structures within 500
feet from the proposed site would be technically infeasible as supported by clear and
convincing evidence in the written record. Any new, non-replacement pole must be a new
streetlight substantially similar to the City’s standards and specifications 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.
(7)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.
(8)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.
ATTACHMENT 2
2-20
(9)Obstructions; Public Safety. 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; or (F) access to any fire
escape.
(10)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 as possible if on a wood pole or other pole without internal
cable space. The Director shall not approve new overhead utility lines or service drops
merely because compliance with the undergrounding requirements would increase the
project cost.
(11)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.
(12)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 Director shall not approve a
separate ground-mounted electric meter pedestal.
(13)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,
consistent with the City’s list of pre-approved street trees, at the site for the duration of the
permit term.
(c)Small Wireless Facilities Outside the Public Right-of-Way.
(1)Overall Height. Small wireless facilities on private property may not exceed the applicable
height limit for structures in the applicable zoning district or overlay zone.
(2)Setbacks. Small wireless facilities on private property may not encroach into any applicable
setback for main structures in the subject zoning district.
(3)Backup Power Sources. The Director shall not approve any diesel generators or other
ATTACHMENT 2
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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.
(4)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.
(5)Towers, Poles and Other Freestanding Small Wireless Facilities. All new towers, 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 height shall not exceed thirty-five (35) feet or the height limit for
the applicable zoning district or overlay zone, whichever is less. The pole diameter shall
not exceed twelve (12) inches and any base enclosure diameter shall not exceed sixteen
(16) inches.
(6)Building-Mounted Small Wireless Facilities.
(A)Preferred Concealment Techniques. All applicants must propose new non-tower
small wireless 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 mimic the replaced materials). Alternatively, if the applicant
demonstrates with clear and convincing evidence that integration with existing
features is technically infeasible, the applicant may propose completely concealed
new structures or appurtenances designed to mimic the support structure’s original
architecture and proportions (examples include, but are not limited to, steeples and
chimneys).
(B)Facade-Mounted Equipment. When small wireless facilities cannot be placed
behind existing parapet walls or other existing screening elements, the Director may
approve facade-mounted equipment in accordance with this subsection (c)(6)(B).
All facade-mounted equipment must be concealed behind screen walls and
mounted flush to the facade. The Director may not approve “pop-out” screen boxes.
Except in industrial zones, the Director may not approve any exposed facade-
mounted antennas, including but not limited to exposed antennas painted to match
the facade.
BE IT FURTHER RESOLVED that any and all amendments to the Small Wireless Facilities policies,
procedures, standards and limitations herein, as deemed necessary from time-to-time shall be adopted
by resolution of the City Council.
ATTACHMENT 2
2-22
I, Lindsay Lara, Clerk of the City of San Rafael, hereby certify that the forgoing resolution was adopted as
a regular meeting of the City Council on the 17th day of December 2018.
AYES:
NOES:
ABSENT:
COUNCILMEMBERS: Bushey, Colin, Gamblin, McCullough & Mayor Phillips
COUNCILMEMBERS: None
COUNCILMEMBERS: None
_______________________________________
LINDSAY LARA, City Clerk
EXHIBITS:
A.General Plan 2020, Exhibit 22-San Rafael Roadways and Arterials
ATTACHMENT 3
23-Point Recommendations from "SG-Free Marin"
Ordinance Recommendations, 11/29 Planning Commission
Dear Fairfax Planning Commission:
Below you will find a comprehensive list of recommendations for our Fairfax
Urgency Ordinance addressing 5G. Please consider these as you make
recommendations and edits for the Town Council, and factor in the following
suggestions we believe will be helpful in creating the strongest, most effective
ordinance.
Attachments we refer to below include:
1. ADA/US Access Board Information
2. Property Value Reduction Information
3. Permitting Process and Measurements
4. Peter Lacques Recommendations
Below are proposed ideas/language to be included in the ordinance:
1. Zoning and other prohibitions-Installations in residential zoning districts,
public rights of way and easements in all zones are prohibited. Note: the
Mill Valley Ordinance has an unintentional loophole on public rights of way-
this needs to be addressed in all further ordinances, to make sure
public rights of way and easements are also prohibited in zones
where facilities are and are not permitted. We recommend eliminating
the following additional zones: CC, CL, PD. We recommend keeping CS
and CH as allowable zones, but further restricting areas by parcel
delineation, to be reviewed and approved by the Planning Commission.
Also eliminate the item stating "in the public right of way with the
closest district being the commercial district". (we can provide exact
details of where to make these amendments in the ordinance.)
2. Property Values-We have data that shows that property values can drop
up to 20% when a small cell antenna is nearby, and 94% of home buyers
are less interested in a property (see attachment #2 Property Value
Reduction Information). We are recommending language be included in
our Fairfax ordinance that protects property owners and property values
from this effective "taking" of Fairfax residents' property should 5G
installations go forward. Please see attachment #2 for more details and
our specific recommendations.
3. Public Process-Upon proposal of any wireless facilities from telecoms,
the town must notify the public via website, postings, and paper mail.
Include all residents within 3000 feet. During the application process, the
town must provide a public comment period and schedule meetings to
address issues about the proposed facility. Telecoms are required to use
story poles to demonstrate actual size and physical impact. Public notice
mailings should include information about the notification contents on the
outside of the envelope such as, "Notice of Nearby Cell Antenna Proposal"
to ensure the public sees and has an opportunity fully participate. See
permitting process details, Attachment #3, Permitting Process and
Measurments (composed by Frank Leahy, Mill Valley). Note: public
hearings have been effective in discouraging the telecoms for Montgomery,
MD and Burlington, MA.
4. Permitting process-The town must adopt a more rigorous permitting
process. A new telecom permit application should be designed, with new
components. As stated in the attached content, this equipment can often
be remotely upgraded or changed via software at any time, so both
permitting and monitoring process should be specific, frequent, and
rigorous. Details for exactly what to include in the process can be found in
the attached document from electrical engineer Frank Leahy, item #3.
5. Monitoring-The town of Fairfax/San Anselmo must create a robust signal
monitoring plan and use our own contractors to do the work-not industry
contractors. In addition to developing a protocol on how and where to
measure, the issue of how frequently measurement should be taken needs
attention . Once per year is grossly inadequate. We would like to
recommend including language for an ongoing real time monitoring plan
that the telecoms would pay for. We need to know specifics about what
kind and how strong the signals are from antennas. This requires more
research, but we think is quite reasonable and feasible. If this cannot be
done, then we will need monitoring at least once per month. (The attached
document on permitting process recommendations written by Mill Valley
electrical engineer Frank Leahy gives some guidance and suggestions on
this as well, item #3.)
6. ADA-Add language about the 'ADA, which addresses electrical sensitivity
as a federally recognized disability: "The reviewing authority may NOT
grant an exception if the exception itself violates federal and/or state law,
, including, but not limited to, the ADA", (Please see Attachment #1,
ADA/US Access Board lnformaiton.) [Note: the ADA was originally part
of the revised Urgency Ordinance, then appeared to be removed by town
staff edits. We are asking that the content about the ADA be replaced and
addressed.]
7. Undergrounding -Require undergrounding for cables and accessory
equipment for facilities in the public right-of-way and amend language to
state that ground-level equipment MUST be undergrounded. Omit "if
feasible" in ordinance (Fairfax has "if feasible" language). Undergrounding
must occur within 3 feet of the utility pole on which the antennas are
mounted. This language should also be spelled ,out in the Conditions of
Approval section. Before any digging occurs, a full cultural resources
evaluation should be required (see above). Also, Fairfax has some
undergrounding districts. If we restrict installation to these districts, it
could create a strong disincentive for antenna installation here. It is
our understanding that undergrounding can cost telecoms 3 to 10 times as
much as installing equipment on poles.
8. Co-location-Co-location (the addition of multiple antennas on an existing
antenna structure) rules in California provide telecoms a green light with
virtually no controls or regulations by local jurisdictions unless the there are
changes to the physical dimensions of the structure that the new
equipment will be installed on. Co-location may be difficult to fight in
places where there is existing equipment, but we have identified a problem
with this issue. Once equipment is installed in a town on a pole, then
anything afterwards is considered co-location. We need to have language
in place that does not allow this to be abused, and that ensures that
telecoms do not circumvent the normal permitting processes we are
planning on putting into place (such as public meetings, etc.) This is
complex because co-location is protected by state law (or possibly federal),
and local laws do not supersede state and federal -laws, yet this is a critical
element to review. We would like to discuss this with you before 11 /29 if
possible.
9. Exceptions Clauses-We have had many suggestions about exceptions
and how they could work for us or against us. If we are excessively
restrictive in other areas, having an exception clause can protect us from
being sued by the telecoms as it provides them a doorway in. If, however,
we have too broad of an exceptions clause, it creates loopholes that can be
big enough for 5G antennas to get through too easily. We would like the
town's legal council to craft this skillfully with the town's interest as the
priority rather than the telecoms, and to not allow a major loophole for
telecom entry.
10. Fire Hazard and Other Hazard Potential-A full fire hazard potential
assessment must be conducted that includes the presence of nearby
vegetation and structures. All materials in the facilities must be disclosed,
including hazardous materials in any and all equipment. No poles should
be overloaded such that a risk is created for life or property. There should
be no co -location of equipment on such facilities. Mechanical
consideration: poles and other structures must exceed general guidelines
to ensure they can withstand earthquakes and storms. There are studies
that show equipment killing trees and drying local vegetation through
desiccation creates further fire hazards. This needs further assessment,
which we can help provide.
11. Other Hazards-5G equipment is frequently installed on poles underneath
or adjacent to electrical wires and equipment, which has been the cause of
several recent local fires (Santa Rosa, Camp, Malibu, etc.). Additionally,
as indicated above, studies show equipment killing and drying out adjacent
vegetation. [Please see the additions to Chapter 20 in Fairfax, attached-
Peter Lacques proposed changes to urgency ordinance 9/26, listed also in
the Findings section of the ordinance, Attachement #4, Peter Lacques
Recommendations.]
12. Decorative Light Poles-Prohibit installations on all Decorative Light
Poles. In Fairfax, we have asked for this prohibition. (To protect our street
lamps from a 50% height increase, amend by adding, "The downtown
decorative street light poles are exempt from this section.")
13. Viewsheds and Aesthetics Considerations-Viewsheds and general
aesthetics need to be considered via the design review process for all
applications with full public noticing and involvement. Consideration should
include historic preservation considerations and the general aesthetic
character of our towns. Facilities must not disrupt or alter the aesthetic
beauty or historic character of the town. This should be subject to review by
the Town Planning Commission and approved by the Town Council.
14. Schools and Child Care Centers-Similarly, we wish to restrict a 1000
foot buffer around schools, child care centers, and elder facilities from
consideration of 5G installation. As with the item above, this can be
accomplished through our zoning restrictions.
Related to this: are there any opportunities for potential compensation from
the telecoms to pay for relocating children from schools impacted by 5G
radiation? There may be issues around inter-district transfer limitations and
potentially forcing kids into private schools which are very expensive. If this
were to happen, who would pay? And, what about lost revenue for
schools that lose children due to transfers to other schools? This is a very
real possibility we believe needs to be addressed.
15. Health Care Facilities -We recommend that the Town of Fairfax require a
1000-foot buffer around medical care facilities for 5G small cell and other
similar wireless antennas to ensure safety of recovering patients. [Note:
We are recommending only certain planning zones be eligible for 5G
antennas. Within those zones, there will be further restrictions. This item
may best be addressed in our zoning section without mentioning Care
Meridian in Fairfax, our only health care facility (head injury care facility).
This may be a wise strategy as mentioning health is, of course, a red flag
for telecoms.]
16. Establishing setbacks and antenna intervals-We know each antenna
can transmit up to at least 1 GB/sec of data at 3000 feet. Even with
prohibition in the residential areas for antennas, this would impact a large
swath of town, both residential and commercial. With setbacks and
antenna intervals, as well as limiting zoning and strategic placing, we can
control where antennas are placed. We want to minimize exposure to
people living in mixed use zones and on the edge of commercial zones.
Our strategy is to eliminate most of the zones, all with residential, except
for two commercial zones. Within those zones we are recommending
further restricting locations on specific parcels to protect the most
vulnerable populations, among others (children and elderly, etc.)
17. Endangered/Threatened Species, ESA-Fairfax is home to several
endangered and threatened species. Here in Fairfax we have spotted
owls, and in our creeks we have threatened steelhead and other listed
species. We need to review the Natural Resources Database to see what
else we have here. There are increasing numbers of studies emerging that
focus on insect and other wildlife impacts from this technology. We recently
learned that there may be a state or federal law prohibiting local
jurisdictions from using environmental impacts to stop 5G installations, but
we are not sure if this is the case. Using provisions in the Endangered
Species Act could certainly help, especially with regards to creating a
rationale for buffers. More research is needed here, and we can help in this
area.
18. Trees-The town of Fairfax has a tree ordinance that requires a permitting
process to remove trees. Fairfax has a committee that reviews applications
and make recommendations for approval/disapproval. There are studies
that show cell tower radiation kills trees. The study we recently reviewed
was focused on cell towers installed in trees, but any trees in close
proximity would have similar effects. Telecoms would need to do a tree
analysis within a certain number of feet of antennas and if there is a risk of
killing trees, the telecoms should be required to apply for a tree removal
permit if equipment is installed within 100 feet of trees.
19. Cultural Resources-Under CEQA there needs to be full assessment of
cultural resources, including artifacts buried under the ground. We are
asking for undergrounding of equipment and want to be assured that there
are no cultural artifacts where telecoms may want to dig, and if there are,
the proper process is followed (archeologists on site, etc.).
20. Cumulative Impact Assessment-CEQA requires cumulative impact
assessments. Despite the FCC and 1996 FT A's prohibition on health as a
rationale for prohibiting installations, there may be other cumulative
impacts that need to be assessed, such as visual or aesthetic and
environmental impacts. We have not come up with other specific
examples, but perhaps there could be language included about health if
deemed useful.
21. Conflicts with Other Plans and Regulations-CEQA has a category of
"Conflict with any land use plan, policy or regulation". We have outlined our
undergrounding districts and our tree ordinance here. These are two that
we can think of, please investigate to see if there are more .
22 . Future Damages-Regarding health, we want to investigate if there is
anything in the law that allows corporations to be held liable for future
damages (could a coal burning plant be liable for future damage to air
quality or health of neighbors, etc.?) We are curious if something like that
could be applied here.
23. Noise Assessment/Evaluation-There should be no equipment that
generates noise whatsoever. Ordinance needs to have language that
specifies details around noise and abatement, including containment if
there are fans or other noisy components.
Legal No.
Marin Independent Journal
4000 Civic Center Drive, Suite 301
San Rafael, CA 94903
415-382-7335
legals@marinij.com
I am a citizen of the United States and a resident of the
County aforesaid: I am over the age of eighteen years ,
and not a party to or interested in the above matter. I am
the principal clerk of the printer of the MARIN
INDEPENDENT JOURNAL, a newspaper of general
circulation, printed and published daily in the County of
Marin, and which newspaper has been adjudged a
newspaper of general circulation by the Superior Court of
the County of Marin, State of California, under date of
FEBRUARY 7, 1955, CASE NUMBER 25566; that the
notice, of which the annexed is a printed copy (set in type
not smaller than nonpareil), has been published in each
regular and entire issue of said newspaper and not in
any supplement thereof on the following dates, to-wit:
12/07/2018
I certify (or declare) under the penalty of perjury that the
foregoing is true and correct.
Dated this 7th day of December, 2018.
PROOF OF PUBLICATION
(2015.5 C.C.P.)
STATE OF CALIFORNIA
County of Marin
Signature
PROOF OF PUBLICATION
0006265233
2070419
CITY OF SAN RAFAEL
CITY OF SAN RAFAEL
CITY CLERK, ROOM 209
1400 FIFTH AVENUE, SAN RAFAEL, CA 94901
SAN RAFAEL, CA 94915-1560
r.BP7-11/10/16 1
Associated Constituent
Adam Silver
C-1057588, added on December 3rd, 2018 at 6:32 PM
Phone Numbers:
Email Addresses:
Locations:None
Conversation:
First Name: Adam
Last Name: Silver
Email Address:
Phone Number:
Subject: SMALL CELL “5G” WIRELESS COMMUNICATION TECHNOLOGY
Message: I'm concerned the city will have no way to verify, and no recourse, if small cell sites prove to not be compliant with FCC
guidelines concerning microwave emissions and microwave emissions at prescribed distances. The city should add, as part of their 'fees',
charges for independent testing and verification of each cell site's compliance. Furthermore, the vendor, shall be held responsible to fix or
replace any cell sites out of compliance and be subject to re-verification at the vendor's expense. Furthermore, data communications
between small cell-sites be done via fiber optic cable or some other 'wired' means to insure that data transport does not happen wirelessly
between cell sites, thus increasing transmissions.
A:
LOCATION
Inbound form submission from Adam Silver to Contact the City Council on December 3rd, 2018 at 6:32 PM
Thank you for your message. We value your input and strive to respond to any questions or concerns within 2 business days. Thank you, City of
San Rafael
Automated message sent to Adam Silver via City Manager's Office on December 3rd, 2018 at 6:32 PM
City of San Rafael
Conversation with Adam Silver
From:
Sent: Tuesday, December 11, 2018 5:48 AM
To:
Subject: 5G ordinance
Thank you so much for supporting the health of the citizens
of San Rafael and Marin County.
I am including part of an article about some other people
who are thinking of human and animal safety:
"It all comes down to this: Jim Turner, Esq., President of NISLAPP (The
National Institute for Science, Law & Public Policy, says: “NISLAPP considers
it a mistake to place new high-frequency radiating antennas in local
communities, in very close proximity to homes, offices and schools, when no
pre-market health testing at scale has been conducted on the effects of the
radiation emitted, to our knowledge, and when much safer hard-wired internet
access technologies are readily available. We strongly support Senator
Blumenthal’s request of FCC Commissioner Carr to provide the documentation
evidencing the FCC’s ‘safety determination for 5G,’ along with the supporting
scientific citations used in making that determination.”
https://www.businesswire.com/news/home/20181203006017/en/Blumenthal-
Presses-FCC-Commissioner-Brendan-Carr-Disclose
There actually is a huge amount of info about health problems
with other EMF-radiating technology like the "smart" meters.
To opt out, BEFORE installation and negative effects, makes
sense.
Furthermore 5G does not offer any great tech advantages to
citizens--it is for the convenience of the telecoms.
I would not worry about lawsuits because companies do not want
the bad publicity.
Thank you, Sangita Moskow
Sangita Moskow
For sound samples:
http://www.lisasangitamoskow.com
From:
Sent: Monday, December 10, 2018 4:57 PM
To:
Subject: Dec. 3rd SR City Council Meeting & 5G
Dear Mayor, Council Members & Staff,
As a resident of San Rafael for over 25 years, I want to thank you for your astonishing sustained presence
during the long-houred meeting on Decemeber 3rd.
You listened to perhaps a record number of open-period public comments on a single topic; your reflections
at the end of the evening reflected sincere interest in the concerns of your constituents, and your questions
to the attorney, Mr. Johnson who advised on the FCC ruling, and staff who drafted a urgency Ordinance
were intelligent and far reaching, seeking a skillful strategy for protecting the local jurisdiction from federal
and telecom domination.
As you work on your current draft, please incorporate into the new Ordinance/Resolution, specific Revisions
and Recommendations submitted by Vicki Sievers, Kim Hahn, Bob Berg and Alex Stadtner.
Many Thanks,
Lonner Holden
From:
Sent: Sunday, December 09, 2018 8:28 PM
To:
Subject: I spoke December 3rd on 5G...
I spoke December 3rd on the 5G issue. I was not able to finish, so I am sending this simple solution for your
consideration.
NO 5G IN MARIN COUNTY, PERIOD!
I suggest our City Councils clearly say NO to the FCC. NO 5G installations of any kind in Marin, until it can be
proven safe for us and the environment. The mandates of the FCC, by not allowing health and safety to be a
consideration, clearly show their mandates are unjust. We have an obligation and a right to refuse to obey unjust
laws.
A popular quote of Thomas Jefferson is, ”If a law is unjust, a man is not only right to disobey it, he is obligated to do
so." The Thomas Jefferson foundation website, suggests this quote it is a paraphrase of Jefferson's statement in the
Declaration of Independence, "...whenever any Form of Government becomes destructive of these ends, it is the
Right of the People to alter or to abolish it, and to institute new Government…,”. Martin Luther King, Jr.'s comment
in his famous letter from Birmingham Jail: "One has not only a legal but a moral responsibility to obey just laws.
Conversely, one has a moral responsibility to disobey unjust laws.”
And there is Jury Nullification, a right not forthrightly shared by judges. A jury has the right to nullify an unjust law
and free a defendant so charged. We disobey or counter sue and nullify the FCC by jury or grand jury. We need to be
proactive and not lay down to this Industry.
What I am proposing is simple. We just say NO, period. The FCC has the power of the Federal Government, but we
are stronger, because we have LOVE. We have love for ourselves, our children, our neighbors, and our beautiful
natural environment. Marin is a special place, a garden spot in an insane world. We refuse to be polluted by big
money interests.
To say NO to the rulers takes courage. Courage comes from the French corage meaning 'heart' and 'spirit' and Latin,
cor, meaning ‘more at heart’, ‘inner strength’. We in Marin County have heart and spirit, we are an advanced society
of intelligent beings. We must come together face to face, heart to heart, where our ultimate power of love resides.
The revolution starts now, and I was assured by Marin TV, it will be televised.
From:
To:
Cc:
Subject:U.S. legislators challenge FCC on 5G safety
Date:Tuesday, December 11, 2018 10:52:33 PM
Hello Mr. Mayor, Councilmembers and Staff,
You may well have already learned of this December 3 letter to the FCC from Senator
Richard Blumenthal and Congresswoman Anna Eshoo, but we'd like to be certain that you
know you're in responsible company when you express and exercise precaution about this
untested technology. Also, below the ehtrust link to the letter, please find Dr. Martin Pall's
statement on how EMF/RF radiation causes plants to become more flammable. This critical
info was presented by a speaker at the Dec. 3 San Rafael hearing.
Thank you for your interest in protecting our city and its residents.
Vicki Sievers, EMF Safety Network
https://ehtrust.org/u-s-senator-richard-blumenthal-and-u-s-representative-anna-g-eshoo-
ca-18-letter-to-federal-communications-commission-commissioner-brendan-car-about-5g-
health-hazards/
Pima County, AZ 5G Awareness Coalition Public Forum: Is 5G a Technological
Revolution or a Pandora’s Box?
Nov 17, 2018 — Tucson, AZ Live-Streamed Event
Link to event video
•0:00:15 — Ashley Portman: Start of Program
•0:02:30 — Elizabeth Kelley
•0:24:30 — Dr. Martin Pall at 1:44:54 in the video talks about
terpenes*, produced by plants, in his 90-page document:
https://peaceinspace.blogs.com/files/5g-emf-hazards--dr-
martin-l.-pall--eu-emf2018-6-11us3.pdf
•0:54:35 — Dr. Timothy Schoechle
•1:18:00 — Eric Windheim
•1:37:55 — Questions & Answers
•2:02:00 — Ashley Portman: End of Program
* At 1:48:13 . . . Q: "How do EMFs make plants more flammable?" A: "What EMFS do is that
they work in the cells of plants very similarly to the way EMFS work in the cells of our bodies,
by increasing intracellular calcium, by working on the channels in the plasma membranes in
plants. I have published on that. What happens as a consequence of that is that the plants
make much, much higher levels of terpenes, which are highly volatile and highly flammable.
It's a bit like having a light spray of gasoline on the plants. So they do become more
flammable."