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City of South Lake TahoePlanning Commission
Meeting AgendaThursday, March 19, 2020 at 3:00 PM
City Hall - Council Chambers - 1901 Lisa Maloff Way, South Lake TahoePursuant to the Governor's Executive Order N-25-20 Commissioners may participate via teleconference.
Planning CommissionJenna Palacio, ChairDiana Madson, Vice ChairMason Hibbard, CommissionerKili Ongoy, CommissionerNatalia Wieczorek, Commissioner
A public agenda packet is available for review at the meeting, on the City’s Website atwww.cityofslt.us or at the City Clerk’s Office, City Administrative Center, 1901 Lisa Maloff Way
Any writings or documents provided to a majority of the Planning Commission regarding any open session item on thisagenda will be made available for public inspection during normal business hours at the City Services Center frontcounter located at 1052 Tata Lane, So. Lake Tahoe, California 96150.
The City Council Chambers meeting facility is accessible to people with disabilities. Every reasonable effort will bemade to accommodate any person needing special assistance to attend this meeting. Contact the City Clerk at (530)542-6005 at least 48 hours in advance of the meeting for assistance [28 CFR 35.102.35.104 ADA Title II and Brown ActGovernment Code Sections 54953.2, 54954.1, 54954.2, and 54957.5].
Public ParticipationIn accordance with Executive Order N-25-20 and guidance from the California Department of Public Health ongatherings, remote public participation is allowed in the following ways:
Planning Commission meetings are live-streamed on Channel 21 and on the City’s website at www.cityofslt.us
Public comment will be accepted by email to [email protected] during the meeting, prior to the close of publiccomment on an item, and read into the record during public comment.
Public comment may be submitted by telephone during the meeting, prior to the close of public comment on an item,by calling (530) 318-1461 at the time indicated by the Chair.
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Call to Order/Pledge of Allegiance
Roll Call
Public CommunicationsThis is the public's opportunity to speak on any topic NOT LISTED on this agenda. Comments shall be limited to three(3) minutes. In accordance with the Brown Act, the Planning Commission cannot deliberate or vote on any matterraised under public communications but may briefly respond to statements made or questions posed. (GovernmentCode Sections 54954.2)
Planning Commission Reorganization
1. Selection of Planning Commission Chair and Vice ChairRequested Action / Suggested Motions: 1) Pass a Motion appointing a Planning CommissionChair; and, 2) Pass a Motion appointing a Planning Commission Vice Chair.
ConsentPublic Comment - This is the public's opportunity to speak on any topic listed on the Consent Agenda. Commentsshall be limited to three (3) minutes.
The consent agenda consists of items of a repeating or routine nature considered under a single action. AnyCommissioner may have an item on the consent agenda removed and considered separately upon request.
Pass a Motion to adopt the Consent Agenda in one motion except as indicated at each item.
2. February 20, 2020 Planning Commission Meeting MinutesRequested Action / Suggested Motions: Pass a Motion02 02 2020 Planning Commission Minutes.docx
3. 2020 Meeting CalendarRequested Action / Suggested Motions: Pass a Resolution establishing the Date, Time andPlace of Regular Planning Commission Meetings 01-Staff Report Meeting Calendar.docx02 - PC Resolution 2019-3203-Resolution 2020
Unfinished Business
4. Ordinance- Wireless Communication Facilities On Private PropertyRequested Action / Suggested Motions: Pass a Resolution recommending the City Councilamend the City Code to add a new Chapter 6.75, Wireless Facilities on Private Property, toTitle 6 (Development Services) and find the project exempt from the California EnvironmentalQuality Act under CEQA Guidelines section 15061(b)(3).
01-Staff_Report_WCF_Ordinance_20200319.docx2
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Attachment_02_PCResolution_20200319.docx03_WCF_Ordinance_Clean_20200319.docx04_WCF_Ordinance_Redlined_20200319.pdf04_BufferMaps.pdf05_Preferred.v.Discouraged_Locations .pdf06_WCF_PlanningCommission_Staff Report_20200220.docx07_PC_Presentation_20200220.pdf08_PublicComment_Aaron_PC_20200225.pdf09_PublicComment_Benedict_PC_20200225.pdf10_PublicComment_Wallisch_20200306.pdf11_PublicComment_VerizonWireless_2202020.pdf12_PublicComment_AT&T_20200306.pdf13_PublicComment_T-Mobile_20200306.pdf
New Business
5. South Lake Tahoe Objective Residential Development and Design StandardsRequested Action / Suggested Motions: Receive presentation.01-Staff Report
Planning Commission Reports
Staff Reports
AdjournmentI, Christine Grissom, Administrative Clerk I for the City of South Lake Tahoe, declare that the foregoing agenda for theThursday, March 19, 2020 meeting of the City of South Lake Tahoe Planning Commission was posted and available forreview on Friday March 13, 2020, at Development Services Department 1052 Tata Lane, South Lake Tahoe, CA 96150.The agenda was also available on the city website at https://www.cityofslt.us/. Signed March 13, 2020
Christine Grissom, Administrative Clerk I
Note: The decision of the Planning Commission to approve a design review permit or grant a use permit or a variancemay be appealed to the City Council. This appeal shall be filed with the City Clerk within fifteen (15) days from the dateof the decision and requires a payment of applicable fees.
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City of South Lake TahoePlanning Commission Meeting and Tahoe Regional
Planning Agency Hearings Officer Meeting Minutes
Thursday, February 20, 2020 at 3:00 PMCity Hall - Council Chambers - 1901 Lisa Maloff Way, South Lake Tahoe
Planning CommissionJenna Palacio, ChairDiana Madson, Vice ChairMason Hibbard, CommissionerKili Ongoy, CommissionerNatalia Wieczorek, Commissioner
TRPA Hearing OfficerJames Baetge
NOTE: The Meeting Minutes represent actions taken during the meeting of the Planning Commission. Complete Commissioner discussions on Regular Session meeting items can be viewed in archived video recordings on the City’s website at http://www.cityofslt.us.
Call to Order/Pledge of AllegianceAt 3:02 p.m. Chair Palacio called the meeting to order. Palacio then led the pledge of allegiance to the flag.
Roll CallPresent were Chair Palacio and Commissioners Hibbard, Madson, Ongoy, and Wieczorek.
Also present were TRPA Hearing Officer Baetge, Development Services Director Fabino, Assistant City Attorney Roxas and City Clerk Blankenship.
Public CommunicationsNone.
Consent AgendaAction: Moved/Seconded: Madson / PalacioYes: Hibbard, Madson, Ongoy, Palacio, and WieczorekAction: Passed a Motion approving the Consent Agenda.
1. January 16, 2020 Planning Commission Meeting MinutesAction: Approved the January 16, 2020 Planning Commission Minutes.
Unfinished Business - Planning Commission and Tahoe Regional Planning Agency Hearing Officer2. File # 19-251, Special Use Permit for 1100 Keller Rd.
Action: Moved/Seconded: Madson / WieczorekYes: Hibbard, Madson, Ongoy, Palacio, and WieczorekAction: 1) Passed Motion 2020-03 finding the project exempt from CEQA as a categorical exemption under Class 1, Section 15301, Existing Facilities, and Class 3, Section 15303, New Construction or Conversion of Small Structures.
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Action: Moved/Seconded: Madson / OngoyYes: Hibbard, Madson, Ongoy, Palacio, and WieczorekAction:2) Passed Motion 2020-04 making Special Use Findings and approving the Special Use Permit for Employee Housing.Action: Moved/Seconded: Hibbard / MadsonYes: Hibbard, Madson, Ongoy, Palacio, and WieczorekAction:3) Passed Motion 2020-05 making Special Use Findings and approving the Special Use Permit for a reduction in parking.TRPA Hearings Officer Baetge
1) Approved the findings contained in this staff summary, and a finding of no significant environmental effect (Attachment A).
2) Approved the project, based on the staff summary, evidence in the record, subject to the conditions contained in the attached Draft Permit (Attachment B).
The following people addressed the Commission:1) Peter Spelleman, Heavenly2) Vince Arthur, Heavenly
Public comment was heard from the following people:1) Steve Teshara, Tahoe Chamber
Unfinished Business3.
4.
Tourist Core Area Plan/Specific Plan and Plan Area StatementsNote: City staff distributed updated Maps.Action: Moved/Seconded: Palacio/WieczorekYes: Hibbard, Madson, Ongoy, Palacio, and WieczorekAction: 1) Passed Resolution 2020-01 adopting the Final Tourist Core Area Plan/Specific Plan & Plan Area Statements 085 & 092 Boundary Amendment Initial Study/Negative Declaration, with amended maps.Action: Moved/Seconded: Madson/ PalacioYes: Hibbard, Madson, Ongoy, Palacio, and WieczorekAction: 2) Passed a Resolution 2020-02 recommending the City of South Lake Tahoe City Council adopt the Tourist Core Area Plan/Specific Plan & Plan Area Statements 085 & 092 Boundary Amendment, with amended maps.The following people addressed the Commission:
1) Lew Feldman, Pacific Development Group Representative Public comment was heard from the following people:
1) Steve Teshara, Tahoe Chamber2) Robert Aaron
Mobile Vending Ordinance UpdateAction: Moved/Seconded: Hibbard /OngoyYes: Hibbard, Madson, Ongoy, Palacio, and WieczorekAction: Passed Resolution 2020-03 recommending City Council amend City Code Section 4,35, Mobile Vending and 6.70.080, Mobile Vending on Private Property, to modify mobile vendor registration requirements and to exempt mobile vendors and caterers operating at permitted mobile vending private property locations from the registration requirement. Public comment was heard from the following people:
1) Nate Riffle, The Hanger2) Steve Teshara, Tahoe Chamber
5. Planning Commission Meeting Schedule.Action: Planning Commission provided direction to bring back a resolution amending the 2020 meeting Calendar for the months of August, September, and October moving meetings to the second Tuesday.
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New Business6. 2019 General Plan Annual Progress Report
Action: Moved/Seconded: Hibbard / WieczorekYes: Hibbard, Madson, Ongoy, Palacio, and WieczorekAction: Passed Resolution 2020-05 recommending City Council Acceptance of the General Plan Annual Progress Report for Calendar Year 2019.Public comment was heard from the following people:
1) David Jinkens2) Name withheld3) Robert Aaron
7. Ordinance- Wireless Communication Facilities Outside Rights-of-WaySubstitute Motion: To continue this item to the march 19 meeting and directing staff to bring back analysis of different buffer zones with a recommendation for the ordinance, continue discussion with carriers, andPlanning Commission feedback independently by February 29, 2020.Action: Moved/Seconded: Palacio /OngoyYes: Hibbard, Madson, Ongoy, Palacio, and WieczorekPublic comment was heard from the following people:
1) David Jenkins2) Davin Burne3) Robrt Aaron * Written material distributed4) Daniel Ward5) Name Withheld6) Kevin Grunner7) Mr. Grimm8) Ben Lebovitz9) Daniel Benidect10) Cris Viegas
Planning Commission ReportsNone.
Staff Reports1) New Housing Manager Patrick Conway 2) City Council Vision and Strategic Planning Workshop3) Tahoe Prosperity Center, South Shore Housing Assessment and Action Plan Council presentation4) Planning Commissioner American Planning Association Membership
AdjournmentAt 7:02 p.m. Chair Palacio adjourned the meeting.
_______________________________ _______________Jenna Palacio, Chair Date
Attest:
_______________________________Christine Grissom, Administrative Clerk I
Note: The decision of the Planning Commission to approve a design review permit or grant a use permit or a variance may be appealed to the City Council. This appeal shall be filed with the City Clerk within fifteen (15) days from the date of the decision and requires a payment of applicable fees
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Planning Commission Agenda Report – March 19, 2020 Page 1 of 2
City of South Lake TahoeReport to Planning Commission
Meeting Date: March 19, 2020
Title: 2020 Planning Commission Meeting Calendar
Location: Citywide
Responsible Staff Member: Kevin Fabino, Director of Development Services, (530) 542-6025
Background:
On December 12, 2019, during Planning Commission’s deliberations on this matter, Members had identified several dates which would precluding the full body from attending the scheduled meeting date. The Planning Commission then requested this item to be brought back to the Planning Commission for further consideration and possible adjustment in February.
On February 20, 2020, staff sought and was provided direction resolving the identified scheduling conflicts, which precluded the full body from attending the scheduled meeting.
Issue and Discussion:
The Planning Commission’s direction has been incorporated into the proposed 2020 Planning Commission Schedule of Regular Meetings.
2020 Planning Commission Regular Meeting ScheduleCity Hall – City Council Chambers
1901 Lisa Maloff Way, South Lake TahoeMeeting commence at 3:00 p.m.
January 16, 2020
February 20, 2020
March 19, 2020
April 16, 2020
May 21, 2020
June 18, 2020
July 16, 2020
August 13, 2020
September 10, 2020
October 8, 2020
November 19, 2020
December 17, 2020
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Planning Commission Agenda Report – March 19, 2020 Page 2 of 2
Environmental Considerations – California Environmental Quality Act:
The establishing of Date, Time and Place for Regular Planning Commission Meetings is not a “project”pursuant the California Environmental Quality Act (CEQA), Section 15378, therefore, no further environmental analysis is required at this time.
Financial Implications:
The establishing of Date, Time and Place for Regular Planning Commission Meetings will have no foreseeable impact on the City’s 2019-2020 General Funds.
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Resolution 2019-XXX March 19, 2020 Page 1 of 2
Adopted by the City of South Lake TahoePlanning Commission
Resolution 2020-XXX
March 19, 2020
Establishing the Date, Time and Place of Regular Planning Commission Meetings(replaces Resolution 2019-032)
BACKGROUND
A. The Planning Commission has historically met in the City Council Chambers, 1901 Lisa Maloff Way, the Second Thursday of each month, and the meetings commence at 3:00 p.m.; and
B. It is the desires of the Planning Commission of the city of South Lake Tahoe to establish the day, time and place of its regular meetings to provide the best possible service to the residents of City; and
BASED ON THE FACTS SET FORTH IN THE BACKGROUND, BE IT RESOLVED, that the Planning Commission of the City of South Lake Tahoe: 1. The recitals set forth above are true and correct.
2. The Planning Commission hereby rescinds Resolution 2019-32, A Resolution establishing the Date, Time and Place of Regular Planning Commission Meetings, adopted December 12, 2019.
3. The Planning Commission shall hold its regular meetings, at 3:00 p.m. The Planning Commission shall be held in the City Council Chambers, 1901 Lisa Maloff Way, South Lake Tahoe, California
4. The Planning Commission’s adopts the following meeting dates;
January 16, 2020
February 20, 2020
March 19, 2020
April 16, 2020
May 21, 2020
June 18, 2020
July 16, 2020
August 13, 2020
September 10, 2020
October 8, 2020
November 19, 2020
December 17, 202010
Resolution 2019-XXX March 19, 2020 Page 2 of 2
5. The resolution shall take effective immediately following the Planning Commission’s action on the matter.
Adopted by the City of South Lake Tahoe Planning Commission on March 19, 2020 by the following vote:
Yes
No
Absent
Abstain
_______________________________________ _______________________Jenna Palacio, Chairperson Date
Attest:
_______________________________________Kevin E. Fabino, Secretary
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Planning Commission Agenda Report March 19, 2020 Page 1 of 3
City of South Lake TahoeReport to Planning Commission
Meeting Date: March 19, 2020
Title: Ordinance Regulating Wireless Facilities on Private Property
Location: Citywide
Responsible Staff Member: Courtney Weiche, Assistant Planner (530) 542-6022
Background:
On February 20, 2020, the Planning Commission held a public hearing to consider a draft ordinance regulating wireless facilities on private property. The staff report and presentation for the public hearing is included as Attachment 06 and 07 for reference.
At the public hearing, the Planning Commission received a staff presentation,considered public comment, deliberated and directed staff to:
1. Reach out to industry representatives on recommendations and comments received on the draft ordinance.
2. Provide analysis of buffers from 200' incrementally up to 1,500' from residential, school, and historic properties and recommend an appropriate buffer distance as a “discouraged” location.
3. Review all public comments received and incorporate staff recommendations in a revised ordinance.
Issue and Discussion:
The following is a summary of staff's response to the Planning Commission’s direction.
1. On March 2, 2020, staff met with several industry representatives from both Verizon and AT&T to review comments and recommendations on the draft ordinance. AT&T and T-Mobile provided additional comments in writing on March 6, 2020. The draft ordinance takes into consideration comments received. Industry comments are included as Attachments 11, 12 and 13.
2. As requested, staff has prepared maps analyzing various buffer distances from 200 feet to 1,500 feet, see Attachment 04.
The intent of establishing “preferred” and “discouraged” locations is to provide the incentive of a more streamlined permitting process to locate wireless facilities in “preferred” locations. As shown on the maps, increasing the buffer substantially reduces the area of “preferred” locations, which undermines that regulatory purpose.
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Planning Commission Agenda Report March 19, 2020 Page 2 of 3
If all or most of the City is in a “discouraged” location, then there is little incentive to site facilities in “preferred” locations. As a result, staff is recommending maintaining the buffer as originally proposed.
3. Staff also reviewed and considered public testimony and comments received, including Commissioner input. (*Note, additional public comment was submitted after the February 20 public hearing and is included as Attachments 08, 09 & 10 for the record.) To the extent feasible, staff has revised the draft ordinance to address the recommendations and input from the public, industry leaders, and Commissioners.
In addition to the Commission’s direction, the revised ordinance also expands the “preferred locations” to include additional commercially zoned districts in the Tahoe Valley Area Plan, Tourist Core Area Plan, Bijou/Al Tahoe Community Plan and Plan Area Statement 103, Sierra Tract Commercial, see Attachment 05. The purpose of the expansion is to create more opportunities to locate wireless communication facilities outside of residentially zoned districts.
In response to the request to clarify height standards, the maximum height has been revised to limit all wireless facilities (not just monopines) to no more than 10 feet above the average height of mature natural trees within the vicinity or the maximum height allowed by the TRPA Code; whichever is more restrictive. More specifically, TRPA Code Section 37.6.2, Additional Height for Certain Structures, states “The maximum height specified in subsection 37.6.1 may be increased for communication towers, antennas, utility poles, special features of public safety facilities, ski lift towers, wind turbines/renewable power facilities, and other similar projects, excluding buildings and signs, up to the minimum height necessary to feasibly implement such projects. Additional height may be approved under the provisions of this subsection if TRPA makes findings 4 and 7 as set forth in Section 37.7.”
Environmental Considerations:
The proposed City Code amendment is exempt from environmental review under CEQA, pursuant to Section 15061(b)(3), Review for Exemptions – Common Sense Rule, in that it can be seen with certainty that there is no possibility for this action to have a significant effect on the environment, and individual development applications will be reviewed under CEQA as they are proposed.
Adoption of this Ordinance would enact changes in land use regulations adding additional regulations and siting requirements on wireless facilities that would reduce their impacts, and it can be seen with certainty that its adoption will not have a significant effect on the environment because it will not allow for the development of any new or expanded wireless telecommunication facilities anywhere other than where they were previously allowed under existing federal, state and local regulations.
Financial Implications:
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Planning Commission Agenda Report March 19, 2020 Page 3 of 3
The fiscal impacts associated with the ordinance are the costs associated with staff time to prepare the ordinance and staff report. Once the regulations are adopted and implemented, the application fees for a special use permit and design review would cover the cost of the discretionary approvals.
Policy Implications:
Adoption of the proposed Ordinance is consistent with the City's General Plan. The City's General Plan provides goals and policies to preserve community character, aesthetics and environmental characteristics while also maintaining a strong, healthy economy and assuring the health and safety of the residential character of the community. Adoption of this Ordinance would further these goals and objectives by providing uniform regulations and standards for wireless facilities while reducing potentially negative impacts to the extent feasible.
Although the adopted City General Plan does not provide policy direction specific to wireless facilities, the following goals and policies may be relevant to the issue:
Policy ED-1.2: Economic and Environmental Balance. The City shall strive to maintain a balance between economic health and environmental health through careful and efficient planning.
Goal PQP-8 To promote the provision of adequate levels of utility service by private companies and to ensure that these are constructed in a fashion that minimizes their negative effects on surrounding development and maximizes energy efficiency.
Policy PQP-8.3: Promote Technology: The City shall promote technological improvements and upgrading of utility services.
Policy PQP-8.5: Digital Communications Infrastructure: The City shall facilitate installation of digital communications infrastructure.
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Resolution 2020-04 March 19, 2020 Page 1 of 2
Resolution 2020-04
Adopted by the City of South Lake TahoePlanning Commission
March 19, 2020
RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF SOUTH LAKE TAHOE,RECOMMENDING THAT THE CITY COUNCIL AMEND THE CITY CODE TO ADD A NEW CHAPTER 6.75, WIRELESS FACILITIES ON PRIVATE PROPERTY, TO TITLE 6 (DEVELOPMENT SERVICES)
BACKGROUND
A. On November 20, 2019, the City held a community workshop to discuss possible standards for regulating future wireless facilities.
B. On January 16, 2020, a joint Planning Commission and City Council Special Meeting was held to review possible standards and regulations for a draft ordinance.
C. On February 20, 2020, the Planning Commission received a staff presentation, considered public comment, deliberated and directed staff to incorporate input and direction received.
D. The City recognizes its responsibilities under the Federal Telecommunications Act of 1996 and state law and believes that it is acting consistently with the current state of the law in ensuring that irreversible development activity does not occur that would harm the public health, safety, or welfare. The City does not intend that this Ordinance prohibit or have the effect of prohibiting the provision of telecommunications service; rather, the Ordinanceincludes appropriate regulations to ensure that the installation, augmentation, and relocation of wireless communications facilities are conducted in such a manner as to lawfully balance the legal rights of applicants under the Federal Telecommunications Act and the California Public Utilities Code while, at the same time, protect to the full extent feasible against the safety and land use concerns described herein.
E. The adoption of this Ordinance is consistent with the City's General Plan. The City's General Plan provides goals and policies to preserve community character, aesthetics and environmental characteristics while also maintaining a strong, healthy economy and assuring the health and safety of the residential character of the community. Adoption of this Ordinance would further these goals and objectives by providing uniform regulations and standards for wireless facilities while reducing potential negative impacts to the extent feasible.
F. Government Code Section 65853 et seq. requires the Planning Commission to conduct a public hearing and provide a written recommendation to the City Council on any new zoning ordinance or regulation of the use of land.
G. On March 19, 2020, the Planning Commission conducted a public hearing and considered the city code amendment to add a new Chapter 6.75, Wireless Facilities on Private Property, to Title 6 (Development Services).
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Resolution 2020-04 March 19, 2020 Page 2 of 2
BASED ON THE FACTS SET FORTH IN THE BACKGROUND, BE IT RESOLVED, that the Planning Commission of the City of South Lake Tahoe:
1. The purpose of this Ordinance is to provide uniform and comprehensive standards, regulations and permitting requirements for the installation of wireless facilities in the City; and
2. The Planning Commission finds that the action taken on this matter and recommendations made after consideration of the whole administrative record are consistent with Government Code Section 65853 et seq.; and
3. The Planning Commission recommends that the City Council adopt an ordinance approving the City Code Amendment included as Attachment 03 of this resolution, and
4. The Planning Commission recommends that the City Council find that the amendments are categorically exempt from the California Environmental Quality Act, Statue and Guidelines, pursuant to California Code of Regulations Section 15061(b)(3), Review for Exemptions –Common Sense Rule, and
5. This resolution is effective immediately upon adoption.
Adopted by the City of South Lake Tahoe Planning Commission on March 19, 2020 by the following vote:Yes: No:Absent:Abstain:
________________________ Date:_________
Jenna Palacio, Chair
Attest:
________________________
Joanne McDonough, Assistant City Clerk
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Ordinance 2020-XXX March 19, 2020 Page 1 of 24
Ordinance 2020-XXX
Adopted by the City of South Lake TahoeCity Council
May 12, 2020
An Ordinance Adding Chapter 6.75 to the South Lake Tahoe City Code Regarding Regulation of Wireless Facilities on Private Property
FINDINGS
A. To date, the City has not adopted regulations specific to wireless communication facilities but instead has applied generally applicable permit requirements to this type of facility.
B. The proposed ordinance is intended to address community concerns and increase local control over regulation of wireless facilities in compliance with federal and state law.
C. The City held a community workshop on November 20, 2019, a joint Planning Commission and City Council Special Meeting on January 16, 2020, and a Planning Commission meeting on February 20, 2020, to review possible standards and regulations for a draft ordinance, and the proposed ordinance incorporates input and direction received.
D. The Telecommunications Act, 47 U.S.C. § 332(c)(7)(B), preserves local government zoning authority as it relates to location and siting, but limits local regulations in three key ways: (1) a local ordinance may not unreasonably discriminate among providers of functionally equivalent services; (2) a local ordinance may not prohibit or effectively prohibit service; and (3) a local ordinance may not regulate based on environmental impacts from radio frequency emissions.
Now, Therefore, the City Council of City of South Lake Tahoe does ordain as follows:
SECTION 1. Title 6 of the South Lake Tahoe City Code is amended by adding a new Chapter 6.75 (Wireless Facilities on Private Property) as follows:
6.75 Wireless Facilities on Private Property
6.75.010 Purpose and Intent
6.75.020 Definitions
6.75.030 Applicability
6.75.040 Required Permits and Other Approvals
6.75.050 Administrative Orders and Regulations 17
Ordinance 2020-XXX March 19, 2020 Page 2 of 24
6.75.060 Permit Applications
6.75.070 Public Notice
6.75.080 Approvals, Denials and Appeals
6.75.090 Location Standards
6.75.100 Design Standards
6.75.110 Standard Conditions for Approved Permits
6.75.120 Amortization
6.75.130 Special Exceptions for Federal or State Preemption
6.75.140 Violations
6.75.010 Purpose and Intent
A. The City of South Lake Tahoe intends this chapter to establish reasonable, uniform and comprehensive standards and procedures for 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 chapter are intended to, and should be applied to, consistent with federal and state 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. This chapter is also intended to reflect and promote the community interest by (1) ensuring that the balance between public and private interest is maintained on a case-by-case basis; (2) protecting the city’s visual character from potential adverse impacts or visual blight created or exacerbated by wireless 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 chapter 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.
6.75.020 Definitions
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Ordinance 2020-XXX March 19, 2020 Page 3 of 24
The abbreviations, phrases, terms and words used in this chapter will have the following meanings assigned to them unless context indicates otherwise. Undefined phrases, terms or words in this chapter will have their ordinary meanings.
The definitions in this chapter shall control over conflicting definitions for the same or similar abbreviations, phrases, terms or words as may be defined in the South Lake Tahoe City Code. However, if any definition assigned to any phrase, term or word in this chapter conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.
“amateur station” means the same as defined by the FCC in 47 C.F.R. § 97.3, as may be amended or superseded, which defines the term as “a station in an amateur radio service consisting of the apparatus necessary for carrying on radiocommunications.” This term includes amateur radio antennas and related facilities used for amateur radio services.
“approval authority” means the city official or body responsible for application review and vested with authority to approve or deny such applications.
“Director” means the Director of Development Services of the City of South Lake Tahoe or the Director’s designee.
“eligible facilities request” means the same as defined in 47 U.S.C. § 1455(a)(2), as may be amended or superseded, and as interpreted by the FCC in 47 C.F.R. § 1.6100(b)(3), as may be amended or superseded.
“FCC” means the Federal Communications Commission, as constituted by the Communications Act of 1934, Pub. L: 73-416, 48 Stat. 1064, codified as 47 U.S.C. §§ 151 et seq. or its duly appointed successor agency.
“OTARD” means any “over-the-air reception device” subject to 47 C.F.R. §§ 1.4000 et seq., as may be amended or superseded, which generally includes satellite television dishes and certain fixed wireless antennas not greater than one meter in diameter.
“personal wireless service facilities” mean the same as defined in 47 U.S.C. § 332(c)(7)(C)(ii), as may be amended or superseded, which defines the term as facilities that provide personal wireless services.
“personal wireless services” mean 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.
“RF” means radio frequency.
“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.
“shot clock” means the presumptively reasonable time defined by the FCC in which a state or local government must act on an application or request for authorization to place, construct or modify personal wireless service facilities.
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Ordinance 2020-XXX March 19, 2020 Page 4 of 24
“small wireless facility” means the same as defined by the FCC in 47 C.F.R. § 1.6002(l), as may be amended or superseded.
“stealth” means concealment techniques that completely screen all transmission equipment from public view and architecturally integrate the macro facility into the built environment such that, given the particular context, the average, untrained observer would not recognize the structure as a macro facility. Stealth concealment techniques include, without limitation: (1) transmission equipment placed completely within existing or replacement architectural features such that the installation causes no visible change in the underlying support structure; and (2) new architectural features that mimic or blend with the underlying or surrounding structures in style, proportion and construction quality.
“TRPA Code” means the Tahoe Regional Planning Agency Code of Ordinances.
“wireless facility” means a personal wireless service facility.
6.75.030 Applicability
A. General. This chapter applies to all requests for the city’s regulatory authorization to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy wireless facilities on private property (whether owned by a private party or public entity) within the city’s territorial and jurisdictional boundaries, unless expressly exempted pursuant to this section 6.75.030.
B. Wireless Facilities on City Property. This chapter applies to permit applications for wireless facilities on property or structures owned or controlled by the city; provided, however, that this chapter does not govern whether or under what terms and conditions the city would lease, license or otherwise allow a wireless facility on such property or structures.
C. Small Wireless Facilities. Notwithstanding anything in this chapter to the contrary, all small wireless facilities are subject to a permit as specified in a city council policy, which may be adopted, amended and/or repealed by a resolution of the city council. All small wireless facilities shall comply with the city council’s policy. If the city council policy is repealed and not replaced, an application for a small wireless facility shall be processed pursuant to this chapter.
D. Eligible Facilities Requests. Notwithstanding anything in this chapter to the contrary, all eligible facilities requests and other applications submitted for approval pursuant to Section 6409 are subject to a permit as specified in a city council policy, which may be adopted, amended and/or repealed by a resolution of the city council. All eligible facilities requests and other applications submitted for approval pursuant to Section 6409 shall comply with the city council’s policy. If the city council policy is repealed and not replaced, all eligible facilities requests and other applications submitted for approval pursuant to Section 6409 shall be processed pursuant to this chapter.
E. Other Exemptions. Notwithstanding anything in this chapter to the contrary, this chapter does not apply to the following:
1. wireless facilities operated by the city for public purposes;
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2. wireless facilities installed completely indoors and used to extend personal wireless services into a business or the subscriber’s private residence, such as a femto cell orindoor distributed antenna system;
3. OTARD antennas;
4. antennas and related transmission equipment used in connection with a duly authorized amateur station; or
5. wireless facilities or other transmission equipment owned and operated by CPUC-regulated electric companies for use in connection with electrical power, generation, transmission and distribution facilities subject to CPUC General Order 131-D.
6.75.040 Required Permits and Other Approvals
A. Design Review Permit. A design review permit, subject to the director’s prior review and approval, is required for all wireless facilities on private property in preferred locations as described in section 6.75.090 and do not require a special exemption under section 6.75.130.
B. Use Permit. A use permit, subject to the planning commission’s prior review and approval, is required for all wireless facilities on private property that does not qualify for a design review permit.
C. Referral. The director may refer any application for a design review permit to the planning commission when the director, in the director’s discretion, determines that the application implicates a significant planning concern.
D. Other Permits and Regulatory Approvals. In addition to any permit or approval required under this chapter, the applicant must obtain all other permits and regulatory approvals (such as compliance with the California Environmental Quality Act) as may be required by any other federal, state, regional or local government agencies, which includes without limitation other any permits and/or approvals issued by other city departments or divisions. Furthermore, any permit or approval granted under this chapter or deemed granted or deemed approved by law shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or approvals.
6.75.050 Administrative Orders and Regulations
In addition to the requirements in this chapter, the director may adopt such orders or regulations as the director deems necessary or appropriate to protect and maintain public health, safety, welfare and convenience. All wireless facilities must conform to all applicable orders and regulations issued by the director, unless the director, in the director’s discretion, grants a prior written waiver to deviate, in whole or in part, any such order or regulation. The director shall develop and publish guidelines to implement the waivers authorized by this section.
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6.75.060 Permit Applications
A. Application Required. The approval authority shall not approve any requests for authorization to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy wireless facilities except upon a complete and duly filed application consistent with this section and any other written rules or requirements the city or the director may establish from time to time in any publicly-stated format.
B. Application Content. All applications for a permit must include all the information and materials required by the director for the application. The city council authorizes the director to develop, publish and from time to time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the director finds necessary, appropriate or useful for processing any application governed under this chapter. All such requirements must be in written form and publicly stated and available to provide applicants with prior notice. Notwithstanding anything in this chapter to the contrary, all applications shall, at a minimum, require the applicant to demonstrate that the proposed project will be in planned compliance with all applicable health and safety laws, regulations or other rules, which includes without limitation all building codes, electric codes and all FCC rules for human exposure to RF emissions.
C. Application Submittal. Unless the director establishes an alternative submittal procedure pursuant to section 6.75.050, all applications under this chapter must be submitted to the city at a pre-scheduled appointment with the department. Applicants may generally submit one application per appointment but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. The department shall use reasonable efforts to provide the applicant with an appointment in writing within five working days after the department receives a written request and, if applicable, confirms that the applicant complied with the pre-submittal conference requirement. Any application received without an appointment, whether delivered in-person, by mail or through any other means, will not be considered duly filed.
D. Optional Pre-application Conferences. The department shall provide prospective applicants with the opportunity to schedule and attend a pre-application conference with department staff. The city strongly encourages pre-application conferences for all proposed projects that: (1) require planning commission approval; (2) the prospective applicant believes will qualify as a stealth facility; and/or (3) involve any wireless facilities proposed to be located in or within 200 feet from a residential land use category. The pre-application conference 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 or existing wireless facility, such as compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other city departments and/or divisions 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 department 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-application conference. 22
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E. Community Meetings. The city strongly encourages applicants to conduct community meetings for all proposed projects requiring a use permit. Community meetings may be conducted before or after submittal. Public notice for a community meeting should be given in the manner described in section 6.75.070.C, except that the Applicant is responsible for the cost and implementation of noticing.
F. Applications Deemed Withdrawn. To promote efficient review and timely decisions, any application governed under this chapter will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the department within 90 calendar days after the department deems the application incomplete in a written notice to the applicant. The director, in the director’s discretion, may grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the 90th day that shows good cause to grant the extension. Good cause for an extension shall include, without limitation, delays due to circumstances outside the applicant’s reasonable control.
G. Peer and Independent Consultant Review. The city council authorizes the director to, in the director’s discretion, select and retain an independent consultant with specialized training, experience and/or expertise in telecommunications issues satisfactory to the director in connection with any permit application. The director may request an independent consultant review on any issue that involves specialized or expert knowledge in connection with wireless facilities deployment or permit applications for wireless facilities, which include without limitation: (A) permit application completeness and/or accuracy; (B) pre-construction planned compliance with applicable regulations for human exposure to RF emissions; (C) post-construction actual compliance with applicable regulations for human exposure to RF emissions; (D) whether and to what extent a proposed project will comply with applicable laws; (E) the applicability, reliability and/or sufficiency of any information, analyses or methodologies used by the applicant to reach any conclusions about any issue with the city’s discretion to review; and (F) any other issue identified by the director that requires expert or specialized knowledge, which includes, without limitation, any issues related to an exception requested by the applicant pursuant to section 6.75.130. The director may request that the independent consultant prepare written reports, testify at public meetings, hearings and/or appeals and attend meetings with city staff and/or the applicant. Subject to applicable law, in the event that the director elects to retain an independent consultant in connection with any permit application, the applicant shall be responsible for the actual and reasonable costs in connection with the services provided, which may include actual and reasonable costs incurred by the independent consultant to attend and participate in any meetings or hearings directly related to the permit application. The director may also recover the reasonable and actual costs incurred to administer the consultant contract. Before the independent consultant may perform any services, the applicant shall tender to the city a deposit in an amount equal to the estimated actual and reasonable cost for the services to be provided, as determined by the director. The director may request additional deposits as reasonably necessary to ensure sufficient funds are available to cover the reasonable costs in connection with the independent consultant’s services. If the deposit exceeds the total costs for consultant’s services, the director shall promptly return any unused funds to the applicant after the wireless facility has been installed and passes a final inspection by the director or his or her designee. If the reasonable costs for the independent consultant’s services exceed the deposit, the director shall invoice the applicant for the balance. The city shall not issue any building permit to any applicant with any unpaid invoices.
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6.75.070 Public Notice
A. Posted Notice. Within 10 business days after an application is duly filed with the department, the applicant shall (1) post notice on the proposed project site in a location near to and visible from the public rights-of-way and (2) provide the department with evidence that such notice has been posted. The applicant is responsible for maintaining and replacing the sign as necessary during the duration of the application review process until the approval authority acts on the application. The sign shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for the duration of the notice period. The sign shall be at least two feet wide by three feet tall, placed in a conspicuous location at the project site where it will be visible from the nearest public right-of-way. The sign shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians or other users in the public right-of-way. The city encourages applicants to consult with the department on placement locations to avoid any potential hazards. In addition to the content requirements in section 6.75.070.D, the posted notice shall include a URL for the city’s website page where application information can be obtained once uploaded in accordance with section 6.75.070.B.
B. Website Notice. Within 10 business days after an application is duly filed with the department, the department shall post notice on the city’s website.
C. Public Hearing Notice. At least 10 calendar days before any public hearing in connection with an application for a wireless facility, the director shall: (1) mail notice to all real property owners as shown on the most recent equalized assessment roll within 500 feet from the property on which the wireless facility is proposed; (2) mail notice to each physical address for all properties within 500 feet from the property on which the wireless facility is proposed; and (3) publish notice in at least one newspaper of general circulation within the city. In addition to the content requirements in section 6.75.070.D, public hearing notices shall also include the date, time and location for the public hearing and the URL to the project webpage on the city’s website.
D. Notice Content. In addition to any other requirements, notices required under sections 6.75.070.A, B and C shall include: (1) a general project description with photo simulations; (2) the applicant’s identification and contact information as provided on the application submitted to the city; (3) contact information for the department for interested parties to request additional information and submit comments; and (4) a statement as to whether a public hearing will be required for the application or not.
E. Decision Notices. Within five calendar days after the approval authority acts on an application governed under this chapter or before the shot clock expires (whichever occurs first), the director shall send a written notice to the applicant. If the approval authority denies the application (with or without prejudice), the written notice to the applicant must contain (1) the reasons for the denial and (2) instructions for how and when to file an appeal.
6.75.080 Approvals, Denials and Appeals24
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A. Required Findings. The approval authority may approve wireless communication facility applications only when the approval authority makes all the following findings:
1. the proposed wireless facility is in a preferred location; or the proposed wireless facility is in a discouraged location and the applicant has demonstrated through a meaningful comparative analysis that no more preferred location or support structure would be technically feasible and potentially available;
2. the proposed wireless facility complies with all applicable development standards in this code and any other applicable regulations;
3. the applicant has provided a signed statement that indicates its willingness to allow other carriers and site operators to collocate transmission equipment with the proposed wireless facility, to the extent such facility or portions thereof are owned or controlled by the applicant, whenever technically feasible and aesthetically desirable in accordance with applicable provisions in this code;
4. the applicant has demonstrated that the proposed wireless facility will comply with all applicable FCC regulations and guidelines for human exposure to RF emissions and will not, either individually or cumulatively with other transmitters in the vicinity, result in RF exposures that exceed the FCC’s maximum permissible exposure level for the general population; and
5. In addition, use permit applications require the approval authority to make all the findings required for a use permit in accordance with section 6.55.610.B of this code.
B. Conditional Approvals; Denials without Prejudice. Subject to any applicable federal or state laws, nothing in this chapter is intended to limit the approval authority’s ability to conditionally approve or deny without prejudice any application governed under this chapter as may be necessary or appropriate to protect and promote the public health, safety and welfare, and to advance the goals or policies in the general plan and any applicable specific plan, this code, or this chapter.
C. Appeals. Within 10 calendar days after the approval authority approves or denies any application under this chapter, any interested person may file an appeal for cause in accordance with the provisions in chapter 2.35 of this code; provided, however, that (1) the notice provisions in this chapter shall control over those in chapter 2.35 and (2) appeals from an approval shall not be permitted when based solely on the environmental effects from RF emissions that are compliant with applicable FCC regulations and guidelines.
6.75.090 Location Standards
A. Preface to Location Standards. This section set out criteria to determine the preferredlocation and support structure for wireless facilities. The city considers the most preferred location and support structure to be the least intrusive means for an applicant to provide its services to the public. Subsection B describes general plan areas and land use designations where wireless facilities are generally most preferred. Subsection C provides specific locations where wireless facilities are discouraged. It is possible for a proposed facility to be simultaneously in a “preferred” and “discouraged” location, such as a commercial use within
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the Tahoe Valley Area Plan that happens to be within 200 feet from an historic structure. In such cases, the location shall not be deemed to be a “preferred” location. Finally, in situations where the applicant must consider alternative sites, preferences for facilities on land use classifications and support structures are ranked in subsection D and subsection E, respectively.
B. Preferred Locations. All applicants must, to the extent technically feasible and potentially available, propose new facilities in a preferred location. No alternative sites analysis is required for new stealth facilities proposed in any preferred location. For all other new facilities, the approval authority shall consider whether any more preferred location would be technically feasible or potentially available. The following locations are all considered “preferred locations” so long as the site is not simultaneously in a discouraged location under section 6.75.090.C:
1. parcels within the South Y Industrial Community Plan;2. parcels within the following zoning districts of the Tahoe Valley Area Plan: Town Center
Core, Town Center Mixed-Use Corridor, Town Center Gateway, and Commercial Mixed-Use Services;
3. parcels within the following zoning districts of the Bijou/Al Tahoe Community Plan: District #1, District #2, District #3, and portions of District #4 (Recreation Center and Campground and the Lake Tahoe Community College);
4. parcels within the following zoning districts of the Tourist Core Area Plan: Tourist Center, Tourist Center Mixed-Use, Tourist Center Mixed-Use Corridor, and Recreation.
5. parcels within plan areas with a land use designation as Recreation or Conservation; 6. parcels within Pan Area Statement 103 (Sierra Tract Commercial); and7. parcels within Plan Area Statement 116 (Airport).
C. Discouraged Locations. When an application involves a new facility in a discouraged location, the approval authority shall consider whether any alternative site within a preferred location would be technically feasible and potentially available. If no such alternative exists, the approval authority shall consider whether any less discouraged location would be technically feasible and potentially available. The following locations are all “discouraged” and ordered from most discouraged to least discouraged:
1. any location within where the facility would be 200 feet from a school, a structure approved for residential use, a designated historic property, structure, or district, or any property, structure, or district eligible for historic designation;
2. any parcel with a General Plan Land Use Designation as Low-Density Residential or High-Density Residential;
D. Land Use Preferences. Within any area plan, community plan, or plan area, applicants must propose new facilities on parcels with the most preferred land use designation whenever technically feasible and potentially available. Applications must include a written justification, supported by factual and verifiable evidence, that shows no location with a more preferred land use designation is technically feasible and potentially available, unless the proposed facility is in the most preferred land use designation or is a stealth facility in a preferred location. The following General Plan land use designations are ranked from most preferred to least preferred:
1. Special District; 26
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2. Recreation (R); 3. Conservation (C); 4. Town Center; (TC)5. Tourist Center (TS-C)6. Neighborhood Center (NC); 7. High-Density Residential (HDR); and8. Low-Density Residential (LDR).
E. Support Structures. The approval authority shall consider whether any more preferred support structure would be technically feasible and potentially available. The approval authority may require the applicant to use a more preferred support structure when the alternative is technically feasible and potentially available. The city’s preferences for support structures are as follows, order from most preferred to least preferred:
1. collocation on an existing structure with existing wireless facilities;2. installations on a rooftop;3. installations on a building facade;4. installations on a new or replacement pole within the public rights-of-way;5. installations on a new freestanding pole within the public rights-of-way;6. installations on a new freestanding structure outside the public rights-of-way.
6.75.100 Design Standards
A. Concealment. All wireless facilities must be concealed to the maximum extent feasible with design elements and techniques that mimic or blend with the underlying support structure, surrounding environment and adjacent uses.
B. Overall Height. To maintain a natural appearance, wireless facilities may not exceed more than 10 feet above the average height of mature natural trees within the vicinity or the maximum height allowed by the TRPA Code; whichever is more restrictive. If the applicant plants new natural trees around the proposed wireless facility, the approval authority shall consider the future mature height of such trees when evaluating compliance with this standard.
C. Setbacks. All wireless facilities must be compliant with all setback requirements applicable to structures on the underlying parcel.
D. Fall Zone. All freestanding towers outside the public rights-of-way must be setback from habitable structures approved for residential occupancy by a distance equal to one horizontal foot for every foot of the tower height, or the distance from the highest engineered break point to the top of the tower. The approval authority may waive the setback requirement for freestanding towers that meet Class 3 structural standards for critical infrastructure as defined in the most current revision of the ANSI/TIA-222 Structural Standard for Antenna Supporting Structures, Antennas and Small Wind Turbine Support Structures.
E. Noise. All wireless facilities must be compliant with all applicable noise regulations, which includes, without limitation, any noise regulations in the TRPA Code. The approval authority may require the applicant to incorporate appropriate noise-baffling materials and/or noise-mitigation strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations.
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F. Landscaping. All wireless facilities proposed to be placed in a landscaped area must include landscape features (which may include, without limitation, trees, shrubs and ground cover) and a landscape maintenance plan. The approval authority may require additional landscape features to screen the wireless facility from public view, avoid or mitigate potential adverse impacts on adjacent properties or otherwise enhance the concealment required under this chapter. All plants proposed or required must be native and/or drought-resistant and be consistent with the TRPA Home Landscaping Guide for Lake Tahoe and Vicinity.
G. Security Measures. To prevent unauthorized access, theft, vandalism, attractive nuisance or other hazards, reasonable and appropriate security measures, such as fences, walls and anti-climbing devices, may be approved. Security measures shall be designed and implemented in a manner that enhances or contributes to the overall concealment, and the approval authority may condition approval on additional concealment elements to mitigate any aesthetic impacts, which may include, without limitation, additional landscape features. The approval authority shall not approve barbed wire, razor ribbon, electrified fences or any similar security measures.
H. Secondary Power Sources. The approval authority may approve secondary or backup power sources and/or generators on a case-by-case basis. The approval authority shall not approve any permanent diesel generators or other similarly noisy or noxious generators in or within 250 feet from any residential structure absent a showing of extraordinary need, such as a declared public emergency; provided, however, the approval authority may approve sockets or other connections used for temporary backup generators.
I. Lights. Wireless facilities may not include exterior lights other than as may be required under Federal Aviation Administration, FCC, other applicable federal or state governmental regulations. All exterior lights permitted or required to be installed must be installed in locations and within enclosures that mitigates illumination impacts on other properties to the maximum extent feasible. Any lights associated with the electronic equipment shall be appropriately shielded from public view. Any light beacons or lightning arresters shall be included in the overall height calculation.
J. Signage; Advertisements. All wireless facilities must include signage that accurately identifies the equipment owner/operator, the owner/operator’s site name or identification number and a toll-free number to the owner/operator’s network operations center. Wireless facilities may not bear any other signage or advertisements unless expressly approved by the approval authority, required by law or recommended under FCC or other federal governmental agencies for compliance with RF emissions regulations.
K. Future Expansion. To the extent feasible and aesthetically desirable, all new wireless facilities should be designed and sited in a manner that accommodates potential future collocations and other expansions that can be integrated into the proposed wireless facility or its associated structures with no or negligible visual changes to the outward appearance. The approval authority may waive the requirements in this section when the approval authority determines future expansions at a proposed wireless facility would be aesthetically undesirable.
L. Utilities. All cables and connectors for telephone, primary electric and other similar utilities must be routed underground to the extent feasible in conduits large enough to accommodate future collocated wireless facilities. To the extent feasible, undergrounded cables and wires
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must transition directly into the pole base without any external doghouse. Meters, panels, disconnect switches and other associated improvements must be placed in inconspicuous locations to the extent possible. The approval authority shall not approve new overhead utility lines or service drops merely because compliance with the undergrounding requirements would increase the project cost. Microwave or other wireless backhaul is discouraged when it would involve a separate and unconcealed antenna.
M. Parking; Access. Any equipment or improvements constructed or installed in connection with any wireless facilities must not reduce any parking spaces below the minimum requirement for the subject property. Whenever feasible, wireless facilities should use existing parking and access rather than construct new parking or access improvements. Any new parking or access improvements should be the minimum size necessary to reasonably accommodate the proposed use and comply with applicable safety codes.
N. Compliance with Laws. All wireless facilities must be designed and sited in compliance with all applicable federal, state, regional, and local laws, regulations, rules, restrictions and conditions, which includes without limitation the California Building Standards Code, Americans with Disabilities Act, general plan and any applicable specific plan, the South Lake Tahoe City Code and any conditions or restrictions in any permit or other governmental approval issued by any public agency with jurisdiction over the project.
O. Towers and Freestanding Wireless Facilities. In addition to all other design requirements in this chapter, the following provisions shall be applied to an application for a tower or other freestanding wireless facility:
1. Tower-Mounted Equipment. All tower-mounted equipment must be mounted as close to the vertical support structure as possible to reduce its overall visual profile. Applicants must mount non-antenna, tower-mounted equipment (including, but not limited to, remote radio units/heads, surge suppressors and utility demarcation boxes) directly behind the antennas to the maximum extent feasible. All tower-mounted equipment, cables and hardware must be painted with flat/neutral colors subject to the approval authority’s prior approval.
2. Ground-Mounted Equipment. All ground-mounted equipment must either be concealed underground, or concealed within an existing or new structure, or other enclosure(s) subject to the approval authority’s prior approval. The approval authority may require additional concealment elements as the approval authority finds necessary or appropriate to blend the ground-mounted equipment, enclosure and/or other improvements into the natural and/or built environment.
3. Monopines. In addition to all other design requirements in this chapter, the following provisions shall be applied to an application for a monopine:
a. Shape and Branching. Monopines shall be gradually tapered from bottom to top to resemble the natural conical pine-tree shape, with shorter branches at the top and wider branches at the bottom. All monopines shall include a “crown” or “topper” installed above the monopole to create a natural point at the top. Branches shall begin at no greater than 15 feet above ground level and maintain at least 3.5 branches per vertical foot when averaged between the bottom-most branch and the highest point on the monopole (excluding any “crown” or “topper” installed above the monopole). 29
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b. Bark Cladding. The entire tower above any fence line shall be fitted with faux-pine bark cladding, painted or colored with browns or other appropriate earth tones to mimic natural pine bark.
c. Equipment Concealment. All antennas, accessory equipment, cross arms, hardware, cables and other attachments to the monopine must be painted or colored with a flat greens, browns or other appropriate earth tones to blend into the faux pine branches. All antennas, remote radio units, tower-mounted amplifiers and other similar equipment larger than one cubic foot shall be fitted with a faux-pine “sock” with faux-pine needles. No tower-mounted equipment shall be permitted to protrude beyond the branch canopy such that it would materially alter the tapered pine shape.
d. Material Selection and Approval. All materials and finishes used to conceal the monopine shall be subject to prior approval by the department. Applicants shall use only high-quality materials to conceal the wireless facility. The applicant shall use color-extruded plastics for elements such as the faux-pine needles and faux-bark cladding to prolong the like-new appearance and reduce fading caused by exposure to the sun and other weather conditions.
P. Building-Mounted Wireless Facilities. In addition to all other design requirements in this chapter, the following provisions shall be applied to an application for a wireless facility installed on a building rooftop or facade:
1. Architectural Integration. All applicants should, to the extent feasible, propose new non-tower 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, when integration with existing building features is not feasible, the applicant should 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, cupolas, steeples, chimneys and water tanks). Facilities must be located behind existing parapet walls or other existing screening elements to the maximum extent feasible.
2. Rooftop Wireless Facilities. All rooftop-mounted equipment must be screened from public view with concealment measures that match the underlying structure in proportion, quality, architectural style and finish to the maximum extent practicable. The approval authority may approve unscreened rooftop equipment only when it expressly finds that such equipment is effectively concealed due to its low height and/or setback from the roofline.
3. Facade-Mounted Wireless Facilities. When wireless facilities cannot be placed behind existing parapet walls or other existing screening elements, the approval authority may approve facade-mounted equipment in accordance with this section 6.75.100.P(3). All facade-mounted equipment must be concealed behind screen walls and mounted as flush to the facade as practicable. The approval authority may not approve “pop-out” screen boxes unless the design is architecturally consistent with the original building or support structure. Except for parcels located within the South Y Industrial Community Plan or the Tahoe Valley Area Plan Commercial Mixed-Use Services District, the approval authority may not approve any exposed facade-mounted antennas, including but not limited to
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exposed antennas painted to match the facade. To the extent feasible, facade-mounted equipment must be installed on the facade(s) along the building frontage that is the least prominent or publicly visible.
Q. Administrative Design Guidelines. The director may develop, and from time to time amend, design guidelines consistent with the generally applicable design regulations to clarify the aesthetic and public safety goals and standards in this chapter for city staff, applicants and the public. The design guidelines shall provide more detailed standards to implement the general principals articulated in this section and may include specific standards for particular wireless facilities or site locations but shall not unreasonably discriminate between functionally equivalent service providers. The design guidelines, and any subsequent amendments, shall not be effective unless approved by a resolution adopted by the city council. If a conflict arises between the development standards specified in this chapter and the design guidelines adopted under this section, the development standards specified in this chapter shall control.
6.75.110 Standard Conditions for Approved Permits
A. General. Except as may be authorized in subsection B, all wireless facilities approved under this chapter or deemed approved by the operation of law shall be automatically subject to the following conditions:
1. Permit Term; Approval Applies to Land. This permit will automatically expire 10 years and one day from its issuance unless California Government Code section 65964(b) authorizes the city to establish a shorter term for public safety or substantial land use reasons. Any other permits or approvals issued in connection with any collocation, modification or other change to this wireless facility, which includes without limitation any permits or other approvals deemed-granted or deemed-approved under federal or state law, will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law. This permit shall run with the land and shall be valid for the term specified in these conditions of approval. No change in ownership of the wireless facility, the site, or the subject property shall affect the permit term. This permit may not be transferred to another site or property.
2. Permit Renewal. The permittee may apply for permit renewal not more than one year before this permit expires. The permittee must demonstrate that the subject wireless facility complies with all the conditions of approval associated with this permit and all applicable provisions in this code that exist at the time the decision to renew or not renew 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 code or other applicable law. Upon renewal, this permit will automatically expire 10 years and one day from its issuance, unless the applicant applies for an additional permit renewal.
3. Build-Out Period. This permit will automatically expire 36 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 wireless facility, which includes without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, support structure or the wireless facility and its use. The permittee may request in writing, and the director may grant in writing, one six-month extension to the build-out period if the permittee submits substantial and reliable 31
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written evidence demonstrating justifiable cause for a six-month extension. If the build-out period (and any extension) finally expire, the permit shall be automatically void but the permittee may resubmit a complete application, which includes, without limitation all application fees, for the same or substantially similar project.
4. Pre-Construction. The permittee shall stake the site, install temporary best management practices and request a pre-grade inspection prior to the commencement of any construction. Construction can only occur after the inspection is approved.
5. Approved Plans. Any construction plans submitted to the building official shall incorporate the permit, together with all conditions of approval and the photo simulations associated with the permit (collectively, the “approved plans”). The permittee must construct, install and operate the wireless facility in substantial compliance with the approved plans. Any alterations, modifications or other changes to the approved plans, whether requested by the permittee or required by other departments or public agencies with jurisdiction over the wireless facility, shall be subject to the director’s prior review and approval. After the director receives a written request to approve an alteration, modification or other change to the approved plans, the director may refer the request to the original approval authority if the director finds that it substantially deviates from the approved plans or implicates a significant or substantial land-use concern
6. Post-Installation Certification., the director, in addition to any other actions or remedies authorized by the permit, this code or other applicable laws, may require the permittee to commission a noise study by a qualified professional to evaluate the facility’s compliance.
7. Compliance with Applicable 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 wireless facility or any use or activities in connection with the use authorized in this permit, which includes without limitation any laws applicable to human exposure to RF emissions and any standards, specifications or other requirements identified by the director (such as, without limitation, those requirements affixed to an encroachment permit). If the director finds good cause to believe that the wireless facility is not in compliance with any laws applicable to human exposure to RF emissions, the director may require the permittee to submit a written report certified by a qualified radio frequency engineer familiar with the wireless facility that certifies that the wireless facility is in compliance with all such laws. The directormay order the facility to be powered down if, based on objective evidence, the director finds that the wireless facility is in fact not in compliance with any laws applicable to human exposure to RF emissions until such time that the permittee demonstrates actual compliance with such laws. 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 this code, this chapter, 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 this code, this chapter, any permit, any permit condition or any applicable law or regulation.
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8. Annual RF Compliance Affidavit. On or before January 30th in each calendar year, the permittee acknowledges and agrees that the permittee shall submit to the department an affirmation, under penalty of perjury, that the proposed installation will be FCC compliant, because it will not cause members of the general public to be exposed to RF levels that exceed the maximum permission exposure levels deemed safe by the FCC.
9. Site Maintenance. The permittee shall keep the site area, which includes, without limitation, any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean, safe and code compliant condition in accordance with the approved plans and all conditions in this permit. The permittee shall keep the site area free from all litter and debris at all times. Routine maintenance within residential zones shall be restricted to normal construction work hours specified in the TRPA Code (generally 8 a.m. to 6:30 p.m.). 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.
10. Landscape Features. 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. Any replacement tree must be substantially the same size as the damaged tree or as otherwise approved by the city. The permittee shall, at all times, be responsible to maintain any replacement landscape features.
11. Abandonment. The permittee shall notify the director when the permittee intends to abandon or decommission the wireless facility authorized under this permit. In addition, the wireless facility authorized under this permit shall be deemed abandoned if the wireless facility has not operated for any continuous six-month period and the permittee fails to resume operations within 90 days from a written notice from the director. Within 90 days after a wireless facility is abandoned or deemed abandoned, the permittee and/or property owner shall completely remove the wireless facility and all related improvements and shall restore all affected areas to a condition compliant with all applicable laws, which includes without limitation this code. The permittee and/or property owner may request an extension to complete restoration to 180 days after a wireless facility is abandoned or deemed abandoned, which the director may grant if the applicant presents evidence of good cause for the extension. In the event that neither the permittee nor the property owner complies with the removal and restoration obligations under this condition within the required 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.
12. 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 33
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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.
13. Safety Hazard Protocol. If the fire chief (or designee) finds good cause to believe that the wireless facility presents an immediate fire risk, electrical hazard or other threat to public health and safety in violation of any applicable law, the fire chief may order the facility to be shut down and powered off until such time as the immediate threat has been mitigated, after a good faith effort is made to notify the applicant, if feasible. Any mitigations required shall be at the permittee’s sole cost and expense.
14. Contact Information. Prior to final inspection and at all times relevant to this permit, the permittee shall keep on file with the department basic contact and site information. This information shall include, but is not limited to, the following: (A) the name, physical address, notice address (if different), direct telephone number and email address for (i) the permittee and, if different from the permittee, the (ii) site operator, (ii) equipment owner, (iii) site manager and (iv) agent for service of process; (B) the regulatory authorizations held by the permittee and, to the extent applicable, site operator, equipment owner and site manager as may be necessary for the facility’s continued operation; (C) the facility’s site identification number and/or name used by the permittee and, to the extent applicable, site operator, equipment owner and site manager; and (D) a toll-free telephone number to the facility’s network operations center where a live person with power-down control over the facility is available 24 hours-per-day, seven days-per-week. Within 10 business days after a written request by the city, the permittee shall furnish the city with an updated form that includes all the most-current information described in this condition.
15. Indemnification. The permittee and, if applicable, the property owner upon which the 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 (A) 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 permit, and (B) 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 permit or the wireless facility. If 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 the city for any costs and expenses directly and necessarily incurred by the city in the course of the defense. The permittee expressly acknowledges and agrees that the permittee’s indemnification obligations under this condition are a material consideration that motivates the city to approve this permit, and that such indemnification obligations will survive the expiration, revocation or other termination of this permit.
16. Insurance. At all times relevant to this permit, the permittee shall obtain and maintaininsurance policies as follows:
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a. Commercial General Liability. Insurance Services Office Form CG 00 01 covering Commercial General Liability (“CGL”) on an “occurrence” basis, with limits not less than $1,000,000 per occurrence or $2,000,000 in the aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. CGL insurance must include coverage for the following: Bodily Injury and Property Damage;Personal Injury/Advertising Injury; Premises/Operations Liability; Products/Completed Operations Liability; Aggregate Limits that Apply per Project; Explosion, Collapse and Underground (“UCX”) exclusion deleted; Contractual Liability with respect to the permit; Broad Form Property Damage; and Independent Consultants Coverage. The policy shall contain no endorsements or provisions limiting coverage for (i) contractual liability; (ii) cross liability exclusion for claims or suits by one insured against another; (iii) products/completed operations liability; or (iv) contain any other exclusion contrary to the conditions in this permit.
b. Automotive Insurance. Insurance Services Office Form Number CA 00 01 covering, Code 1 (any auto), or if permittee has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
c. Workers’ Compensation. The permittee shall certify that it is aware of the provisions of California Labor Code § 3700, which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and further certifies that the permittee will comply with such provisions before commencing work under this permit. To the extent the permittee has employees at any time during the term of this permit, at all times during the performance of the work under this permit the permittee shall maintain insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
d. Umbrella Policy. If an umbrella or excess liability insurance policy is used to satisfy the minimum requirements for CGL or Automobile Liability insurance coverage listed above, the umbrella or excess liability policies shall provide coverage at least as broad as specified for the underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf,” with defense costs payable in addition to policy limits. permittee shall provide a “follow form” endorsement or schedule of underlying coverage satisfactory to the city indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.
e. Endorsements. The relevant policy(ies) shall name the city, its elected/ appointed officials, commission members, officers, representatives, agents, volunteers and employees as additional insureds. The permittee shall use its best efforts to provide thirty (30) calendar days’ prior written notice to the city of to the cancellation or material modification of any applicable insurance policy; provided, however, that in no event shall the permittee fail to provide written notice to the city within 10 calendar days after the cancellation or material modification of any applicable insurance policy.
f. Certificates. Before the city issues any permit, the permittee shall deliver to the director insurance certificates, in a form satisfactory to the director, that evidence all the coverage required above. In addition, the permittee shall promptly deliver complete copies of all insurance policies upon a written request by the director.
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17. Performance Bond. Before the building official issues any permits required to commence construction in connection with this permit, the permittee shall post a performance bond from a surety and in a form acceptable to the 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 or other infrastructure removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, the director shall take into consideration any information provided by the permittee regarding the cost to remove the wireless facility to a standard compliant with applicable laws. The performance bond shall expressly survive the duration of the permit term to the extent required to effectuate a complete removal of the subject wireless facility in accordance with this condition.
18. 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 permit application, permit, the approved plans and photo simulations incorporated into thisapproval, 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 in connection with the 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.
19. Permit Revocation. Any permit granted under chapter 6.75 or deemed approved by the operation of law 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). A permit granted under chapter 6.75 or deemed approved by the operation of law may be revoked only by the city council after a duly notice public hearing and opportunity to cure. Before any public hearing to revoke a permit granted under chapter 6.75 or deemed approved by the operation of law, the director must issue a written notice to the permittee that specifies (A) the facility; (B) the violation(s) to be corrected; (C) the timeframe in which the permittee must correct such violation(s); and (D) that, in addition to all other rights and remedies the city may pursue, the city may initiate 36
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revocation proceedings for failure to correct such violation(s). The city council may revoke a permit when it finds substantial evidence in the written record to show that the facility is notin 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.
20. Cost Reimbursement. The permittee acknowledges and agrees that (A) the permittee’s request for authorization to construct, install and/or operate the wireless facility will cause the city to incur costs and expenses; (B) the permittee shall be responsible to reimburse the city for all reasonable and actual 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; (C) any application fees required for the application may not cover all such reimbursable costs and that the permittee shall have the obligation to reimburse the city for all such costs 10 business days after a written demand for reimbursement and reasonable documentation to support such costs; and (D) 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.
21. Truthful and Accurate Statements. The permittee acknowledges that the city’s approval relies on the written and/or oral statements by permittee and/or persons authorized to act on permittee’s behalf. In any matter before the city in connection with the permit or the wireless facility, neither the permittee nor any person authorized to act on permittee’s behalf shall, in any written or oral statement, intentionally provide material factual information that is incorrect or misleading or intentionally omit any material information necessary to prevent any material factual statement from being incorrect or misleading.
22. Successors and Assigns. The conditions, covenants, promises and terms contained in this permit will bind and inure to the benefit of the city and permittee and their respective successors and assigns.
23. City’s Standing Reserved. The city’s grant or grant by operation of law of a permit does not waive, and shall not be construed to waive, any standing by the city to challenge any provision in federal or state law or any interpretation thereof.
24. Severability. If any provision in these conditions or such provision’s application to any person, entity or circumstances is or held by any court with competent jurisdiction to be invalid or unenforceable: (1) such provision or its application to such person, entity or circumstance will be deemed severed from this permit; (2) all other provisions in this permit or their application to any person, entity or circumstance will not be affected; and (3) all other provisions in this permit or their application to any person, entity or circumstance will be valid and enforceable to the fullest extent permitted by law.
B. Modified Conditions. The city council authorizes the director to modify, add or remove conditions to any permit as the director deems necessary or appropriate to: (1) protect and/or promote the public health, safety and welfare; (2) tailor the standard conditions in subsection
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(a) to the particular facts and circumstances associated with the deployment; and/or (3) memorialize any changes to the proposed deployment need for compliance with this code, generally applicable health and safety requirements and/or any other applicable laws.
6.75.120 Amortization
Any nonconforming wireless facilities in existence at the time this chapter becomes effective must be brought into conformance with this chapter in accordance with the amortization schedule in this section. As used in this section, the “fair market value” will be the construction costs listed on the building permit or application for the subject wireless facility and the “minimum years” allowed will be measured from the date on which this chapter becomes effective.
Fair Market Value on Effective Date
Minimum Years Allowed
less than $50,000………………………………….5
$50,000 to $500,000……………………………..10
greater than $500,000…………………………...15
The director may grant a written extension to a date certain when the wireless facility owner shows (1) a good faith effort to cure non-conformance; (2) the application of this section would violate applicable laws; or (3) extreme economic hardship would result from strict compliance with the amortization schedule. Any extension must be the minimum time period necessary to avoid such extreme economic hardship. The director may not grant any permanent exemption from this section.
Nothing in this section is intended to limit any permit term to less than 10 years for any permit granted on or after January 1, 2007. In the event that the amortization required in this section would reduce the permit term to less than 10 years for any permit granted on or after January 1, 2007, then the minimum years allowed will be automatically extended by the difference between 10 years and the number of years since the city granted such permit. Nothing in this section is intended or may be applied to prohibit any collocation or modification covered under 47 U.S.C. § 1455(a) on the basis that the subject wireless facility is a legal nonconforming wireless facility.
6.75.130 Special Exceptions for Federal or State Preemption
A. Preface. The provisions in this section establish a procedure by which the city may grant an exception to the standards in this chapter but only to the extent necessary to avoid conflict with applicable federal or state law. When the applicant requests an exception, the approval authority shall consider the findings in section 6.75.130.B in addition to the findings required under section 6.75.080.A. Each exception is specific to the facts and circumstances in
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connection with each application. An exception granted in one instance shall not be deemed to create a presumption or expectation that an exception will be granted in any other instance.
B. Findings for an Exception. The approval authority may grant an exception to any provision or requirement in this chapter only if the approval authority finds that:
1. a denial based on the application’s noncompliance with a specific provision or requirement would violate federal law, state law or both; or
2. a provision in this chapter, as applied to the applicant, would violate any rights or privileges conferred on the applicant by federal or state law.
C. Scope of Exception. If the approval authority finds that an exception should be granted, the exception shall be narrowly tailored so that the exception deviates from this chapter to least extent necessary for compliance with federal or state law.
D. Burden of Proof. The applicant shall have the burden to prove to the approval authority that an exception should be granted pursuant to this section. The standard of evidence shall be the same as required by applicable federal or state law for the issue raised in the applicant’s request for an exception.
6.75.140 Violations
Any use or condition caused or permitted to exist in violation of any provision of this chapter shall be and hereby is declared a public nuisance and may be subject to administrative citations as set forth in chapter 2.30 of this code, summary abatement pursuant to chapter 4.40 of this code, California Code of Civil Procedure section 731, or any other remedy available to the city.
SECTION 2. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision will not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 3. The City Clerk is directed to certify this Ordinance and cause it to be published in the manner required by law.
SECTION 4. This Ordinance shall become effective thirty days after the date of its adoption.
SECTION 5. The City Council finds that this Ordinance is exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15061(b)(3), Common Sense Exemption, in that it can be seen with certainty that there is no possibility for this action to have a significant effect on the environment, and individual development applications will be reviewed under CEQA as they are proposed. Adoption of this Ordinance would enact changes in land use regulations adding additional regulations and siting requirements on wireless facilities that would reduce their impacts, and it can be seen with certainty that its adoption will not have a significant effect on the environment because it will not allow for the development of any new or expanded wireless communication facilities 39
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anywhere other than where they were previously allowed under existing federal, state and local regulations.
Adopted by the City of South Lake Tahoe City Council on May 12, 2020 by the following vote:
Yes:No:Abstain:Absent:
________________________ Date:_________Jason Collin, Mayor
Attest:________________________Susan Blankenship, City Clerk
First Reading:Published:Effective:
The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the South Lake Tahoe City Council.
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Ordinance 2020-XXX
Adopted by the City of South Lake Tahoe
City Council
April 14May 12, 2020
An Ordinance Adding Chapter 6.75 to the South Lake Tahoe City Code Regarding Regulation of Wireless Facilities on Private Property
FINDINGS
A. To date, the City has not adopted regulations specific to wireless communication facilities but instead has applied generally applicable permit requirements to this type of facility.
B. The proposed ordinance is intended to address community concerns and increase local control over regulation of wireless facilities outside public rights-of-way in compliance with federal and state law.
C. The City held a community workshop on November 20, 2019, and a joint Planning
Commission and City Council Special Meeting on January 16, 2020, and a Planning Commission meeting on February 20, 2020, to review possible standards and regulations for a draft ordinance, and the proposed ordinance incorporates input and direction received.
D. The Telecommunications Act, 47 U.S.C. § 332(c)(7)(B), preserves local government zoning
authority as it relates to location and siting, but limits local regulations in three key ways: (1) a local ordinance may not unreasonably discriminate among providers of functionally equivalent services; (2) a local ordinance may not prohibit or effectively prohibit service; and (3) a local ordinance may not regulate based on environmental impacts from radio frequency emissions.
Now, Therefore, the City Council of City of South Lake Tahoe does ordain as follows:
SECTION 1. Title 6 of the South Lake Tahoe City Code is amended by adding a new Chapter 6.75 (Wireless Facilities on Private Property) as follows:
6.75 Wireless Facilities on Private Property
6.75.010 Purpose and Intent 6.75.020 Definitions 6.75.030 Applicability 6.75.040 Required Permits and Other Approvals 6.75.050 Administrative Orders and Regulations
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6.75.060 Permit Applications 6.75.070 Public Notice 6.75.080 Approvals, Denials and Appeals 6.75.090 Location Standards 6.75.100 Design Standards 6.75.110 Standard Conditions for Approved Permits 6.75.120 Amortization 6.75.130 Special Exceptions for Federal or State Preemption 6.75.140 Violations
6.75.010 Purpose and Intent
A. The City of South Lake Tahoe intends this chapter to establish reasonable, uniform and comprehensive standards and procedures for 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 chapter are intended to, and should be applied to, consistent with federal and state 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. This chapter is also intended to reflect and promote the community interest by (1) ensuring that the balance between public and private interest is maintained on a case-by-case basis; (2) protecting the city’s visual character from potential adverse impacts or visual blight created or exacerbated by wireless 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 chapter 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.
6.75.020 Definitions
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The abbreviations, phrases, terms and words used in this chapter will have the following meanings assigned to them unless context indicates otherwise. Undefined phrases, terms or words in this chapter will have their ordinary meanings.
The definitions in this chapter shall control over conflicting definitions for the same or similar abbreviations, phrases, terms or words as may be defined in the South Lake Tahoe City Code. However, if any definition assigned to any phrase, term or word in this chapter conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.
“amateur station” means the same as defined by the FCC in 47 C.F.R. § 97.3, as may be amended or superseded, which defines the term as “a station in an amateur radio service consisting of the apparatus necessary for carrying on radiocommunications.” This term includes amateur radio antennas and related facilities used for amateur radio services. “approval authority” means the city official or body responsible for application review and vested with authority to approve or deny such applications. “Director” means the Director of Development Services of the City of South Lake Tahoe or the Director’s designee. “eligible facilities request” means the same as defined in 47 U.S.C. § 1455(a)(2), as may be amended or superseded, and as interpreted by the FCC in 47 C.F.R. § 1.6100(b)(3), as may be amended or superseded. “FCC” means the Federal Communications Commission, as constituted by the Communications Act of 1934, Pub. L: 73-416, 48 Stat. 1064, codified as 47 U.S.C. §§ 151 et seq. or its duly appointed successor agency. “OTARD” means any “over-the-air reception device” subject to 47 C.F.R. §§ 1.4000 et seq., as may be amended or superseded, which generally includes satellite television dishes and certain fixed wireless antennas not greater than one meter in diameter. “personal wireless service facilities” mean the same as defined in 47 U.S.C. § 332(c)(7)(C)(ii), as may be amended or superseded, which defines the term as facilities that provide personal wireless services. “personal wireless services” mean 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. “RF” means radio frequency. “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. “shot clock” means the presumptively reasonable time defined by the FCC in which a state or local government must act on an application or request for authorization to place, construct or modify personal wireless service facilities.
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“small wireless facility” means the same as defined by the FCC in 47 C.F.R. § 1.6002(l), as may be amended or superseded. “stealth” means concealment techniques that completely screen all transmission equipment from public view and architecturally integrate the macro facility into the built environment such that, given the particular context, the average, untrained observer would not recognize the structure as a macro facility. Stealth concealment techniques include, without limitation: (1) transmission equipment placed completely within existing or replacement architectural features such that the installation causes no visible change in the underlying support structure; and (2) new architectural features that mimic or blend with the underlying or surrounding structures in style, proportion and construction quality. “TRPA Code” means the Tahoe Regional Planning Agency Code of Ordinances. “wireless facility” means a personal wireless service facility. 6.75.030 Applicability
A. General. This chapter applies to all requests for the city’s regulatory authorization to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy wireless facilities on private property (whether owned by a private party or public entity) within the city’s territorial and jurisdictional boundaries, unless expressly exempted pursuant to this section 6.75.030.
B. Wireless Facilities on City Property. This chapter applies to permit applications for wireless facilities on property or structures owned or controlled by the city; provided, however, that this chapter does not govern whether or under what terms and conditions the city would lease, license or otherwise allow a wireless facility on such property or structures.
C. Small Wireless Facilities. Notwithstanding anything in this chapter to the contrary, all small wireless facilities are subject to a permit as specified in a city council policy, which may be adopted, amended and/or repealed by a resolution of the city council. All small wireless facilities shall comply with the city council’s policy. If the city council policy is repealed and not replaced, an application for a small wireless facility shall be processed pursuant to this chapter.
D. Eligible Facilities Requests. Notwithstanding anything in this chapter to the contrary, all eligible facilities requests and other applications submitted for approval pursuant to Section 6409 are subject to a permit as specified in a city council policy, which may be adopted, amended and/or repealed by a resolution of the city council. All eligible facilities requests and other applications submitted for approval pursuant to Section 6409 shall comply with the city council’s policy. If the city council policy is repealed and not replaced, all eligible facilities requests and other applications submitted for approval pursuant to Section 6409 shall be processed pursuant to this chapter.
E. Other Exemptions. Notwithstanding anything in this chapter to the contrary, this chapter does not apply to the following:
1. wireless facilities operated by the city for public purposes;
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2. wireless facilities installed completely indoors and used to extend personal wireless services into a business or the subscriber’s private residence, such as a femto cell or indoor distributed antenna system;
3. OTARD antennas;
4. antennas and related transmission equipment used in connection with a duly authorized amateur station; or
5. wireless facilities or other transmission equipment owned and operated by CPUC-regulated electric companies for use in connection with electrical power, generation, transmission and distribution facilities subject to CPUC General Order 131-D.
6.75.040 Required Permits and Other Approvals
A. Design Review Permit. A design review permit, subject to the director’s prior review and approval, is required for all wireless facilities on private property in preferred locations as described in section 6.75.090 and do not require a special exemption under section 6.75.130.
B. Use Permit. A use permit, subject to the planning commission’s prior review and approval, is required for all wireless facilities on private property that does not qualify for a design review permit.
C. Referral. The director may refer any application for a design review permit to the planning commission when the director, in the director’s discretion, determines that the application implicates a significant planning concern.
D. Other Permits and Regulatory Approvals. In addition to any permit or approval required under this chapter, the applicant must obtain all other permits and regulatory approvals (such as compliance with the California Environmental Quality Act) as may be required by any other federal, state, regional or local government agencies, which includes without limitation other any permits and/or approvals issued by other city departments or divisions. Furthermore, any permit or approval granted under this chapter or deemed granted or deemed approved by law shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or approvals.
6.75.050 Administrative Orders and Regulations
In addition to the requirements in this chapter, the director may adopt such orders or regulations as the director deems necessary or appropriate to protect and maintain public health, safety, welfare and convenience. All wireless facilities must conform to all applicable orders and regulations issued by the director, unless the director, in the director’s discretion, grants a prior written waiver to deviate, in whole or in part, any such order or regulation. The director shall develop and publish guidelines to implement the waivers authorized by this section.
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6.75.060 Permit Applications
A. Application Required. The approval authority shall not approve any requests for authorization to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy wireless facilities except upon a complete and duly filed application consistent with this section and any other written rules or requirements the city or the director may establish from time to time in any publicly-stated format.
B. Application Content. All applications for a permit must include all the information and materials required by the director for the application. The city council authorizes the director to develop, publish and from time to time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the director finds necessary, appropriate or useful for processing any application governed under this chapter. All such requirements must be in written form and publicly stated and available to provide applicants with prior notice. Notwithstanding anything in this chapter to the contrary, all applications shall, at a minimum, require the applicant to demonstrate that the proposed project will be in planned compliance with all applicable health and safety laws, regulations or other rules, which includes without limitation all building codes, electric codes and all FCC rules for human exposure to RF emissions.
C. Application Submittal. Unless the director establishes an alternative submittal procedure pursuant to section 6.75.050, all applications under this chapter must be submitted to the city at a pre-scheduled appointment with the department. Applicants may generally submit one application per appointment but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. The department shall use reasonable efforts to provide the applicant with an appointment in writing within five working days after the department receives a written request and, if applicable, confirms that the applicant complied with the pre-submittal conference requirement. Any application received without an appointment, whether delivered in-person, by mail or through any other means, will not be considered duly filed.
D. Optional Pre-application Conferences. The department shall provide prospective applicants with the opportunity to schedule and attend a pre-application conference with department staff. The city strongly encourages pre-application conferences for all proposed projects that: (1) require planning commission approval; (2) the prospective applicant believes will qualify as a stealth facility; and/or (3) involve any wireless facilities proposed to be located in or within 200 feet from a residential land use category. The pre-application conference 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 or existing wireless facility, such as compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other city departments and/or divisions 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 department 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-application conference. 46
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E. Community Meetings. The city strongly encourages applicants to conduct community
meetings for all proposed projects requiring a use permit. Community meetings may be conducted before or after submittal. Public notice for a community meeting should be given in the manner described in section 6.75.070.C, except that the Applicant is responsible for the cost and implementation of noticing.
F. Applications Deemed Withdrawn. To promote efficient review and timely decisions, any application governed under this chapter will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the department within 90 calendar days after the department deems the application incomplete in a written notice to the applicant. The director, in the director’s discretion, may grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the 90th day that shows good cause to grant the extension. Good cause for an extension shall include, without limitation, delays due to circumstances outside the applicant’s reasonable control.
G. Peer and Independent Consultant Review. The city council authorizes the director to, in the director’s discretion, select and retain an independent consultant with specialized training, experience and/or expertise in telecommunications issues satisfactory to the director in connection with any permit application. The director may request an independent consultant review on any issue that involves specialized or expert knowledge in connection with wireless facilities deployment or permit applications for wireless facilities, which include without limitation: (A) permit application completeness and/or accuracy; (B) pre-construction planned compliance with applicable regulations for human exposure to RF emissions; (C) post-construction actual compliance with applicable regulations for human exposure to RF emissions; (D) whether and to what extent a proposed project will comply with applicable laws; (E) the applicability, reliability and/or sufficiency of any information, analyses or methodologies used by the applicant to reach any conclusions about any issue with the city’s discretion to review; and (F) any other issue identified by the director that requires expert or specialized knowledge, which includes, without limitation, any issues related to an exception requested by the applicant pursuant to section 6.75.130. The director may request that the independent consultant prepare written reports, testify at public meetings, hearings and/or appeals and attend meetings with city staff and/or the applicant. Subject to applicable law, in the event that the director elects to retain an independent consultant in connection with any permit application, the applicant shall be responsible for the actual and reasonable costs in connection with the services provided, which may include without limitation anyactual and reasonable costs incurred by the independent consultant to attend and participate in any meetings or hearings directly related to the permit application. The director may also recover the reasonable and actual costs incurred to administer the consultant contract. Before the independent consultant may perform any services, the applicant shall tender to the city a deposit in an amount equal to the estimated actual and reasonable cost for the services to be provided, as determined by the director. The director may request additional deposits as reasonably necessary to ensure sufficient funds are available to cover the reasonable costs in connection with the independent consultant’s services. If the deposit exceeds the total costs for consultant’s services, the director shall promptly return any unused funds to the applicant after the wireless facility has been installed and passes a final inspection by the director or his or her designee. If the reasonable costs for the independent consultant’s services exceed the deposit, the director shall invoice the applicant for the balance. The city shall not issue any building permit to any applicant with any unpaid invoices. 47
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6.75.070 Public Notice
A. Posted Notice. Within 10 business days after an application is duly filed with the department, the applicant shall (1) post notice on the proposed project site in a location near to and visible from the public rights-of-way and (2) provide the department with evidence that such notice has been posted. The applicant is responsible for maintaining and replacing the sign as necessary during the duration of the application review process until the approval authority acts on the application. The sign shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for the duration of the notice period. The sign shall be at least two feet wide by three feet tall, placed in a conspicuous location at the project site where it will be visible from the nearest public right-of-way. The sign shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians or other users in the public right-of-way. The city encourages applicants to consult with the department on placement locations to avoid any potential hazards. In addition to the content requirements in section 6.75.070.D, the posted notice shall include a URL for the city’s website page where application information can be obtained once uploaded in accordance with section 6.75.070.B.
B. Website Notice. Within 10 business days after an application is duly filed with the department, the department shall post notice on the city’s website.
C. Public Hearing Notice. At least 10 calendar days before any public hearing in connection with an application for a wireless facility, the director shall: (1) mail notice to all real property owners as shown on the most recent equalized assessment roll within 500 feet from the property on which the wireless facility is proposed; (2) mail notice to each physical address for all properties within 500 feet from the property on which the wireless facility is proposed; and (3) publish notice in at least one newspaper of general circulation within the city. In addition to the content requirements in section 6.75.070.D, public hearing notices shall also include the date, time and location for the public hearing and the URL to the project webpage on the city’s website.
D. Notice Content. In addition to any other requirements, notices required under sections 6.75.070.A, B and C shall include: (1) a general project description with photo simulations; (2) the applicant’s identification and contact information as provided on the application submitted to the city; (3) contact information for the department for interested parties to request additional information and submit comments; and (4) a statement as to whether a public hearing will be required for the application or not.
E. Decision Notices. Within five calendar days after the approval authority acts on an application governed under this chapter or before the shot clock expires (whichever occurs first), the director shall send a written notice to the applicant. If the approval authority denies the application (with or without prejudice), the written notice to the applicant must contain (1) the reasons for the denial and (2) instructions for how and when to file an appeal.
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A. Required Findings. The approval authority may approve wireless communication facility applications only when the approval authority makes all the following findings:
1. the proposed wireless facility is in a preferred location; or the proposed wireless facility is in
a discouraged location and the applicant has demonstrated through a meaningful comparative analysis that no more preferred location or support structure would be technically feasible and potentially available;
2. the proposed wireless facility complies with all applicable development standards in this code and any other applicable regulations;
3. the applicant has provided a signed statement that indicates its willingness to allow other
carriers and site operators to collocate transmission equipment with the proposed wireless facility, to the extent such facility or portions thereof are owned or controlled by the applicant, whenever technically feasible and aesthetically desirable in accordance with applicable provisions in this code;
4. the applicant has demonstrated that the proposed wireless facility will comply with all
applicable FCC regulations and guidelines for human exposure to RF emissions and will not, either individually or cumulatively with other transmitters in the vicinity, result in RF exposures that exceed the FCC’s maximum permissible exposure level for the general population; and
5. In addition, use permit applications require the approval authority to make all the findings
required for a use permit in accordance with section 6.55.610.B of this code.
B. Conditional Approvals; Denials without Prejudice. Subject to any applicable federal or state laws, nothing in this chapter is intended to limit the approval authority’s ability to conditionally approve or deny without prejudice any application governed under this chapter as may be necessary or appropriate to protect and promote the public health, safety and welfare, and to advance the goals or policies in the general plan and any applicable specific plan, this code, or this chapter.
C. Appeals. Within 10 calendar days after the approval authority approves or denies any application under this chapter, any interested person may file an appeal for cause in accordance with the provisions in chapter 2.35 of this code; provided, however, that (1) the notice provisions in this chapter shall control over those in chapter 2.35 and (2) appeals from an approval shall not be permitted when based solely on the environmental effects from RF emissions that are compliant with applicable FCC regulations and guidelines.
6.75.090 Location Standards
A. Preface to Location Standards. This section set out criteria to determine the least intrusivepreferred location and support structure for wireless facilities. The city considers the most preferred location and support structure to be the least intrusive means for an applicant to provide its services to the public. Subsection B describes general plan areas and land use designations where wireless facilities are generally most preferred. Subsection C provides specific locations where wireless facilities are discouraged. It is possible for a proposed facility to be simultaneously in a “preferred” and “discouraged” location, such as a commercial use
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within the Tahoe Valley Area Plan that happens to be within 200 feet from an historic structure. In such cases, the location shall not be deemed to be a “preferred” location. Finally, in situations where the applicant must consider alternative sites, preferences for facilities on land use classifications and support structures are ranked in subsection D and subsection E, respectively.
B. Preferred Locations. All applicants must, to the extent technically feasible and potentially available, propose new facilities in a preferred location. No alternative sites analysis is required for new stealth facilities proposed in any preferred location. For all other new facilities, the approval authority shall consider whether any more preferred location would be technically feasible or potentially available. The following locations are all considered “preferred locations” so long as the site is not simultaneously in a discouraged location under section 6.75.090.C:
1. parcels within the South Y Industrial Community Plan; 2. parcels within the following zoning districts of the Tahoe Valley Area Plan: Town Center
Core, Town Center Mixed-Use Corridor, Town Center Gateway, and with a land use designation as Commercial Mixed-Use Services;
3. parcels within the following zoning districts of the Bijou/Al Tahoe Community Plan: District #1, District #2, District #3, and portions of District #4 (Recreation Center and Campground and the Lake Tahoe Community College);
2.4. parcels within the following zoning districts of the Tourist Core Area Plan: Tourist Center, Tourist Center Mixed-Use, Tourist Center Mixed-Use Corridor, and Recreation.
5. parcels within plan areas with a land use designation as Recreation or Conservation; and 3.6. parcels within Pan Area Statement 103 (Sierra Tract Commercial); and 4.7. parcels within Plan Area Statement 116 (Airport).
C. Discouraged Locations. When an application involves a new facility in a discouraged
location, the approval authority shall consider whether any alternative site within a preferred location would be technically feasible and potentially available. If no such alternative exists, the approval authority shall consider whether any less discouraged location would be technically feasible and potentially available. The following locations are all “discouraged” and ordered from most discouraged to least discouraged:
1. any location within where the facility would be 200 feet from a school, a structure approved for residential use, a designated historic property, or structure, or a historic district, or any property, structure, or district eligible for historic designation;
2. any parcel with a General Plan Land Use Designation as Low-Density Residential or High-Density Residential;
3. any location where the facility would be visible from the scenic corridor.
D. Land Use Preferences. Within any area plan, community plan, or plan area, applicants must propose new facilities on parcels with the most preferred land use designation whenever technically feasible and potentially available. Applications must include a written justification, supported by factual and verifiable evidence, that shows no location with a more preferred land use designation is technically feasible and potentially available, unless the proposed facility is in the most preferred land use designation or is a stealth facility in a preferred location. The following General Plan land use designations are ranked from most preferred to least preferred:
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1. Special District; 2. Recreation (R); 3. Conservation (C); 4. Town Center; (TC) 5. Tourist Center (TCS-C) 6. Neighborhood Center (NC); 7. High-Density Residential (HDR); and 8. Low-Density Residential (LDR).
E. Support Structures. The approval authority shall consider whether any more preferred
support structure would be technically feasible and potentially available. The approval authority may require the applicant to use a more preferred support structure when the alternative is technically feasible and potentially available. The city’s preferences for support structures are as follows, order from most preferred to least preferred:
1. collocation on an existing structure with existing wireless facilities; 2. installations on a rooftop; 3. installations on a building facade; 4. installations on a new or replacement pole within the public rights-of-way; 5. installations on a new freestanding pole within the public rights-of-way; 6. installations on a new freestanding structure outside the public rights-of-way.
6.75.100 Design Standards
A. Concealment. All wireless facilities must be concealed to the maximum extent feasible with design elements and techniques that mimic or blend with the underlying support structure, surrounding environment and adjacent uses.
B. Overall Height. To maintain a natural appearance, a monopine maywireless facilities may not exceed more than 10 feet above the average height of mature natural trees within the vicinity or the maximum height allowed by the TRPA Code; whichever is more restrictive. If the applicant plants new natural trees around the proposed monopinewireless facility, the approval authority shall consider the future mature height of such trees when evaluating compliance with this standard. Overall Height. All wireless facilities must be compliant with maximum overall height limits applicable to structures on the underlying parcel.
C. Setbacks. All wireless facilities must be compliant with all setback requirements applicable to structures on the underlying parcel.
D. Fall Zone. All freestanding towers outside the public rights-of-way must be setback from habitable structures approved for residential occupancy by a distance equal to one horizontal foot for every foot of the tower height, or the distance from the highest engineered break point to the top of the tower. The approval authority may waive the setback requirement for freestanding towers that meet Class 3 structural standards for critical infrastructure as defined in the most current revision of the ANSI/TIA-222 Structural Standard for Antenna Supporting Structures, Antennas and Small Wind Turbine Support Structures.
E. Noise. All wireless facilities must be compliant with all applicable noise regulations, which includes, without limitation, any noise regulations in the TRPA Code. The approval authority
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may require the applicant to incorporate appropriate noise-baffling materials and/or noise-mitigation strategies to avoid any ambient noise from equipment reasonably likely to exceed the applicable noise regulations.
F. Landscaping. All wireless facilities proposed to be placed in a landscaped area must include landscape features (which may include, without limitation, trees, shrubs and ground cover) and a landscape maintenance plan. The approval authority may require additional landscape features to screen the wireless facility from public view, avoid or mitigate potential adverse impacts on adjacent properties or otherwise enhance the concealment required under this chapter. All plants proposed or required must be native and/or drought-resistant and be consistent with the TRPA Home Landscaping Guide for Lake Tahoe and Vicinity.
G. Security Measures. To prevent unauthorized access, theft, vandalism, attractive nuisance or other hazards, reasonable and appropriate security measures, such as fences, walls and anti-climbing devices, may be approved. Security measures shall be designed and implemented in a manner that enhances or contributes to the overall concealment, and the approval authority may condition approval on additional concealment elements to mitigate any aesthetic impacts, which may include, without limitation, additional landscape features. The approval authority shall not approve barbed wire, razor ribbon, electrified fences or any similar security measures.
H. Secondary Power Sources. The approval authority may approve secondary or backup power sources and/or generators on a case-by-case basis. The approval authority shall not approve any permanent diesel generators or other similarly noisy or noxious generators in or within 250 feet from any residential structure absent a showing of extraordinary need, such as a declared public emergencyce; provided, however, the approval authority may approve sockets or other connections used for temporary backup generators.
I. Lights. Wireless facilities may not include exterior lights other than as may be required under Federal Aviation Administration, FCC, other applicable federal or state governmental regulations. All exterior lights permitted or required to be installed must be installed in locations and within enclosures that mitigates illumination impacts on other properties to the maximum extent feasible. Any lights associated with the electronic equipment shall be appropriately shielded from public view. Any light beacons or lightning arresters shall be included in the overall height calculation.
J. Signage; Advertisements. All wireless facilities must include signage that accurately identifies the equipment owner/operator, the owner/operator’s site name or identification number and a toll-free number to the owner/operator’s network operations center. Wireless facilities may not bear any other signage or advertisements unless expressly approved by the approval authority, required by law or recommended under FCC or other federal governmental agencies for compliance with RF emissions regulations.
K. Future Expansion. To the extent feasible and aesthetically desirable, all new wireless facilities should be designed and sited in a manner that accommodates potential future collocations and other expansions that can be integrated into the proposed wireless facility or its associated structures with no or negligible visual changes to the outward appearance. The approval authority may waive the requirements in this section when the approval authority determines future expansions at a proposed wireless facility would be aesthetically undesirable.
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L. Utilities. All cables and connectors for telephone, primary electric and other similar utilities must be routed underground to the extent feasible in conduits large enough to accommodate future collocated wireless facilities. To the extent feasible, undergrounded cables and wires must transition directly into the pole base without any external doghouse. Meters, panels, disconnect switches and other associated improvements must be placed in inconspicuous locations to the extent possible. The approval authority shall not approve new overhead utility lines or service drops merely because compliance with the undergrounding requirements would increase the project cost. Microwave or other wireless backhaul is discouraged when it would involve a separate and unconcealed antenna.
M. Parking; Access. Any equipment or improvements constructed or installed in connection with any wireless facilities must not reduce any parking spaces below the minimum requirement for the subject property. Whenever feasible, wireless facilities should use existing parking and access rather than construct new parking or access improvements. Any new parking or access improvements should be the minimum size necessary to reasonably accommodate the proposed use and comply with applicable safety codes.
N. Compliance with Laws. All wireless facilities must be designed and sited in compliance with all applicable federal, state, regional, and local laws, regulations, rules, restrictions and conditions, which includes without limitation the California Building Standards Code, Americans with Disabilities Act, general plan and any applicable specific plan, the South Lake Tahoe City Code and any conditions or restrictions in any permit or other governmental approval issued by any public agency with jurisdiction over the project.
O. Towers and Freestanding Wireless Facilities. In addition to all other design requirements in this chapter, the following provisions shall be applied to an application for a tower or other freestanding wireless facility:
1. Tower-Mounted Equipment. All tower-mounted equipment must be mounted as close to the vertical support structure as possible to reduce its overall visual profile. Applicants must mount non-antenna, tower-mounted equipment (including, but not limited to, remote radio units/heads, surge suppressors and utility demarcation boxes) directly behind the antennas to the maximum extent feasible. All tower-mounted equipment, cables and hardware must be painted with flat/neutral colors subject to the approval authority’s prior approval.
2. Ground-Mounted Equipment. All ground-mounted equipment must either be concealed underground, or concealed within an existing or new structure, or other enclosure(s) subject to the approval authority’s prior approval. The approval authority may require additional concealment elements as the approval authority finds necessary or appropriate to blend the ground-mounted equipment, enclosure and/or other improvements into the natural and/or built environment.
3. Monopines. In addition to all other design requirements in this chapter, the following
provisions shall be applied to an application for a monopine: a. Shape and Branching. Monopines shall be gradually tapered from bottom to top to
resemble the natural conical pine-tree shape, with shorter branches at the top and wider branches at the bottom. All monopines shall include a “crown” or “topper” installed above the monopole to create a natural point at the top. Branches shall begin at no greater than 15 feet above ground level and maintain at least 3.5 branches per vertical
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foot when averaged between the bottom-most branch and the highest point on the monopole (excluding any “crown” or “topper” installed above the monopole).
b. Overall Height. To maintain a natural appearance, a monopine may not exceed more than 10 feet above the average height of mature natural trees within the vicinity or the maximum height allowed by the TRPA Code; whichever is more restrictive. If the applicant plants new natural trees around the proposed monopine, the approval authority shall consider the future mature height of such trees when evaluating compliance with this standard.
c.b. Bark Cladding. The entire tower above any fence line shall be fitted with faux-pine bark cladding, painted or colored with browns or other appropriate earth tones to mimic natural pine bark.
d.c. Equipment Concealment. All antennas, accessory equipment, cross arms, hardware, cables and other attachments to the monopine must be painted or colored with a flat greens, browns or other appropriate earth tones to blend into the faux pine branches. All antennas, remote radio units, tower-mounted amplifiers and other similar equipment larger than one cubic foot shall be fitted with a faux-pine “sock” with faux-pine needles. No tower-mounted equipment shall be permitted to protrude beyond the branch canopy such that it would materially alter the tapered pine shape.
e.d. Material Selection and Approval. All materials and finishes used to conceal the monopine shall be subject to prior approval by the department. Applicants shall use only high-quality materials to conceal the wireless facility. The applicant shall use color-extruded plastics for elements such as the faux-pine needles and faux-bark cladding to prolong the like-new appearance and reduce fading caused by exposure to the sun and other weather conditions.
P. Building-Mounted Wireless Facilities. In addition to all other design requirements in this
chapter, the following provisions shall be applied to an application for a wireless facility installed on a building rooftop or facade:
1. Architectural Integration. All applicants should, to the extent feasible, propose new non-
tower 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, when integration with existing building features is not feasible, the applicant should 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, cupolas, steeples, chimneys and water tanks). Facilities must be located behind existing parapet walls or other existing screening elements to the maximum extent feasible.
2. Rooftop Wireless Facilities. All rooftop-mounted equipment must be screened from public view with concealment measures that match the underlying structure in proportion, quality, architectural style and finish to the maximum extent practicable. The approval authority may approve unscreened rooftop equipment only when it expressly finds that such equipment is effectively concealed due to its low height and/or setback from the roofline.
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3. Facade-Mounted Wireless Facilities. When wireless facilities cannot be placed behind
existing parapet walls or other existing screening elements, the approval authority may approve facade-mounted equipment in accordance with this section 6.75.100.P(3). All facade-mounted equipment must be concealed behind screen walls and mounted as flush to the facade as practicable. The approval authority may not approve “pop-out” screen boxes unless the design is architecturally consistent with the original building or support structure. Except for parcels located within the South Y Industrial Community Plan or the Tahoe Valley Area Plan Commercial Mixed-Use Services District, the approval authority may not approve any exposed facade-mounted antennas, including but not limited to exposed antennas painted to match the facade. To the extent feasible, facade-mounted equipment must be installed on the facade(s) along the building frontage that is the least prominent or publicly visible.
Q. Administrative Design Guidelines. The director may develop, and from time to time amend,
design guidelines consistent with the generally applicable design regulations to clarify the aesthetic and public safety goals and standards in this chapter for city staff, applicants and the public. The design guidelines shall provide more detailed standards to implement the general principals articulated in this section and may include specific standards for particular wireless facilities or site locations but shall not unreasonably discriminate between functionally equivalent service providers. The design guidelines, and any subsequent amendments, shall not be effective unless approved by a resolution adopted by the city council. If a conflict arises between the development standards specified in this chapter and the design guidelines adopted under this section, the development standards specified in this chapter shall control.
6.75.110 Standard Conditions for Approved Permits
A. General. Except as may be authorized in subsection B, all wireless facilities approved under this chapter or deemed approved by the operation of law shall be automatically subject to the following conditions:
1. Permit Term; Approval Applies to Land. This permit will automatically expire 10 years
and one day from its issuance unless California Government Code section 65964(b) authorizes the city to establish a shorter term for public safety or substantial land use reasons. Any other permits or approvals issued in connection with any collocation, modification or other change to this wireless facility, which includes without limitation any permits or other approvals deemed-granted or deemed-approved under federal or state law, will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law. This permit shall run with the land and shall be valid for the term specified in these conditions of approval. No change in ownership of the wireless facility, the site, or the subject property shall affect the permit term. This permit may not be transferred to another site or property.
2. Permit Renewal. The permittee may apply for permit renewal not more than one year before this permit expires. The permittee must demonstrate that the subject wireless facility complies with all the conditions of approval associated with this permit and all applicable provisions in this code that exist at the time the decision to renew or not renew 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 code or other applicable law. Upon 55
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renewal, this permit will automatically expire 10 years and one day from its issuance, unless the applicant applies for an additional permit renewal.
3. Build-Out Period. This permit will automatically expire 36 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 wireless facility, which includes without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, support structure or the wireless facility and its use. The permittee may request in writing, and the director may grant in writing, one six-month extension to the build-out period if the permittee submits substantial and reliable written evidence demonstrating justifiable cause for a six-month extension. If the build-out period (and any extension) finally expire, the permit shall be automatically void but the permittee may resubmit a complete application, which includes, without limitation all application fees, for the same or substantially similar project.
4. Pre-Construction. The permittee shall stake the site, install temporary best management
practices and request a pre-grade inspection prior to the commencement of any construction. Construction can only occur after the inspection is approved.
5. Approved Plans. Any construction plans submitted to the building official shall incorporate the permit, together with all conditions of approval and the photo simulations associated with the permit (collectively, the “approved plans”). The permittee must construct, install and operate the wireless facility in substantial compliance with the approved plans. Any alterations, modifications or other changes to the approved plans, whether requested by the permittee or required by other departments or public agencies with jurisdiction over the wireless facility, shall be subject to the director’s prior review and approval. After the director receives a written request to approve an alteration, modification or other change to the approved plans, the director may refer the request to the original approval authority if the director finds that it substantially deviates from the approved plans or implicates a significant or substantial land-use concern
6. Post-Installation Certification., the director, in addition to any other actions or remedies authorized by the permit, this code or other applicable laws, may require the permittee to commission a noise study by a qualified professional to evaluate the facility’s compliance.
7. Compliance with Applicable 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 wireless facility or any use or activities in connection with the use authorized in this permit, which includes without limitation any laws applicable to human exposure to RF emissions and any standards, specifications or other requirements identified by the director (such as, without limitation, those requirements affixed to an encroachment permit). If the director finds good cause to believe that the wireless facility is not in compliance with any laws applicable to human exposure to RF emissions, the director may require the permittee to submit a written report certified by a qualified radio frequency engineer familiar with the wireless facility that certifies that the wireless facility is in compliance with all such laws. The director may order the facility to be powered down if, based on objective evidence, the director finds that the wireless facility is in fact not in compliance with any laws applicable to human exposure to RF emissions until such time that the permittee demonstrates actual compliance with such laws. The permittee expressly acknowledges and agrees that this
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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 this code, this chapter, 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 this code, this chapter, any permit, any permit condition or any applicable law or regulation.
8. Annual RF Compliance Affidavit. On or before January 30th in each calendar year, the permittee acknowledges and agrees that the permittee shall submit to the department an affirmation, under penalty of perjury, that the proposed installation will be FCC compliant, because it will not cause members of the general public to be exposed to RF levels that exceed the maximum permission exposure levels deemed safe by the FCC.
9. Site Maintenance. The permittee shall keep the site area, which includes, without limitation, any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean, safe and code compliant condition in accordance with the approved plans and all conditions in this permit. The permittee shall keep the site area free from all litter and debris at all times. Routine maintenance within residential zones shall be restricted to normal construction work hours specified in the TRPA Code (generally 8 a.m. to 6:30 p.m.). 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.
10. Landscape Features. 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. Any replacement tree must be substantially the same size as the damaged tree or as otherwise approved by the city. The permittee shall, at all times, be responsible to maintain any replacement landscape features.
11. Abandonment. The permittee shall notify the director when the permittee intends to abandon or decommission the wireless facility authorized under this permit. In addition, the wireless facility authorized under this permit shall be deemed abandoned if the wireless facility has not operated for any continuous six-month period and the permittee fails to resume operations within 90 days from a written notice from the director. Within 90 days after a wireless facility is abandoned or deemed abandoned, the permittee and/or property owner shall completely remove the 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 South Lake Tahoe City Codethis code. The permittee and/or property owner may request an extension to complete restoration to 180 days after a wireless facility is abandoned or deemed abandoned, which the director may grant if the applicant presents evidence of good cause for the extension. In the event that neither the permittee nor the property owner complies with the removal and restoration obligations under this condition within said 90-daythe required 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
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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.
12. 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.
13. Safety Hazard Protocol. If the fire chief (or his or her designee) finds good cause to believe that the wireless facility presents an immediate fire risk, electrical hazard or other threat to public health and safety in violation of any applicable law, the fire chief may order the facility to be shut down and powered off until such time as the immediate threat has been mitigated, after a good faith effort is made to notify the applicant, if feasible. Any mitigations required shall be at the permittee’s sole cost and expense.
14. Contact Information. Prior to final inspection and at all times relevant to this permit, the permittee shall keep on file with the department basic contact and site information. This information shall include, but is not limited to, the following: (A) the name, physical address, notice address (if different), direct telephone number and email address for (i) the permittee and, if different from the permittee, the (ii) site operator, (ii) equipment owner, (iii) site manager and (iv) agent for service of process; (B) the regulatory authorizations held by the permittee and, to the extent applicable, site operator, equipment owner and site manager as may be necessary for the facility’s continued operation; (C) the facility’s site identification number and/or name used by the permittee and, to the extent applicable, site operator, equipment owner and site manager; and (D) a toll-free telephone number to the facility’s network operations center where a live person with power-down control over the facility is available 24 hours-per-day, seven days-per-week. Within 10 business days after a written request by the city, the permittee shall furnish the city with an updated form that includes all the most-current information described in this condition.
15. Indemnification. The permittee and, if applicable, the property owner upon which the 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 (A) 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 permit, and (B) 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 permit or the wireless facility. If 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 58
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owner and/or permittee (as applicable) shall promptly reimburse the city for any costs and expenses directly and necessarily incurred by the city in the course of the defense. The permittee expressly acknowledges and agrees that the permittee’s indemnification obligations under this condition are a material consideration that motivates the city to approve this permit, and that such indemnification obligations will survive the expiration, revocation or other termination of this permit.
16. Insurance. At all times relevant to this permit, the permittee shall obtain and maintain insurance policies as follows:
a. Commercial General Liability. Insurance Services Office Form CG 00 01 covering
Commercial General Liability (“CGL”) on an “occurrence” basis, with limits not less than $1,000,000 per occurrence or $2,000,000 in the aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. CGL insurance must include coverage for the following: Bodily Injury and Property Damage; Personal Injury/Advertising Injury; Premises/Operations Liability; Products/Completed Operations Liability; Aggregate Limits that Apply per Project; Explosion, Collapse and Underground (“UCX”) exclusion deleted; Contractual Liability with respect to the permit; Broad Form Property Damage; and Independent Consultants Coverage. The policy shall contain no endorsements or provisions limiting coverage for (i) contractual liability; (ii) cross liability exclusion for claims or suits by one insured against another; (iii) products/completed operations liability; or (iv) contain any other exclusion contrary to the conditions in this permit.
b. Automotive Insurance. Insurance Services Office Form Number CA 00 01 covering, Code 1 (any auto), or if permittee has no owned autos, Code 8 (hired) and 9 (non-owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
c. Workers’ Compensation. The permittee shall certify that it is aware of the provisions of
California Labor Code § 3700, which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and further certifies that the permittee will comply with such provisions before commencing work under this permit. To the extent the permittee has employees at any time during the term of this permit, at all times during the performance of the work under this permit the permittee shall maintain insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
c. d. Errors and Omissions Policy. The permittee shall maintain Professional Liability
(Errors and Omissions) Insurance appropriate to the permittee’s profession, with limit no less than $1,000,000 per occurrence or claim. This insurance shall be endorsed to include contractual liability applicable to this permit and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the permittee. “Covered Professional Services” as designed in the policy must specifically include work performed under this permit.
e.d. Umbrella Policy. If an umbrella or excess liability insurance policy is used to satisfy the
minimum requirements for CGL or Automobile Liability insurance coverage listed above, 59
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the umbrella or excess liability policies shall provide coverage at least as broad as specified for the underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf,” with defense costs payable in addition to policy limits. permittee shall provide a “follow form” endorsement or schedule of underlying coverage satisfactory to the city indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.
f.e. Endorsements. The relevant policy(ies) shall name the city, its elected/ appointed
officials, commission members, officers, representatives, agents, volunteers and employees as additional insureds. The permittee shall use its best efforts to provide thirty (30) calendar days’ prior written notice to the city of to the cancellation or material modification of any applicable insurance policy; provided, however, that in no event shall the permittee fail to provide written notice to the city within 10 calendar days after the cancellation or material modification of any applicable insurance policy.
g.f. Certificates. Before the city issues any permit, the permittee shall deliver to the director
insurance certificates, in a form satisfactory to the director, that evidence all the coverage required above. In addition, the permittee shall promptly deliver complete copies of all insurance policies upon a written request by the director.
17. Performance Bond. Before the building official issues any permits required to commence
construction in connection with this permit, the permittee shall post a performance bond from a surety and in a form acceptable to the 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 or other infrastructure removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, the director shall take into consideration any information provided by the permittee regarding the cost to remove the wireless facility to a standard compliant with applicable laws. The performance bond shall expressly survive the duration of the permit term to the extent required to effectuate a complete removal of the subject wireless facility in accordance with this condition.
18. 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 permit application, permit, 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 in connection with the 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- 60
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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.
19. Permit Revocation. Any permit granted under chapter 6.75 or deemed approved by the operation of law 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). A permit granted under chapter 6.75 or deemed approved by the operation of law may be revoked only by the city council after a duly notice public hearing and opportunity to cure. Before any public hearing to revoke a permit granted under chapter 6.75 or deemed approved by the operation of law, the director must issue a written notice to the permittee that specifies (A) the facility; (B) the violation(s) to be corrected; (C) the timeframe in which the permittee must correct such violation(s); and (D) 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). 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.
20. Cost Reimbursement. The permittee acknowledges and agrees that (A) the permittee’s request for authorization to construct, install and/or operate the wireless facility will cause the city to incur costs and expenses; (B) the permittee shall be responsible to reimburse the city for all reasonable and actual 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; (C) any application fees required for the application may not cover all such reimbursable costs and that the permittee shall have the obligation to reimburse the city for all such costs 10 business days after a written demand for reimbursement and reasonable documentation to support such costs; and (D) 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.
21. Truthful and Accurate Statements. The permittee acknowledges that the city’s approval relies on the written and/or oral statements by permittee and/or persons authorized to act on permittee’s behalf. In any matter before the city in connection with the permit or the wireless facility, neither the permittee nor any person authorized to act on permittee’s behalf shall, in any written or oral statement, intentionally provide material factual information that is incorrect or misleading or intentionally omit any material information necessary to prevent any material factual statement from being incorrect or misleading. 61
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22. Successors and Assigns. The conditions, covenants, promises and terms contained in this permit will bind and inure to the benefit of the city and permittee and their respective successors and assigns.
23. City’s Standing Reserved. The city’s grant or grant by operation of law of a permit does not waive, and shall not be construed to waive, any standing by the city to challenge any provision in federal or state law or any interpretation thereof.
24. Severability. If any provision in these conditions or such provision’s application to any person, entity or circumstances is or held by any court with competent jurisdiction to be invalid or unenforceable: (1) such provision or its application to such person, entity or circumstance will be deemed severed from this permit; (2) all other provisions in this permit or their application to any person, entity or circumstance will not be affected; and (3) all other provisions in this permit or their application to any person, entity or circumstance will be valid and enforceable to the fullest extent permitted by law.
B. Modified Conditions. The city council authorizes the director to modify, add or remove
conditions to any permit as the director deems necessary or appropriate to: (1) protect and/or promote the public health, safety and welfare; (2) tailor the standard conditions in subsection (a) to the particular facts and circumstances associated with the deployment; and/or (3) memorialize any changes to the proposed deployment need for compliance with this code, generally applicable health and safety requirements and/or any other applicable laws.
6.75.120 Amortization
Any nonconforming wireless facilities in existence at the time this chapter becomes effective must be brought into conformance with this chapter in accordance with the amortization schedule in this section. As used in this section, the “fair market value” will be the construction costs listed on the building permit or application for the subject wireless facility and the “minimum years” allowed will be measured from the date on which this chapter becomes effective.
Fair Market Value on Effective Date
Minimum Years Allowed
less than $50,000………………………………….5
$50,000 to $500,000……………………………..10
greater than $500,000…………………………...15
The director may grant a written extension to a date certain when the wireless facility owner shows (1) a good faith effort to cure non-conformance; (2) the application of this section would violate applicable laws; or (3) extreme economic hardship would result from strict compliance with the
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amortization schedule. Any extension must be the minimum time period necessary to avoid such extreme economic hardship. The director may not grant any permanent exemption from this section.
Nothing in this section is intended to limit any permit term to less than 10 years for any permit granted on or after January 1, 2007. In the event that the amortization required in this section would reduce the permit term to less than 10 years for any permit granted on or after January 1, 2007, then the minimum years allowed will be automatically extended by the difference between 10 years and the number of years since the city granted such permit. Nothing in this section is intended or may be applied to prohibit any collocation or modification covered under 47 U.S.C. § 1455(a) on the basis that the subject wireless facility is a legal nonconforming wireless facility.
6.75.130 Special Exceptions for Federal or State Preemption
A. Preface. The provisions in this section establish a procedure by which the city may grant an exception to the standards in this chapter but only to the extent necessary to avoid conflict with applicable federal or state law. When the applicant requests an exception, the approval authority shall consider the findings in section 6.75.130.B in addition to the findings required under section 6.75.080.A. Each exception is specific to the facts and circumstances in connection with each application. An exception granted in one instance shall not be deemed to create a presumption or expectation that an exception will be granted in any other instance.
B. Findings for an Exception. The approval authority may grant an exception to any provision or requirement in this chapter only if the approval authority finds that:
1. a denial based on the application’s noncompliance with a specific provision or requirement
would violate federal law, state law or both; or
2. a provision in this chapter, as applied to the applicant, would violate any rights or privileges conferred on the applicant by federal or state law.
C. Scope of Exception. If the approval authority finds that an exception should be granted, the
exception shall be narrowly tailored so that the exception deviates from this chapter to least extent necessary for compliance with federal or state law.
D. Burden of Proof. The applicant shall have the burden to prove to the approval authority that an exception should be granted pursuant to this section. The standard of evidence shall be the same as required by applicable federal or state law for the issue raised in the applicant’s request for an exception.
6.75.140 Violations
Any use or condition caused or permitted to exist in violation of any provision of this chapter shall be and hereby is declared a public nuisance and may be subject to administrative citations as set forth in South Lake Tahoe City Code chapter 2.30 of this code code, summary abatement pursuant to South Lake Tahoe City Code chapter 4.40 of this code, California Code of Civil Procedure section 731, or any other remedy available to the city. 63
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SECTION 2. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision will not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 3. The City Clerk is directed to certify this Ordinance and cause it to be published in the manner required by law.
SECTION 4. This Ordinance shall become effective thirty days after the date of its adoption.
SECTION 5. The City Council finds that this Ordinance is exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15061(b)(3), Common Sense Exemption, in that it can be seen with certainty that there is no possibility for this action to have a significant effect on the environment, and individual development applications will be reviewed under CEQA as they are proposed. Adoption of this Ordinance would enact changes in land use regulations adding additional regulations and siting requirements on wireless facilities that would reduce their impacts, and it can be seen with certainty that its adoption will not have a significant effect on the environment because it will not allow for the development of any new or expanded wireless communication facilities anywhere other than where they were previously allowed under existing federal, state and local regulations.
Adopted by the City of South Lake Tahoe City Council on April 14May 12, 2020 by the following vote: Yes: No: Abstain: Absent: ________________________ Date:_________ Jason Collin, Mayor Attest: ________________________ Susan Blankenship, City Clerk First Reading: Published: Effective:
The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the South Lake Tahoe City Council. 64
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Buffer Maps
• Blue line represents buffer from schools
• Red line represents buffer from residential land uses
• Parcels in green represent the “preferred locations”
200’ Buffer
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500’ Buffer
1,000’ Buffer
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1,500’ Buffer
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Esri, HERE, Garmin, © OpenStreetMap contributors, and the GIS user community
LegendPreferred LocationsDiscouraged LocationsDiscouraged Locations 200 Foot Buffer
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City of South Lake TahoeReport to Planning Commission
Meeting Date: February 20, 2020
Title: Ordinance Regulating Wireless Communication Facilities Outside Rights-of-Way
Location: Citywide
Responsible Staff Member: Courtney Weiche, Assistant Planner (530) 542-6022
Background:
To date, the City has not adopted regulations specific to wireless communication facilities but instead has applied generally applicable permit requirements to this type of facility. This proposed ordinance is intended to address community concerns and increase local control over regulation of wireless facilities in compliance with federal and state law, which place some limitations on cities’ ability to regulate. This proposed ordinance regulates wireless facilities outside public rights-of-way, including on parcels within City limits under private or governmental ownership. Staff is developing separate regulations that would govern placement of wireless facilities in rights-of-wayand anticipates bringing those regulations forward for consideration in the near future.
The ordinance has been drafted to address community concerns raised on past wireless facility applications, as well as from two community forums held specifically for public input on the topic.
On November 20, 2019, the City held a community workshop to discuss possible standards for regulating wireless facilities deployment within the City. The workshop opened with presentationson existing City and Tahoe Regional Planning Agency (TRPA) regulations governing wireless facility approvals. A second presentation explained current State and Federal legislation on processing and approving wireless facilities. Attendees then broke into groups, identified issues and possible ways the City could address them.
On January 16, 2020, the City held a joint Planning Commission and City Council Special Meeting to review possible standards and regulations for a draft ordinance. During the meeting, staff presented a summary of public comments and concerns raised at the community workshop andprovided the City Council and Planning Commission with recommended standards to consider in their deliberations. After taking public comment, the City Council and Planning Commissionprovided direction to staff on specific elements to be included in an ordinance.
A summary of the workshop and materials from the Special Meeting, including presentations, are included as Attachments 04 and 05.
Issue and Discussion:
Approval of wireless facilities is governed by the Federal Telecommunications Act of 1996, which reduces impediments that could be imposed by local governments for the installation of wireless 70
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facilities. The Telecommunications Act preserves local government zoning authority as it relates to location and siting, but limits local regulation in three key ways: 1) a local ordinance may not “unreasonably” discriminate among providers of functionally equivalent services, 2) a local ordinance may not prohibit or effectively prohibit service; and 3) a local ordinance may not regulate based on environmental impacts from radio frequency emissions. The City’s authority in this area is limited to ensuring that a proposed installation complies with comprehensive emissions standards established by the Federal Communications Commission (FCC).
The proposed ordinance provides uniform and comprehensive regulations for the permitting, development, siting, installation, design, operation and maintenance of wireless facilities in the City. The outcomes and direction of the community workshop and special meeting are reflected in the attached proposed ordinance for consideration.
The main areas of focus address design, location, configuration, permitting process and public notification requirements. Highlighted standards, findings and conditions of approval required for permit approval are listed below.
The proposed Ordinance:
1. Ensures that the FCC standards regulating radio frequency emissions are strictly followed.
2. Prioritizes the location of proposed facilities in order of preference, from most preferred to discouraged.
3. Encourages locations of new facilities to be at least 200 feet from residential land uses.
4. Establishes scenarios when a special use permit and design review is required. Design review is required regardless of location.
5. Establishes design standards for the appearance and maintenance of facilities, including limiting the height and bulk of facilities and requires the concealment of accessory equipment to the extent feasible.
6. Expands property owner noticing requirements from 300 to 500 feet. In an effort to notify non-homeowner residents within 500 feet, the notice would be sent to both the physical address and assessor role mailing address. The applicant is responsible for posting notice ofapplication and contact information at the proposed site.
7. Where feasible, requires upgrades to existing facilities as new technology becomes available to replace larger more visually intrusive facilities with smaller facilities.
8. Requires a performance bond to ensure that facilities are promptly removed when they are no longer permitted or needed.
9. Requires the permittee to defend and indemnify the City from any liabilities arising from the permits issued by the City and the installation, operation and maintenance of the facilities.
In addition to design review and (when applicable) special use permit findings, approvals for a wireless facility must include the following Findings:
(1) The proposed wireless facility is in a preferred location; or the proposed wireless facility is in a discouraged location and the applicant has demonstrated through a meaningful
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comparative analysis that no more preferred location or support structure would be technically feasible and potentially available;
(2) The proposed wireless facility complies with all applicable development standards in this code and any other applicable regulations;
(3) The applicant has provided a signed statement that indicates its willingness to allow other carriers and site operators to collocate transmission equipment with the proposed wireless facility whenever technically feasible and aesthetically desirable in accordance with applicable provisions in this code;
(4) The applicant has demonstrated that the proposed wireless facility will comply with all applicable FCC regulations and guidelines for human exposure to RF emissions and will not, either individually or cumulatively with other transmitters in the vicinity, result in RF exposures that exceed the FCC’s maximum permissible exposure level for the general population; and
(5) In addition, use permit applications require the approval authority to make all the findings required for a use permit in accordance with section 6.55.610.B of this code.
Environmental Considerations:
The proposed City Code amendment is exempt from environmental review under CEQA, pursuant to Section 15061(b)(3), Common Sense Exemption, in that it can be seen with certainty that there is no possibility for this action to have a significant effect on the environment, and individual development applications will be reviewed under CEQA as they are proposed.
Adoption of this Ordinance would enact changes in land use regulations adding additional regulations and siting requirements on wireless facilities that would reduce their impacts, and it can be seen with certainty that its adoption will not have a significant effect on the environment because it will not allow for the development of any new or expanded wireless communication facilities anywhere other than where they were previously allowed under existing federal, state and local regulations.
Financial Implications:
The fiscal impacts associated with the ordinance are the costs associated with staff time to prepare the ordinance and staff report. Once the regulations are adopted and implemented, the application fees for a special use permit and design review would cover the cost of the discretionary approvals.
Policy Implications:
The adoption of this Ordinance is consistent with the City's General Plan. The City's General Plan provides goals and policies to preserve community character, aesthetics and environmental characteristics while also maintaining a strong, healthy economy and assuring the health and safety of the residential character of the community. Adoption of this Ordinance would further these goals and objectives by providing uniform regulations and standards for wireless facilities while reducing potential negative impacts to the extent feasible.
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Although the adopted City General Plan does not provide policy direction specific to wireless facilities, the following goals and policies may be relevant to the issue:
Policy ED-1.2: Economic and Environmental Balance. The City shall strive to maintain a balance between economic health and environmental health through careful and efficient planning.
Goal PQP-8 To promote the provision of adequate levels of utility service by private companies and to ensure that these are constructed in a fashion that minimizes their negative effects on surrounding development and maximizes energy efficiency.
Policy PQP-8.3: Promote Technology: The City shall promote technological improvements and upgrading of utility services.
Policy PQP-8.5: Digital Communications Infrastructure: The City shall facilitate installation of digital communications infrastructure.
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ORDINANCE REGULATING WIRELESS FACILITIES OUTSIDE OF RIGHTS-OF-WAY
Planning Commission
February 20, 2020
LEGAL FRAMEWORK
• Under the Telecom Act of 1996, local ordinance cannot:
• Unreasonably discriminate among providers
• Prohibit or effectively prohibit service
• Regulate based on environmental effects of RF emissions
• This ordinance regulates facilities outside ROW
• Does not regulate facilities in ROW
• Does not regulate certain collocations and modifications
• These will be subject of separate regulations brought to PC at March meeting
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PUBLIC INPUT
• November 20, 2019, the City held a community workshop to discuss possible standards for regulating wireless facilities deployment within the City
• On January 16, 2020, the City held a joint Planning Commission and City Council Special Meeting to review possible standards and regulations for a draft ordinance.
PERMIT PROCESS
• Two Permit typesDesign Review Permit or Special Use Permit
• Permit Type Dependent on Location• Preferred Locations
(1)parcels within the South Y Industrial Community Plan;(2)parcels within the Tahoe Valley Area Plan with a land use designation as
Commercial Mixed-Use Services;(3)parcels with a land use designation as Recreation or Conservation; and(4)parcels within Plan Area Statement 116 (Airport).
• Discouraged Locations(1)any location within where the facility would be 200 feet from a school, a
structure approved for residential use, a historic property or structure, or a historic district;
(2)any parcel with a General Plan Land Use Designation as Low-Density Residential or High-Density Residential;
(3)any location where the facility would be visible from the scenic corridor.
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• Preferred Configurations
(1) collocation on an existing structure with existing wireless facilities;
(2) installations on a rooftop;
(3) installations on a building facade;
(4) installations on a new or replacement pole within the public rights-of-way;
(5) installations on a new freestanding pole within the public rights-of-way;
(6) installations on a new freestanding structure outside the public rights-of-way.
ADDITIONAL APPLICATION REQUIREMENTS
• Pre-Application Meetings
• Require Application Submittal Appointments
• Encourage Community Meeting
• Expanded Noticing
• Peer and Independent Consultant Review
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STANDARDS
• Concealment
• Height/Setbacks
• Landscaping
• Security Measurements
• Lights
• Utility Concealment
• Towers and Freestanding Facilities
• Monopine Standards
• Building-Mounted Facilities
• Administrative Design Guidelines
CONDITIONS OF APPROVAL
• Permit Term and Renewal
• Build-Out Period
• Pre-Construction
• Post Installation Certification
• Noise Study
• Annual RF Compliance
• Site Maintenance
• Abandonment
• Insurance
• Performance Bonds
• Permit Revocation
• Amortization
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FINDINGS FOR APPROVAL
1. The proposed wireless facility is in a preferred location; or the proposed wireless facility is in a discouraged location and the applicant has demonstrated through a meaningful comparative analysis that no more preferred location or support structure would be technically feasible and potentially available;
2. The proposed wireless facility complies with all applicable development standards in this code and any other applicable regulations;
3. The applicant has provided a signed statement that indicates its willingness to allow other carriers and site operators to collocate transmission equipment with the proposed wireless facility whenever technically feasible and aesthetically desirable in accordance with applicable provisions in this code;
4. The applicant has demonstrated that the proposed wireless facility will comply with all applicable FCC regulations and guidelines for human exposure to RF emissions and will not, either individually or cumulatively with other transmitters in the vicinity, result in RF exposures that exceed the FCC’s maximum permissible exposure level for the general population; and
5. In addition, use permit applications require the approval authority to make all the findings required for a use permit in accordance with section 6.55.610.B of this code.
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From: Robert AaronTo: Sue BlankenshipCc: David Jinkens; David Benedict; VeitCarey; Rob BeltramoSubject: Watch: Firefighters Report Neurological Damage After Cell Tower Instal – Smart&Safe EMF SolutionsDate: Tuesday, February 25, 2020 9:51:54 AM
Ms Blanlkenship,Please add this to the record, in the planning Dept, Wtf Ordinance file.
https://www.smart-safe.com/blogs/news/watch-firefighters-report-neurological-damage-after-cell-tower-installation-near-their-station
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Susan BlankenshipOffice of the City Clerk1901 Lisa Maloff waySuite 206S Lake Tahoe Calif 96150
SusanPlease see this email with attached photographs gets into the Record for the appeal of the WTF proposed for 1360 Ski Run Boulevard, and the city of SLT WTF ordinance's discussed at the Workshop held on Jan 16 2020
I attest and affirm that the following statements are true, accurate, and within my personal knowledge.These Photographs are of a tree that was damaged in the first storm we had, about 6 weeks ago,on my property at 3585 Needle Peak Rd., SLT. As you can see, the diameter is larger than a utilitypole; it is a healthy tree, the limb's and slash have since been taken away. I did not take the photoat an angle to make it appear deceptive, it is just as in the photograph now, if any of the city staffwould like to document it they are welcome.I have no idea how old the utility poles are in S Lake Tahoe, or how many have been checked for rot belowsurface. I understand that there is documentation in the record that, on occasion a pole was chemically treatedfor dry rot. With the added 300 to 400 lbs already and with the probability of other carriers colocatingon Verizon’s Stealth Monopine WTF, and small WTFs there could be a possibility of something like this happening.I am just trying to help, better to be safe than sorry.
I have expressed no matter of mere concern but solely matters of substance, fact and law.Respectfully, David Benedict
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Courtney Weiche
From: melina wallisch <[email protected]>Sent: Friday, March 06, 2020 6:02 PMTo: John Hitchcock; Courtney WeicheSubject: Wireless OrdinanceAttachments: MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO FindLaw.pdf
Dear Mr. Hitchcock and Ms. Weiche, Thank you for taking the time to meet with us today. Following up on your inquiry, I attach hereto case law on a city’s police power to oversee and regulate utility agencies. The highlighted areas are especially noteworthy in this article: https://scientists4wiredtech.com/2019‐ca‐supreme‐court‐decision‐t‐mobile‐v‐san‐francisco/ I appreciate the opportunity to share this information with you. I hope to keep an ongoing dialogue with members of City Managers. Please feel free to contact me should you have any questions or thoughts. Best, Melina Wallisch
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1420 W. Gilman Blvd. #9030 Issaquah WA 98027
[email protected] www.wirelesspolicy.com
t 425.628.2666 f 206.219.6717
February 20, 2020
Via Email to:
Heather Stroud City Attorney [email protected]
Courtney Weiche Assistant Planner [email protected]
Kevin Fabino Development Services Director [email protected]
South Lake Tahoe Planning Commission RE: South Lake Tahoe CA Wireless Code Update
On behalf of Verizon Wireless, thank you for the opportunity to provide comment on the proposed wireless code update. Please include this letter and the attached redlines in the record for the Planning Commission's meeting this afternoon. We apologize for the delay in sending these comments but we were only made aware of this code update effort on Monday afternoon.
Verizon has asked Wireless Policy Group to work with city staff to assist in developing a workable code for small wireless facilities in the right of way that is compliant with federal law and addresses the aesthetic concerns of your community. My firm specializes in helping the wireless industry achieve those goals by working collaboratively with municipal government staff to outline technical challenges to the proposed code provisions and find acceptable alternatives.
While Verizon supports the general direction of updating standards for wireless facilities in general, and adding new standards to address small wireless facilities specifically , the proposed draft ordinance presents some significant feasibility issues.
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Verizon appreciates the chance to provide information to you about the enormous increase in consumer demand for data capacity and cell service, as well as input on the technical requirements for evolving macro and small wireless technology, both of which which are vital to address the existing and future wireless needs of your community. More people are using more wireless devices to do more things than ever before, like streaming video, medical monitoring, education interface, and uploading images. In fact, wireless data usage has increased exponentially since the introduction of the iPhone. First responders also rely on the wireless network to receive calls and to move patient information across their data mobile devices.
While small wireless facilities are a new tool in the toolbox, the macro network of taller towers and monopines will remain the backbone of the network, providing voice and data access in the event of outages and emergency, because of the battery and generator back up at those larger towers. Verizon is also working to stay ahead of the demand by adding fiber optic capacity and small wireless facilities to connect people where they need it most. Small wireless antennas are usually mounted on existing and replacement utility and street light poles. The low visual profile of small wireless facilities makes them an excellent solution for delivering capacity and coverage to residential neighborhoods, where residents and visitors expect to be able to use their mobile devices. Small wireless facilities will also deliver connections for smart communities services to boost the flow and safety of vehicle traffic, manage resources like light, power and water and improve the quality of life. Verizon is committed to working with local communities to provide the level of service residents and businesses need and expect.
Verizon has provided a redline of the proposed ordinance with a number of requested changes to make the code more workable and to comply with federal law. The following issues are of particular concern:
1. 6.75.030 states that the code addresses only wireless facilities on private property. Thecode also says that if the Council Policy that will govern small wireless facilities in theright of way is ever repealed, those facilities will then be regulated under the code.While small wireless facilities is defined, there is no process set out for their permits.Verizon requests a process be identified in the code.
2. Verizon requests that a section be added to address private utility easements onprivate/HOA property that function as right of way for utilities. Often, it is the only wayto serve developments on private roads. Verizon request an added section in theforthcoming Council Policy documents and in the code to address this.
3. Eligible Facilities Requests are applicable to all wireless facilities, whether in or out ofthe ROW. Verizon has proposed adding a section addressing those in this code, as witha cross reference in the forthcoming policy document.
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4. 6.75.100 B caps the height of wireless facilities at the zone height maximum. Theheight restrictions capping the height of the wireless facility at the maximum zoneheight allows no reasonable height for needed separation of antennas in the event ofcollocation or clearance from surrounding clutter, including trees, and structures. Thiswill materially inhibit the ability to deploy wireless facilities and will discouragecollocation of macro facilities. Verizon suggests developing reasonable heightrestrictions that are based on a showing that the facility is the minimum heightrequired to meet the technical service objective or the city's collocation goals.
5. 6.75.100 D requires a 1 to 1 setback for every foot of tower height. This setbackrequirements fails to recognize towers designed with break point technology thatengineers the top portion of the tower to fold over onto itself in extreme stress, ratherthan fall its full length from the base. Verizon has proposed language to address this inthe redline.
6. Verizon requests that the noise and landscape sections clarify which noise regulationsapply and remove small wireless facilities from the requirement to add landscaping.
7. 6.75.100 G bans the use of emergency generators within 250 feet of a residence.Certain facilities may be critical to keeping the network functioning during emergenciesor rolling power outages. Verizon requests that an exception be possible with ashowing of extraordinary need.
8. 6.75.100 K requires that the applicant place oversized conduit in to accommodatefuture collocators. This requirement is vague and places an unfair burden on applicantsto provide infrastructure for an unknown number of future collocations, if any. The sizeof the upsize for the conduit is not ascertainable because the needs of futurecollocators are unknown when the facility is built. The collocator should be responsiblefor that work.
9. 6.75.110 A (2) allows only one 10 year renewal of a wireless permit. The useful life of atower exceeds 20 years and the tower location height and design becomes integralelements of the network. Verizon requests that there be no limit on the number ofpermit renewals.
10. 6.75.110 A (2) requires that a facility be compliant with the code in place at the timeof renewal. No other land use requires that a facility be brought into compliance with anew code, absent significant renovations or expansion of the structure. Moreover,some elements of the structure, like height and location, cannot be altered without
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potentially compromising the wireless network of one or more carriers. Verizon requests that this requirement be deleted.
11. The insurance, indemnity and performance bond requirements in 6.75.110 are typicallyfound in a Master Lease Agreement for facilities placed on city owned assets. Theyshould not be required for any other private property sites and the requirements forattachment on city owned property should be reviewed for which types of insuranceare applicable.
Thank you for the opportunity to comment on the code. It is our goal to work collaboratively with staff to arrive at a code that preserves the look and feel of your community, while providing an efficient, workable and federally compliant process to deliver the service your residents, visitors and businesses have come to expect. Verizon requests additional time to work with you to address the feasibility and legal compliance issues noted above. A Verizon representative will be at your meeting today to answer any questions you might have.
Sincerely,
Kim Allen Wireless Policy Group, LLC on behalf of Verizon Wireless
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Ordinance 2020-XXX
Adopted by the City of South Lake Tahoe City Council
April 14, 2020
An Ordinance Adding Chapter 6.75 to the South Lake Tahoe City Code
Regarding Regulation of Wireless Facilities on Private Property
FINDINGS
A. To date, the City has not adopted regulations specific to wireless communication facilities but instead has applied generally applicable permit requirements to this type of facility.
B. The proposed ordinance is intended to address community concerns and increase local control
over regulation of wireless facilities outside public rights-of-way in compliance with federal and state law.
C. The City held a community workshop on November 20, 2019, and a joint Planning Commission
and City Council Special Meeting on January 16, 2020, to review possible standards and regulations for a draft ordinance, and the proposed ordinance incorporates input and direction received.
D. The Telecommunications Act, 47 U.S.C. § 332(c)(7)(B), preserves local government zoning
authority as it relates to location and siting, but limits local regulations in three key ways: (1) a local ordinance may not unreasonably discriminate among providers of functionally equivalent services; (2) a local ordinance may not prohibit or effectively prohibit service; and (3) a local ordinance may not regulate based on environmental impacts from radio frequency emissions.
Now, Therefore, the City Council of City of South Lake Tahoe does ordain as follows: SECTION 1. Title 6 of the South Lake Tahoe City Code is amended by adding a new Chapter 6.75 (Wireless Facilities on Private Property) as follows:
6.75 Wireless Facilities on Private Property
6.75.010 Purpose and Intent
6.75.020 Definitions
6.75.030 Applicability
6.75.040 Required Permits and Other Approvals
6.75.050 Administrative Orders and Regulations
Formatted: Highlight
Commented [KA1]: Verizon requests that a section be added to address private ROW utility easements on private / HOA property. Often, it is the only way to serve developments on private roads. For SWFs like this, we request an added section in the forthcoming Council Policy documents.
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6.75.060 Permit Applications
6.75.070 Public Notice
6.75.080 Approvals, Denials and Appeals
6.75.090 Location Standards
6.75.100 Design Standards
6.75.110 Standard Conditions for Approved Permits
6.75.120 Amortization
6.75.130 Special Exceptions for Federal or State Preemption
6.75.140 Violations
6.75.010 Purpose and Intent A. The City of South Lake Tahoe intends this chapter to establish reasonable, uniform and
comprehensive standards and procedures for 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 chapter are intended to, and should be applied to, consistent with federal and state 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. This chapter is also intended to reflect and promote the community interest by (1) ensuring that the balance between public and private interest is maintained on a case-by-case basis; (2) protecting the city’s visual character from potential adverse impacts or visual blight created or exacerbated by wireless 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 chapter 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.
6.75.020 Definitions
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The abbreviations, phrases, terms and words used in this chapter will have the following meanings assigned to them unless context indicates otherwise. Undefined phrases, terms or words in this chapter will have their ordinary meanings.
The definitions in this chapter shall control over conflicting definitions for the same or similar abbreviations, phrases, terms or words as may be defined in the South Lake Tahoe City Code. However, if any definition assigned to any phrase, term or word in this chapter conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.
“amateur station” means the same as defined by the FCC in 47 C.F.R. § 97.3, as may be amended or superseded, which defines the term as “a station in an amateur radio service consisting of the apparatus necessary for carrying on radiocommunications.” This term includes amateur radio antennas and related facilities used for amateur radio services.
“approval authority” means the city official or body responsible for application review and vested with authority to approve or deny such applications.
“Director” means the Director of Development Services of the City of South Lake Tahoe or the Director’s designee.
“eligible facilities request” means the same as defined in 47 U.S.C. § 1455(a)(2), as may be amended or superseded, and as interpreted by the FCC in 47 C.F.R. § 1.6100(b)(3), as may be amended or superseded.
“FCC” means the Federal Communications Commission, as constituted by the Communications Act of 1934, Pub. L: 73-416, 48 Stat. 1064, codified as 47 U.S.C. §§ 151 et seq. or its duly appointed successor agency.
“OTARD” means any “over-the-air reception device” subject to 47 C.F.R. §§ 1.4000 et seq., as may be amended or superseded, which generally includes satellite television dishes and certain fixed wireless antennas not greater than one meter in diameter.
“personal wireless service facilities” mean the same as defined in 47 U.S.C. § 332(c)(7)(C)(ii), as may be amended or superseded, which defines the term as facilities that provide personal wireless services.
“personal wireless services” mean 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.
“RF” means radio frequency.
“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.
“shot clock” means the presumptively reasonable time defined by the FCC in which a state or local government must act on an application or request for authorization to place, construct or modify personal wireless service facilities.
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“small wireless facility” means the same as defined by the FCC in 47 C.F.R. § 1.6002(l), as may be amended or superseded.
“stealth” means concealment techniques that completely screen all transmission equipment from public view and architecturally integrate the macro facility into the built environment such that, given the particular context, the average, untrained observer would not recognize the structure as a macro facility. Stealth concealment techniques include, without limitation: (1) transmission equipment placed completely within existing or replacement architectural features such that the installation causes no visible change in the underlying support structure; and (2) new architectural features that mimic or blend with the underlying or surrounding structures in style, proportion and construction quality.
“TRPA Code” means the Tahoe Regional Planning Agency Code of Ordinances.
“wireless facility” means a personal wireless service facility.
6.75.030 Applicability A. General. This chapter applies to all requests for the city’s regulatory authorization to construct,
install, operate, collocate, modify, relocate, remove or otherwise deploy wireless facilities on private property (whether owned by a private party or public entity) within the city’s territorial and jurisdictional boundaries, unless expressly exempted pursuant to this section 6.75.030.
B. Wireless Facilities on City Property. This chapter applies to permit applications for wireless
facilities on property or structures owned or controlled by the city; provided, however, that this chapter does not govern whether or under what terms and conditions the city would lease, license or otherwise allow a wireless facility on such property or structures.
C. Small Wireless Facilities. Notwithstanding anything in this chapter to the contrary, all small
wireless facilities are subject to a permit as specified in a city council policy, which may be adopted, amended and/or repealed by a resolution of the city council. All small wireless facilities shall comply with the city council’s policy. If the city council policy is repealed and not replaced, an application for a small wireless facility shall be processed pursuant to this chapter.
D. Eligible Facilities Requests. Notwithstanding anything in this chapter to the contrary, all
eligible facilities requests and other applications submitted for approval pursuant to Section 6409 are subject to a permit as specified in Section 6.75.085 below.
E. Other Exemptions. Notwithstanding anything in this chapter to the contrary, this chapter does
not apply to the following:
1. wireless facilities operated by the city for public purposes;
Commented [VzW2]: SWF is defined but not used in this Ordinance. No process is defined here for processing SWF permits. There should be an administrative review in this chapter in the event that the city council policy is repealed.
Formatted: Body Text, Right: 0.18", Numbered + Level: 1+ Numbering Style: A, B, C, … + Start at: 1 + Alignment:Left + Aligned at: 0.08" + Indent at: 0.58", Tab stops: 0.58", Left
Deleted: in a city council policy, which may be adopted, amended and/or repealed by a resolution of the city council. All eligible facilities requests and other applications submitted for approval pursuant to Section 6409 shall comply with the city council’s policy. If the city council policy is repealed and not replaced, all eligible facilities requests and other applications submitted for approval pursuant to Section 6409 shall be processed pursuant to this chapter.¶
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2. wireless facilities installed completely indoors and used to extend personal wireless services into a business or the subscriber’s private residence, such as a femto cell or indoor distributed antenna system;
3. OTARD antennas;
4. antennas and related transmission equipment used in connection with a duly authorized
amateur station; or
5. wireless facilities or other transmission equipment owned and operated by CPUC-regulated electric companies for use in connection with electrical power, generation, transmission and distribution facilities subject to CPUC General Order 131-D.
6.75.040 Required Permits and Other Approvals
A. Design Review Permit. A design review permit, subject to the director’s prior review and
approval, is required for all wireless facilities on private property in preferred locations as described in section 6.75.090 and do not require a special exemption under section 6.75.130.
B. Use Permit. A use permit, subject to the planning commission’s prior review and approval, is
required for all wireless facilities on private property that does not qualify for a design review permit.
C. Referral. The director may refer any application for a design review permit to the planning
commission when the director, in the director’s discretion, determines that the application implicates a significant planning concern.
D. Eligible Facilities Request. Applications for Eligible Facilities Requests are processed pursuant to Section 6.75.085.
E. Other Permits and Regulatory Approvals. In addition to any permit or approval required
under this chapter, the applicant must obtain all other permits and regulatory approvals (such as compliance with the California Environmental Quality Act) as may be required by any other federal, state, regional or local government agencies, which includes without limitation other any permits and/or approvals issued by other city departments or divisions. Furthermore, any permit or approval granted under this chapter or deemed granted or deemed approved by law shall remain subject to any and all lawful conditions and/or legal requirements associated with such other permits or approvals.
6.75.050 Administrative Orders and Regulations
In addition to the requirements in this chapter, the director may adopt such orders or regulations as the director deems necessary or appropriate to protect and maintain public health, safety, welfare and convenience. All wireless facilities must conform to all applicable orders and regulations issued by the director, unless the director, in the director’s discretion, grants a prior written waiver to deviate, in whole or in part, any such order or regulation. The director shall develop and publish guidelines to implement the waivers authorized by this section.
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6.75.060 Permit Applications A. Application Required. The approval authority shall not approve any requests for authorization
to construct, install, operate, collocate, modify, relocate, remove or otherwise deploy wireless facilities except upon a complete and duly filed application consistent with this section and any other written rules or requirements the city or the director may establish from time to time in any publicly-stated format.
B. Application Content. All applications for a permit must include all the information and
materials required by the director for the application. The city council authorizes the director to develop, publish and from time to time update or amend permit application requirements, forms, checklists, guidelines, informational handouts and other related materials that the director finds necessary, appropriate or useful for processing any application governed under this chapter. All such requirements must be in written form and publicly available to provide applicants with prior notice. Notwithstanding anything in this chapter to the contrary, all applications shall, at a minimum, require the applicant to demonstrate that the proposed project will be in planned compliance with all applicable health and safety laws, regulations or other rules, which includes without limitation all building codes, electric codes and all FCC rules for human exposure to RF emissions.
C. Application Submittal. Unless the director establishes an alternative submittal procedure
pursuant to section 6.75.050, all applications under this Chapter must be submitted to the city at a pre-scheduled appointment with the department. Applicants may generally submit one application per appointment but may schedule successive appointments for multiple applications whenever feasible and not prejudicial to other applicants. The department shall use reasonable efforts to provide the applicant with an appointment in writing within five working days after the department receives a written or email request and, if applicable, confirms that the applicant complied with the pre- submittal conference requirement. Any application received without an appointment, whether delivered in-person, by mail or through any other means, will not be considered duly filed.
D. Optional Pre-application Conferences. The department shall provide prospective applicants
with the opportunity to schedule and attend a pre-application conference with department staff. The city strongly encourages pre-application conferences for all proposed projects that: (1) require planning commission approval; (2) the prospective applicant believes will qualify as a stealth facility; and/or (3) involve any wireless facilities proposed to be located in or within 200 feet from a residential land use category. The pre-application conference 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 or existing wireless facility, such as compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other city departments and/or divisions 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 department 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-application conference.
Deleted: stated
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Commented [KA4]: The shot clock begins to run when the application is proffered under federal law. FCC Order, ¶145.
Formatted: Strikethrough
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E. Community Meetings. The city strongly encourages applicants to conduct community meetings for all proposed projects requiring a use permit. Community meetings may be conducted before or after submittal. Public notice for a community meeting should be given in the manner described in section 6.75.070.C, except that the Applicant is responsible for the cost and implementation of noticing.
F. Applications Deemed Withdrawn. To promote efficient review and timely decisions, any
application governed under this chapter will be automatically deemed withdrawn by the applicant when the applicant fails to tender a substantive response to the department within 90 calendar days after the department deems the application incomplete in a written notice to the applicant. The director, in the director’s discretion, may grant a written extension for up to an additional 30 calendar days when the applicant submits a written request prior to the 90th day that shows good cause to grant the extension. Good cause for an extension shall include, without limitation, delays due to circumstances outside the applicant’s reasonable control.
G. Peer and Independent Consultant Review. The city council authorizes the director to, in the
director’s discretion, select and retain an independent consultant with specialized training, experience and/or expertise in telecommunications issues satisfactory to the director in connection with any permit application. The director may request an independent consultant review on any issue that involves specialized or expert knowledge in connection with wireless facilities deployment or permit applications for wireless facilities, which include without limitation: (A) permit application completeness and/or accuracy; (B) pre-construction planned compliance with applicable regulations for human exposure to RF emissions; (C) post-construction actual compliance with applicable regulations for human exposure to RF emissions; (D) whether and to what extent a proposed project will comply with applicable laws; (E) the applicability, reliability and/or sufficiency of any information, analyses or methodologies used by the applicant to reach any conclusions about any issue with the city’s discretion to review; and (F) any other issue identified by the director that requires expert or specialized knowledge, which includes, without limitation, any issues related to an exception requested by the applicant pursuant to section 6.75.130. The director may request that the independent consultant prepare written reports, testify at public meetings, hearings and/or appeals and attend meetings with city staff and/or the applicant. Subject to applicable law, in the event that the director elects to retain an independent consultant in connection with any permit application, the applicant shall be responsible for the actual and reasonable costs in connection with the services provided, which may include without limitation any actual and reasonable costs incurred by the independent consultant to attend and participate in any meetings or hearings directly related to the permit application. Before the independent consultant may perform any services, the applicant shall tender to the city a deposit in an amount equal to the estimated actual and reasonable cost for the services to be provided, as determined by the director and the basis of the cost estimate provided in writing to the applicant. The director may request additional deposits as reasonably necessary to ensure sufficient funds are available to cover the reasonable costs in connection with the independent consultant’s services. If the deposit exceeds the total costs for consultant’s services, the director shall promptly return any unused funds to the applicant after the wireless facility has been installed and passes a final inspection by the director or his or her designee. If the reasonable costs for the independent consultant’s services exceed the deposit, the director shall invoice the applicant for the balance. The city shall not issue any building permit to any applicant with any unpaid invoices.
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6.75.070 Public Notice A. Posted Notice. Within 10 business days after an application is duly filed with the department,
the applicant shall (1) post notice on the proposed project site in a location near to and visible from the public rights-of-way and (2) provide the department with evidence that such notice has been posted. The applicant is responsible for maintaining and replacing the sign as necessary during the duration of the application review process until the approval authority acts on the application. The sign shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for the duration of the notice period. The sign shall be at least two feet wide by three feet tall, placed in a conspicuous location at the project site where it will be visible from the nearest public right-of-way. The sign shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians or other users in the public right-of-way. The city encourages applicants to consult with the department on placement locations to avoid any potential hazards. In addition to the content requirements in section 6.75.070.D, the posted notice shall include a URL for the city’s website page where application information can be obtained once uploaded in accordance with section 6.75.070.B.
B. Website Notice. Within 10 business days after an application is duly filed with the department,
the department shall post notice on the city’s website. C. Public Hearing Notice. At least 10 calendar days before any public hearing in connection with
an application for a wireless facility, the director shall: (1) mail notice to all real property owners as shown on the most recent equalized assessment roll within 500 feet from the property on which the wireless facility is proposed; (2) mail notice to each physical address for all properties within 500 feet from the property on which the wireless facility is proposed; and (3) publish notice in at least one newspaper of general circulation within the city. In addition to the content requirements in section 6.75.070.D, public hearing notices shall also include the date, time and location for the public hearing and the URL to the project webpage on the city’s website.
D. Notice Content. In addition to any other requirements, notices required under sections
6.75.070.A, B and C shall include: (1) a general project description with photo simulations; (2) the applicant’s identification and contact information as provided on the application submitted to the city; (3) contact information for the department for interested parties to request additional information and submit comments; and (4) a statement as to whether a public hearing will be required for the application or not.
E. Decision Notices. Within five calendar days after the approval authority acts on an application
governed under this chapter or before the shot clock expires (whichever occurs first), the director shall send a written notice to the applicant. If the approval authority denies the application (with or without prejudice), the written notice to the applicant must contain (1) the reasons for the denial and (2) instructions for how and when to file an appeal.
6.75.080 Approvals, Denials and Appeals
A. Required Findings. The approval authority may approve wireless communication facility
applications only when the approval authority makes all the following findings:
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1. the proposed wireless facility is in a preferred location; or the proposed wireless facility is in a discouraged location and the applicant has demonstrated through a meaningful comparative analysis that no more preferred location or support structure would be technically feasible and potentially available;
2. the proposed wireless facility complies with all applicable development standards in this
code and any other applicable regulations;
3. the applicant has provided a signed statement that indicates its willingness to allow other carriers and site operators to collocate transmission equipment with the proposed wireless facility, if owned by applicant, whenever technically feasible and aesthetically desirable in accordance with applicable provisions in this code;
4. the applicant has demonstrated that the proposed wireless facility will comply with all
applicable FCC regulations and guidelines for human exposure to RF emissions and will not, either individually or cumulatively with other transmitters in the vicinity, result in RF exposures that exceed the FCC’s maximum permissible exposure level for the general population; and
5. In addition, use permit applications require the approval authority to make all the findings
required for a use permit in accordance with section 6.55.610.B of this code. B. Conditional Approvals; Denials without Prejudice. Subject to any applicable federal or
state laws, nothing in this chapter is intended to limit the approval authority’s ability to conditionally approve or deny without prejudice any application governed under this chapter as may be necessary or appropriate to protect and promote the public health, safety and welfare, and to advance the goals or policies in the general plan and any applicable specific plan, this code, or this chapter.
C. Appeals. Within 10 calendar days after the approval authority approves or denies any
application under this chapter, any interested person may file an appeal for cause in accordance with the provisions in chapter 2.35 of this code; provided, however, that (1) the notice provisions in this chapter shall control over those in chapter 2.35 and (2) appeals from an approval shall not be permitted when based solely on the environmental effects from RF emissions that are compliant with applicable FCC regulations and guidelines.
6.75.085 Eligible Facilities Requests
(A) Definitions
1. “Base Station” means a structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network, except that a base station does not include or encompass a Tower or any equipment associated with a Tower, as defined herein. Base Station includes: i. Equipment associated with wireless communications services such as
private broadcast and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul that, at the time the relevant application is filed with the City under this Article, has been reviewed and approved under the applicable
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zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
ii. Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration, that, at the time the relevant application is filed with the City under this Article, has been reviewed and approved under the applicable state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing such support.
Base Station does not include any structure that, at the time the relevant application is filed with the City under this Article, does not support or house equipment described in sub-paragraphs i. and ii. above.
2. “Eligible Facilities Request” means a request for modification of an existing Tower that does not substantially change the physical dimensions of such Tower involving
(i) collocation of new transmission equipment, (ii) removal of transmission equipment, or (iii) replacement of transmission equipment.
3. “Eligible Support Structure” means any Tower as defined at 47 U.S.C. § 153, provided it exists at the time the relevant application is filed with the City under this Article.
4. “Substantial Change” means a modification that substantially changes the physical dimensions of an eligible support structure and that meets any of the following criteria:
i. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10% or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10% or more than ten feet, whichever is greater;
ii. Changes in height should be measured from the original support structure in cases where deployments are or will be separated horizontally, such as on buildings' rooftops; in other circumstances, changes in height should be measured from the dimensions of the tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to the passage of the Spectrum Act.
iii. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;
iv. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no pre-existing ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10% larger in height or overall volume than any other ground cabinets associated with the structure;
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v. It entails any excavation or deployment outside the current wireless communications facility site;
vi. It would defeat the concealment elements of the eligible support structure; or
vii. It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment, provided, however, that this limitation does not apply to any modification that is non-compliant only in a manner that would not exceed the thresholds identified in (i)-(iv) above.
5. “Transmission Equipment” means equipment that facilitates transmission for any FCC licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(B) Application. The City shall prepare, and from time to time revise and make publicly
available, an application form which shall be limited to the information necessary for the City to consider whether an application is an eligible facilities request. Such information may include, without limitation, whether the project: (i) Results in a substantial change; or (ii) Violates a generally-applicable law, regulation, or other rule codifying
objective standards reasonably related to public health and safety. (C) Type of Review. Upon receipt of an application for an eligible facilities request
pursuant to this Section, the City shall review such application to determine whether the application so qualifies
(D) Timeframe for Review. Subject to the tolling provisions of subsection (5)(c) below, within sixty (60) days of the date on which an applicant submits a complete application under this Section, the City shall act on the application unless he or she determines the application is not covered by this subsection.
(E) Tolling of the Timeframe for Review. The 60-day review period begins to run when the application is filed, and may be tolled only by agreement of the City and applicant, or in cases where the City determines the application is incomplete:
(i) To toll the timeframe for incompleteness, the City must provide written notice to the applicant within thirty (30) days of receipt of the application, specifically delineating all missing documents or information required in the application;
(ii) The timeframe for review begins running again when the applicant makes a supplemental written submission in response to the City's notice of incompleteness; and
(iii) Following a supplemental submission, the City will notify the applicant within ten (10) days that the supplemental submission did not provide the information identified in the original notice delineating missing information, or the application will be deemed complete as of the date of the supplemental submission. The timeframe is tolled in the case of second or subsequent notices. In the case of a second or subsequent notice of incompleteness, the City may not specify missing information or documents that were not delineated in the original notice of incompleteness.
(F) Failure to Act. In the event the City fails to act on a request seeking approval for an
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eligible facilities request within the timeframe for review (accounting for any tolling), the request shall be deemed granted. In such event, the grant becomes effective when the applicant notifies the City in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.
(G) Interaction with Telecommunications Act 47 U.S.C. § 332(c)(7). If the City determines the applicant's request is not an eligible facilities request as defined in this Article, the presumptively reasonable timeframe under 47 U.S.C. § 332(c)(7), as prescribed in FCC Order 14-153, part VI ("Shot Clock" order), will begin to run from the issuance of the City's decision that the application is not a covered request. To the extent such information is necessary, the City may request additional information from the applicant to evaluate the application in accordance with the review process set forth in 47 U.S.C. § 332(c)(7).
6.75.090 Location Standards
A. Preface to Location Standards. This section set out criteria to determine the preferred
location and support structure for wireless facilities. Subsection B describes general plan areas and land use designations where wireless facilities are generally most preferred. Subsection C provides specific locations where wireless facilities are discouraged. It is possible for a proposed facility to be simultaneously in a “preferred” and “discouraged” location, such as a commercial use within the Tahoe Valley Area Plan that happens to be within 200 feet from an historic structure. In such cases, the location shall not be deemed to be a “preferred” location. Finally, in situations where the applicant must consider alternative sites, preferences for facilities on land use classifications and support structures are ranked in subsection D and subsection E, respectively.
B. Preferred Locations. All applicants must, to the extent technically feasible and potentially available, propose new facilities in a preferred location. No alternative sites analysis is required for new stealth facilities proposed in any preferred location. For all other new facilities, the approval authority shall consider whether any more preferred location would be technically feasible or potentially available. The following locations are all considered “preferred locations” so long as the site is not simultaneously in a discouraged location under section 6.75.090.C:
1. parcels within the South Y Industrial Community Plan; 2. parcels within the Tahoe Valley Area Plan with a land use designation as
Commercial Mixed-Use Services; 3. parcels with a land use designation as Recreation or Conservation; and 4. parcels within Plan Area Statement 116 (Airport).
C. Discouraged Locations. When an application involves a new facility in a discouraged
location, the approval authority shall consider whether any alternative site within a preferred location would be technically feasible and potentially available. If no such alternative exists, the approval authority shall consider whether any less discouraged location would be technically feasible and potentially available. The following locations are all “discouraged” and ordered from most discouraged to least discouraged:
1. any location within where the facility would be 200 feet from a school, a structure
approved for residential use, a historic property or structure, or a historic district; 2. any parcel with a General Plan Land Use Designation as Low-Density Residential or
High- Density Residential;
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Commented [KA8]: The only basis for this preference would be a concern for health effects, which may not be considered under federal law.
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3. any location where the unstealthed facility would be visible from the scenic corridor. D. Land Use Preferences. Within any area plan, community plan, or plan area, applicants must
propose new facilities on parcels with the most preferred land use designation whenever technically feasible and potentially available. Applications must include a written justification, supported by factual and verifiable evidence, that shows no location with a more preferred land use designation is technically feasible and potentially available, unless the proposed facility is in the most preferred land use designation or is a stealth facility in a preferred location. The following General Plan land use designations are ranked from most preferred to least preferred:
1. Special District; 2. Recreation (R); 3. Conservation (C); 4. Town Center; 5. Tourist Center (TC) 6. Neighborhood Center (NC); 7. High-Density Residential (HDR); and 8. Low-Density Residential (LDR).
E. Support Structures. The approval authority shall consider whether any more preferred
support structure would be technically feasible and potentially available. The approval authority may require the applicant to use a more preferred support structure when the alternative is technically feasible and potentially available. The city’s preferences for support structures are as follows, order from most preferred to least preferred:
1. collocation on an existing structure with existing wireless facilities; 2. installations on a rooftop; 3. installations on a building facade; 4. installations on a new or replacement pole within the public rights-of-way; 5. installations on a new freestanding pole within the public rights-of-way; 6. installations on a new freestanding structure outside the public rights-of-way.
6.75.100 Design Standards
A. Concealment. All wireless facilities must be concealed to the maximum extent feasible with
design elements and techniques that mimic or blend with the underlying support structure, surrounding environment and adjacent uses.
B. Overall Height. All wireless facilities must be the minimum height needed to achieve the
network objective and the city's goal for collocation. C. Setbacks. All wireless facilities must be compliant with all setback requirements applicable to
structures on the underlying parcel, unless an exception is granted by the Director upon a showing of good cause by the permittee. Setback requirements shall not apply to wireless communication facilities collocated on an existing or replacement electrical transmission structure or facilities in the public right-of-way.
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Commented [VzW10]: The city has limited the application of this Chapter to wireless facilities on private property.
Commented [VzW11]: The height restrictions capping the height of the wireless facility at the maximum zone height allows no reasonable height for separation in the event of collocation or clearance from clutter, including trees, and structures. This will materially inhibit the ability to deploy wireless facilities and will discourage collocation of macro facilities. Verizon suggests developing reasonable height restrictions with the ability to exceed such height restrictions with a showing that the facility is the minimum height required to meet the technical service objective.
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D. Fall Zone. All freestanding towers outside the public rights-of-way must be setback from habitable structures approved for residential occupancy by a distance equal to one horizontal foot for every foot of the tower height, or the distance from the highest engineered break point to the top of the structure. The approval authority may waive the setback requirement for freestanding towers that meet Class 3 structural standards for critical infrastructure as defined in the most current revision of the ANSI/TIA-222 Structural Standard for Antenna Supporting Structures, Antennas and Small Wind Turbine Support Structures.
E. Noise. All wireless facilities must be compliant with all applicable noise regulations, which
includes, without limitation, any noise regulations in the TRPA Code or SLTMC noise regulations. The approval authority may require the applicant to incorporate appropriate and technically feasible noise-baffling materials and/or noise- mitigation strategies to avoid mitigate any ambient noise from equipment that exceed reasonably likely to exceed the permissible noise limits under the applicable noise regulations.
F. Landscaping. All wireless facilities, other than small wireless facilities, proposed to be placed
in a landscaped area must include landscape features (which may include, without limitation, trees, shrubs and ground cover) and a landscape maintenance plan. The approval authority may approve alternative screening features to screen the wireless facility from public view, avoid or mitigate potential adverse impacts on adjacent properties or otherwise enhance the concealment required under this chapter. All plants proposed or required must be native and/or drought-resistant and be consistent with the TRPA Home Landscaping Guide for Lake Tahoe and Vicinity.
Security Measures. To prevent unauthorized access, theft, vandalism, attractive nuisance or other hazards, reasonable and appropriate security measures, such as fences, walls and anti- climbing devices, may be approved. Security measures shall be designed and implemented in a manner that enhances or contributes to the overall concealment, and the approval authority may condition approval on additional concealment elements to mitigate any aesthetic impacts, which may include, without limitation, additional landscape features. The approval authority shall not approve barbed wire, razor ribbon, electrified fences or any similar security measures. This shall not apply to wireless facilities in the right of way.
G. Secondary Power Sources. The approval authority may approve secondary or backup power
sources and/or generators on a case-by-case basis. The approval authority shall not approve any permanent diesel generators or other similarly noisy or noxious generators in or within 250 feet from any residential structure absent a showing of extraordinary need; provided, however, the approval authority may approve sockets or other connections used for temporary backup generators.
H. Lights. Wireless facilities may not include exterior lights other than as may be required under
Federal Aviation Administration, FCC, other applicable federal or state governmental regulations. All exterior lights permitted or required to be installed must be installed in locations and within enclosures that mitigates illumination impacts on other properties to the maximum extent feasible. Any lights associated with the electronic equipment shall be appropriately shielded from public view. Any light beacons or lightning arresters shall not be included in the overall height calculation.
I. Signage; Advertisements. All wireless facilities must include signage that accurately
identifies the equipment owner/operator, the owner/operator’s site name or identification
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Commented [VzW12]: This setback requirements fails to recognize towers designed with break point technology that engineers the top portion of the tower to fold over onto itself in extreme stress, rather than fall its full length from the base.
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Commented [VzW13]: Verizon requests that the Ordinance reference the applicable noise regulations.
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Commented [VzW14]: The noise regulations should be limited to specific and objective requirements.
Commented [VzW15]: Verizon requests that the Ordinance reference the applicable landscape regulations. As currently drafted the requirements as vague. Typically, requirements for landscape buffers, required landscape features, etc. are clearly articulated here or elsewhere in the code.
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Commented [KA16]: This requirement will adversely affect service during emergency or scheduled power outages.
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number and a toll-free number to the owner/operator’s network operations center. Wireless facilities may not bear any other signage or advertisements unless expressly approved by the approval authority, required by law or recommended under FCC or other federal governmental agencies for compliance with RF emissions regulations.
J. Future Expansion. Except for wireless facilities in the ROW, to the extent technologically
feasible and aesthetically desirable, all new wireless facilities support structures should be designed and sited in a manner that accommodates potential future collocations and other expansions that can be integrated into the proposed wireless facility or its associated structures with no or negligible visual changes to the outward appearance. The approval authority may waive the requirements in this section when the approval authority determines future expansions at a proposed wireless facility would be aesthetically undesirable.
K. Utilities. All cables and connectors for telephone, primary electric and other similar utilities
must be routed underground in conduits to the extent feasible and where other above ground utilities are required to be placed underground. large enough to accommodate future collocated wireless facilities. To the extent feasible, undergrounded cables and wires must transition directly into the pole base without any external doghouse. Meters, panels, Disconnect switches and other associated improvements must be placed in inconspicuous locations to the extent possible. The approval authority may approve new overhead utility lines or service drops where compliance with the undergrounding requirements would significantly increase the project cost. Permanent microwave or other wireless backhaul is discouraged. when it would involve an unconcealed antenna.
L. Parking; Access. Any equipment or improvements constructed or installed in connection
with any wireless facilities must not reduce any parking spaces below the minimum requirement for the subject property. Whenever feasible, wireless facilities should use existing parking and access rather than construct new parking or access improvements. Any new parking or access improvements should be the minimum size necessary to reasonably accommodate the proposed use and to comply with applicable safety codes.
M. Compliance with Laws. All wireless facilities must be designed and sited in compliance with all applicable federal, state, regional, and local laws, regulations, rules, restrictions and conditions, which includes without limitation the California Building Standards Code, Americans with Disabilities Act, general plan and any applicable specific plan, the South Lake Tahoe City Code and any conditions or restrictions in any permit or other governmental approval issued by any public agency with jurisdiction over the project.
N. Towers and Freestanding Wireless Facilities. In addition to all other design requirements in
this chapter, the following provisions shall be applied to an application for a tower or other freestanding wireless facility:
1. Tower-Mounted Equipment. All tower-mounted equipment must be mounted as close to
the vertical support structure as possible to reduce its overall visual profile. Applicants must mount non-antenna, tower-mounted equipment (including, but not limited to, remote radio units/heads, surge suppressors and utility demarcation boxes) directly behind the antennas to the maximum extent feasible. All tower-mounted equipment, cables and hardware must be painted with flat/neutral colors subject to the approval authority’s prior approval.
2. Ground-Mounted Equipment. All ground-mounted equipment must either be concealed
underground, or concealed within an existing or new structure, or other enclosure(s)
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subject to the approval authority’s prior approval. The approval authority may require additional concealment elements as the approval authority finds necessary or appropriate to blend the ground-mounted equipment, enclosure and/or other improvements into the natural and/or built environment.
3. Monopines. In addition to all other design requirements in this chapter, the following
provisions shall be applied to an application for a monopine:
a. Shape and Branching. Monopines shall be gradually tapered from bottom to top to resemble the natural conical pine-tree shape, with shorter branches at the top and wider branches at the bottom. All monopines shall include a “crown” or “topper” installed above the monopole to create a natural point at the top. Branches shall begin at no greater than 15 feet above ground level and maintain at least 3.5 branches per vertical foot when averaged between the bottom-most branch and the highest point on the monopole (excluding any “crown” or “topper” installed above the monopole).
b. Overall Height. To maintain a natural appearance, a monopine may not exceed more
than 10 feet above the average height of mature natural trees within the vicinity or the maximum height allowed by the TRPA Code; whichever is more restrictive. Facilities may exceed this height limit with a conditional use permit. The approval authority shall consider the future mature height of new and existing trees when evaluating compliance with this standard.
c. Bark Cladding. The entire tower above any fence line shall be fitted with faux-pine bark
cladding, painted or colored with browns or other appropriate earth tones to mimic natural pine bark.
Equipment Concealment. All antennas, accessory equipment, cross arms, hardware, cables and other attachments to the monopine must be painted or colored with a flat greens, browns or other appropriate earth tones to blend into the faux pine branches. All antennas, remote radio units, tower-mounted amplifiers and other similar visible equipment larger than one cubic foot shall be fitted with a faux-pine “sock” with faux-pine needles or painted to match the branches or the trunks. No tower-mounted equipment shall be permitted to protrude beyond the branch canopy such that it would materially alter the tapered pine shape.
d. Material Selection and Approval. All materials and finishes used to conceal the
monopine shall be subject to prior approval by the department. Applicants shall use only high-quality materials to conceal the wireless facility. The applicant shall use color- extruded plastics for elements such as the faux-pine needles and faux-bark cladding to prolong the like-new appearance and reduce fading caused by exposure to the sun and other weather conditions.
O. Building-Mounted Wireless Facilities. In addition to all other design requirements in this
chapter, the following provisions shall be applied to an application for a wireless facility installed on a building rooftop or facade:
1. Architectural Integration. All applicants should, to the extent feasible, propose new non-
tower wireless facilities that are completely concealed and architecturally integrated into the existing facade or rooftop features to the maximum extent practicable with no minimal
Commented [KA22]: This restriction will limit collocation.
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Commented [VzW23]: There are very few if any instances where a facility would have no visible impact. Even a facility that is entirely screened from view may have some visible impact due a change in the size or shape of existing structure.
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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, when integration with existing building features is not feasible, the applicant should 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, cupolas, steeples, chimneys and water tanks). Facilities must be located behind existing parapet walls or other existing screening elements to the maximum extent feasible.
2. Rooftop Wireless Facilities. All rooftop-mounted equipment must be screened from public
view with concealment measures that match the underlying structure in proportion, quality, architectural style and finish to the maximum extent practicable. The approval authority may approve unscreened rooftop equipment only when it expressly finds that such equipment is effectively concealed due to its low height and/or setback from the roofline.
3. Facade-Mounted Wireless Facilities. When wireless facilities cannot be placed behind
existing parapet walls or other existing screening elements, the approval authority may approve facade-mounted equipment in accordance with this section 6.75.100.P(3). All facade-mounted equipment must be concealed behind screen walls and mounted as flush to the facade as practicable. The approval authority may not approve “pop-out” screen boxes unless the design is architecturally consistent with the original building or support structure. Except for parcels located within the South Y Industrial Community Plan or the Tahoe Valley Area Plan Commercial Mixed-Use Services District, the approval authority may not approve any exposed facade-mounted antennas, including but not limited to exposed antennas painted to match the facade. To the extent feasible, facade-mounted equipment must be installed on the facade(s) along the building frontage that is the least prominent or publicly visible.
P. Administrative Design Guidelines. The director may develop, and from time to time amend,
design guidelines consistent with the generally applicable design regulations to clarify the aesthetic and public safety goals and standards in this chapter for city staff, applicants and the public. The design guidelines shall provide more detailed standards to implement the general principals articulated in this section and may include specific standards for particular wireless facilities or site locations but shall not unreasonably discriminate between functionally equivalent service providers. The design guidelines, and any subsequent amendments, shall not be effective unless approved by a resolution adopted by the city council. If a conflict arises between the development standards specified in this chapter and the design guidelines adopted under this section, the development standards specified in this chapter shall control.
6.75.110 Standard Conditions for Approved Permits
A. General. Except as may be authorized in subsection B, all wireless facilities approved under this chapter or deemed approved by the operation of law shall be automatically subject to the following conditions:
1. Permit Term; Approval Applies to Land. This permit will automatically
expire 10 years and one day from its issuance unless California Government Code section 65964(b) authorizes the city to establish a shorter term for public safety or substantial land use reasons. Any other permits or approvals
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issued in connection with any collocation, modification or other change to this wireless facility, which includes without limitation any permits or other approvals deemed-granted or deemed-approved under federal or state law, will not extend this term limit unless expressly provided otherwise in such permit or approval or required under federal or state law. This permit shall run with the land and shall be valid for the term specified in these conditions of approval. No change in ownership of the wireless facility, the site, or the subject property shall affect the permit term. This permit may not be transferred to another site or property.
2. Permit Renewal. The permittee may apply for permit renewal not more than
one year before this permit expires. The permittee must demonstrate that the subject wireless facility complies with all the conditions of approval associated with this permit. and all applicable provisions in this code that exist at the time the decision to renew or not renew 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 code or other applicable law. Upon renewal, this permit will automatically expire 10 years and one day from its issuance, unless an additional term of renewal is requested.
3. Build-Out Period. This permit will automatically expire 36 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 wireless facility, which includes without limitation any permits or approvals required by any federal, state or local public agencies with jurisdiction over the subject property, support structure or the wireless facility and its use. The permittee may request in writing, and the director may grant in writing, one six-month extension to the build-out period if the permittee submits substantial and reliable written evidence demonstrating justifiable cause for a six-month extension. If the build-out period (and any extension) finally expire, the permit shall be automatically void but the permittee may resubmit a complete application, which includes, without limitation all application fees, for the same or substantially similar project.
4. Pre-Construction. The permittee shall stake the site, install temporary best
management practices and request a pre-grade inspection prior to the commencement of any construction. Construction can only occur after the inspection is approved.
5. Approved Plans. Any construction plans submitted to the building official shall incorporate the permit, together with all conditions of approval and the photo simulations associated with the permit (collectively, the “approved plans”). The permittee must construct, install and operate the wireless facility in substantial compliance with the approved plans. Any alterations, modifications or other changes to the approved plans, whether requested by the permittee or required by other departments or public agencies with jurisdiction over the wireless facility, shall be subject to the director’s prior review and approval. After the director receives a written request to approve an alteration, modification or other change to the approved plans, the director may refer the request to the original approval authority if the director finds that it substantially deviates from the approved plans or implicates a
Commented [KA24]: What is the type of process for permit renewal? It can take longer than a year to get renewal approval if a public hearing and appeal is part of the process.
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Commented [KA25]: The design, location and height become essential elements of the deployment once a facility is on air. Changes to those elements c, after notice could impair existing service.
Commented [KA26]: 20 years is not the useful life of a tower and the location of a tower can become more essential over time as it becomes a needed part of one or more provider networks. Other land uses are not required to reentitle.
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significant or substantial land-use concern
6. Post-Installation Certification., the director, in addition to any other actions or remedies authorized by the permit, this code or other applicable laws, may require the permittee to commission a noise study by a qualified professional to evaluate the facility’s compliance.
7. Compliance with Applicable 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 wireless facility or any use or activities in connection with the use authorized in this permit, which includes without limitation any laws applicable to human exposure to RF emissions and any standards, specifications or other requirements identified by the director (such as, without limitation, those requirements affixed to an encroachment permit). If the director finds good cause, supported by substantial evidence, to believe that the wireless facility is not in compliance with any laws applicable to human exposure to RF emissions, the director may require the permittee to submit a written report certified by a qualified radio frequency engineer familiar with the wireless facility that certifies that the wireless facility is in compliance with all such laws. The director may order the facility to be powered down if, based on substantial objective evidence, the director finds that the wireless facility is in fact not in compliance with any laws applicable to human exposure to RF emissions until such time that the permittee demonstrates actual compliance with such laws. 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 this code, this chapter, 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 this code, this chapter, any permit, any permit condition or any applicable law or regulation.
8. Annual RF Compliance Affidavit. On or before January 30th in each
calendar year, the permittee acknowledges and agrees that the permittee shall submit to the department an affirmation, under penalty of perjury, that the proposed installation will be FCC compliant, because it will not cause members of the general public to be exposed to RF levels that exceed the maximum permission exposure levels deemed safe by the FCC.
9. Site Maintenance. The permittee shall keep the site area, which includes, without limitation, any and all improvements, equipment, structures, access routes, fences and landscape features, in a neat, clean, safe and code compliant condition in accordance with the approved plans and all conditions in this permit. The permittee shall keep the site area free from all litter and debris at all times. Routine maintenance within residential zones shall be restricted to normal construction work hours specified in the TRPA Code (generally 8
a.m. to 6:30 p.m.). The permittee, at no cost to the city, shall remove and remediate any
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Ordinance 2020-XXX February 20, 2020 Page 20 of 24
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.
10. Landscape Features. 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. Any replacement tree must be substantially the same size as the damaged tree or as otherwise approved by the city. The permittee shall not at all times be responsible to maintain any replacement landscape features.
11. Abandonment. The permittee shall notify the director when the permittee
intends to abandon or decommission the wireless facility authorized under this permit. In addition, the wireless facility authorized under this permit shall be deemed abandoned if the wireless facility has not operated for any continuous six-month period and the permittee fails to resume operations within 90 days from a written notice from the director. Within 90 180 days after a wireless facility is abandoned or deemed abandoned, the permittee and/or property owner shall completely remove the 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 South Lake Tahoe City Code. In the event that neither the permittee nor the property owner complies with the removal and restoration obligations under this condition within said 90180 -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.
12. 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.
13. Safety Hazard Protocol. If the fire chief (or his or her designee) finds good
cause to believe that the wireless facility presents an immediate fire risk, electrical hazard or other threat to public health and safety in violation of any applicable law, the fire chief may order the facility to be shut down and powered off until such time as the immediate threat has been mitigated, after a good faith effort is made to notify the applicant, if feasible. Any mitigations required shall be at the permittee’s sole cost and expense.
Deleted: ,
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Commented [VzW27]: The permittee should not be responsible for the ongoing maintenance of replacement landscape features as the permittee is not introducing any new landscaping, only replacement features.
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Commented [VzW28]: 90 days does not allow enough time for full restoration in many circumstances. Verizon requests that this be revised to 180 days.
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Ordinance 2020-XXX February 20, 2020 Page 21 of 24
14. Contact Information. Prior to final inspection and at all times relevant to this
permit, the permittee shall keep on file with the department basic contact and site information. This information shall include, but is not limited to, the following: (A) the name, physical address, notice address (if different), direct telephone number and email address for (i) the permittee and, if different from the permittee, the (ii) site operator, (ii) equipment owner, (iii) site manager and (iv) agent for service of process; (B) the regulatory authorizations held by the permittee and, to the extent applicable, site operator, equipment owner and site manager as may be necessary for the facility’s continued operation; (C) the facility’s site identification number and/or name used by the permittee and, to the extent applicable, site operator, equipment owner and site manager; and (D) a toll-free telephone number to the facility’s network operations center where a live person with power-down control over the facility is available 24 hours-per-day, seven days- per-week. Within 10 business days after a written request by the city, the permittee shall furnish the city with an updated form that includes all the most-current information described in this condition.
15. Indemnification. The permittee and, if applicable, the property owner upon
which the wireless facility is installed shall defend, indemnify and hold harmless the city, city council and the city’s boards, commissions, agents, officers, officials, and employees and volunteers (collectively, the “indemnitees”) from any and all (A) 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 permit, and (B) 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 permit or the wireless facility. If 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 the city for any costs and expenses directly and necessarily incurred by the city in the course of the defense. The permittee expressly acknowledges and agrees that the permittee’s indemnification obligations under this condition are a material consideration that motivates the city to approve this permit, and that such indemnification obligations will survive the expiration, revocation or other termination of this permit.
16. Insurance. On city owned property, at all times relevant to this permit,
the permittee shall obtain and maintain insurance policies as follows:
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a. Commercial General Liability. Insurance Services Office Form CG 00 01 covering Commercial General Liability (“CGL”) on an “occurrence” basis, with limits not less than $1,000,000 per occurrence or $2,000,000 in the aggregate. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. CGL insurance must include coverage for the following: Bodily Injury and Property Damage; Personal Injury/Advertising Injury; Premises/Operations Liability; Products/Completed Operations Liability; Aggregate Limits that Apply per Project; Explosion, Collapse and Underground (“UCX”) exclusion deleted; Contractual Liability with respect to the permit; Broad Form Property Damage; and Independent Consultants Coverage. The policy shall contain no endorsements or provisions limiting coverage for (i) contractual liability; (ii) cross liability exclusion for claims or suits by one insured against another; (iii)products/completed operations liability; or (iv) contain any other exclusion contrary to the conditions in this permit.
b. Automotive Insurance. Insurance Services Office Form Number CA
00 01 covering, Code 1 (any auto), or if permittee has no owned autos, Code 8 (hired) and 9 (non- owned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
c. Workers’ Compensation. The permittee shall certify that it is aware of
the provisions of California Labor Code § 3700, which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and further certifies that the permittee will comply with such provisions before commencing work under this permit. To the extent the permittee has employees at any time during the term of this permit, at all times during the performance of the work under this permit the permittee shall maintain insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
d. Errors and Omissions Policy. The permittee shall maintain Professional
Liability (Errors and Omissions) Insurance appropriate to the permittee’s profession, with limit no less than $1,000,000 per occurrence or claim. This insurance shall be endorsed to include contractual liability applicable to this permit and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the permittee. “Covered Professional Services” as designed in the policy must specifically include work performed under this permit.
e. Umbrella Policy. If an umbrella or excess liability insurance policy is used
to satisfy the minimum requirements for CGL or Automobile Liability insurance coverage listed above, the umbrella or excess liability policies shall provide coverage at least as broad as specified for the underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf,” with defense costs payable in addition to policy limits. permittee shall provide a “follow form” endorsement or
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Commented [KA29]: Wireless facilities are unmanned. No auto insurance should be required.
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Commented [KA30]: An applicant for a land use permit is providing no services to the city.
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Ordinance 2020-XXX February 20, 2020 Page 23 of 24
schedule of underlying coverage satisfactory to the city indicating that such coverage is subject to the same terms and conditions as the underlying liability policy.
f. Endorsements. The relevant policy(ies) shall name the city, its elected/
appointed officials, commission members, officers, representatives, agents, volunteers and employees as additional insureds. The permittee shall use its best efforts to provide thirty (30) calendar days’ prior written notice to the city of to the cancellation or material modification of any applicable insurance policy; provided, however, that in no event shall the permittee fail to provide written notice to the city within 10 calendar days after the cancellation or material modification of any applicable insurance policy.
g. Certificates. Before the city issues any permit, the permittee shall deliver
to the director insurance certificates, in a form satisfactory to the director, that evidence all the coverage required above. In addition, the permittee shall promptly deliver complete copies of all insurance policies upon a written request by the director.
17. Performance Bond. Before the building official issues any permits required
to commence construction on city owned property in connection with this 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 or other infrastructure removal. The written estimate must include the cost to remove all equipment and other improvements, which includes without limitation all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the wireless facility, plus the cost to completely restore any areas affected by the removal work to a standard compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, the director shall take into consideration any information provided by the permittee regarding the cost to remove the wireless facility to a standard compliant with applicable laws. The performance bond shall expressly survive the duration of the permit term to the extent required to effectuate a complete removal of the subject wireless facility in accordance with this condition.
18. 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 permit application, permit, 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 in connection with the 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
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Commented [KA31]: Self insurance?
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Commented [VzW32]: It is the city's responsibility to keep records as a public agency. This presumption is overreaching and unfair. Wireless facilities change hands over the course of time and the permit records are often not available. The City has an independent obligation to maintain permit records and is not entitled to a conclusive presumption of accuracy in the event of a conflict, especially where this presumption and burden is not imposed on other types of land use applicants. Verizon requests deletion of this requirement.
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Ordinance 2020-XXX February 20, 2020 Page 24 of 24
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.
19. Permit Revocation. Any permit granted under chapter 6.75 or deemed
approved by the operation of law 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). A permit granted under chapter 6.75 or deemed approved by the operation of law may be revoked only by the city council after a duly notice public hearing and opportunity to cure. Before any public hearing to revoke a permit granted under chapter 6.75 or deemed approved by the operation of law, the director must issue a written notice to the permittee that specifies (A) the facility; (B) the violation(s) to be corrected; (C) the timeframe in which the permittee must correct such violation(s); and (D) 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). 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.
20. Cost Reimbursement. The permittee acknowledges and agrees that if (A) the permittee’s
request for authorization to construct, install and/or operate the wireless facility will cause the city to incur actual and reasonable costs and expenses; (B) the permittee shall be responsible to reimburse the city for all reasonable and actual costs incurred in connection with the permit, which includes without limitation actual and reasonable 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; (C) any application fees required for the application may not cover all such reimbursable costs and that the permittee shall have the obligation to reimburse the city for all such costs 10 business days after a written demand for reimbursement and reasonable documentation to support such costs; and (D) the city shall have the right to withhold any permits or other approvals in connection with the wireless facility until and unless any outstanding actual and reasonable costs have been reimbursed to the city by the permittee.
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21. Truthful and Accurate Statements. The permittee acknowledges that the city’s
approval relies on the written and/or oral statements by permittee and/or persons authorized to act on permittee’s behalf. In any matter before the city in connection with the permit or the wireless facility, neither the permittee nor any person authorized to act on permittee’s behalf shall, in any written or oral statement, intentionally provide material factual information that is incorrect or misleading or intentionally omit any material information necessary to prevent any material factual statement from being incorrect or misleading.
22. Successors and Assigns. The conditions, covenants, promises and terms contained in
this permit will bind and inure to the benefit of the city and permittee and their respective successors and assigns.
23. City’s Standing Reserved. The city’s grant or grant by operation of law of a permit does
not waive, and shall not be construed to waive, any standing by the city to challenge any provision in federal or state law or any interpretation thereof.
24. Severability. If any provision in these conditions or such provision’s application to any
person, entity or circumstances is or held by any court with competent jurisdiction to be invalid or unenforceable: (1) such provision or its application to such person, entity or circumstance will be deemed severed from this permit; (2) all other provisions in this permit or their application to any person, entity or circumstance will not be affected; and (3) all other provisions in this permit or their application to any person, entity or circumstance will be valid and enforceable to the fullest extent permitted by law.
25. Modified Conditions. The city council authorizes the director to modify, add or remove
conditions to any permit as the director deems necessary or appropriate to: (1) protect and/or promote the public health, safety and welfare; (2) tailor the standard conditions in subsection (a) to the particular facts and circumstances associated with the deployment; and/or (3) memorialize any changes to the proposed deployment need for compliance with this code, generally applicable health and safety requirements and/or any other applicable laws.
6.75.120 Amortization
Any nonconforming wireless facilities in existence at the time this chapter becomes effective must be brought into conformance with this chapter in accordance with the amortization schedule in this section. As used in this section, the “fair market value” will be the construction costs listed on the building permit or application for the subject wireless facility and the “minimum years” allowed will be measured from the date on which this chapter becomes effective.
Fair Market Value on Effective Date
Minimum Years Allowed
less than $50,000………………………………….5
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Commented [KA33]: This is not required of other land uses.
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$50,000 to $500,000……………………………..10
greater than $500,000…………………………...15
The director may grant a written extension to a date certain when the wireless facility owner shows (1) a good faith effort to cure non-conformance; (2) the application of this section would violate applicable laws; or (3) extreme economic hardship would result from strict compliance with the amortization schedule. Any extension must be the minimum time period necessary to avoid such extreme economic hardship. The director may not grant any permanent exemption from this section.
Nothing in this section is intended to limit any permit term to less than 10 years for any permit granted on or after January 1, 2007. In the event that the amortization required in this section would reduce the permit term to less than 10 years for any permit granted on or after January 1, 2007, then the minimum years allowed will be automatically extended by the difference between 10 years and the number of years since the city granted such permit. Nothing in this section is intended or may be applied to prohibit any collocation or modification covered under 47 U.S.C. § 1455(a) on the basis that the subject wireless facility is a legal nonconforming wireless facility.
6.75.130 Special Exceptions for Federal or State Preemption A. Preface. The provisions in this section establish a procedure by which the city may grant an
exception to the standards in this chapter but only to the extent necessary to avoid conflict with applicable federal or state law. When the applicant requests an exception, the approval authority shall consider the findings in section 6.75.130.B in addition to the findings required under section 6.75.080.A. Each exception is specific to the facts and circumstances in connection with each application. An exception granted in one instance shall not be deemed to create a presumption or expectation that an exception will be granted in any other instance.
B. Findings for an Exception. The approval authority may grant an exception to any provision or requirement in this chapter only if the approval authority finds that:
1. a denial based on the application’s noncompliance with a specific provision or requirement
would violate federal law, state law or both; or
2. a provision in this chapter, as applied to the applicant, would violate any rights or privileges conferred on the applicant by federal or state law.
C. Scope of Exception. If the approval authority finds that an exception should be granted, the
exception shall be narrowly tailored so that the exception deviates from this chapter to least extent necessary for compliance with federal or state law.
D. Burden of Proof. The applicant shall have the burden to prove to the approval authority that
an exception should be granted pursuant to this section. The standard of evidence shall be the same as required by applicable federal or state law for the issue raised in the applicant’s request for an exception.
6.75.140 Violations
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Ordinance 2020-XXX February 20, 2020 Page 27 of 24
Any use or condition caused or permitted to exist in violation of any provision of this chapter shall be and hereby is declared a public nuisance and may be subject to administrative citations as set forth in South Lake Tahoe City Code chapter 2.30 code, summary abatement pursuant to South Lake Tahoe City Code chapter 4.40, California Code of Civil Procedure section 731, or any other remedy available to the city.
SECTION 2. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision will not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional.
SECTION 3. The City Clerk is directed to certify this Ordinance and cause it to be published in the manner required by law.
SECTION 4. This Ordinance shall become effective thirty days after the date of its adoption.
SECTION 5. The City Council finds that this Ordinance is exempt from the California Environmental Quality Act (CEQA) under CEQA Guidelines section 15061(b)(3), Common Sense Exemption, in that it can be seen with certainty that there is no possibility for this action to have a significant effect on the environment, and individual development applications will be reviewed under CEQA as they are proposed. Adoption of this Ordinance would enact changes in land use regulations adding additional regulations and siting requirements on wireless facilities that would reduce their impacts, and it can be seen with certainty that its adoption will not have a significant effect on the environment because it will not allow for the development of any new or expanded wireless communication facilities anywhere other than where they were previously allowed under existing federal, state and local regulations.
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Adopted by the City of South Lake Tahoe City Council on April 14, 2020 by the following vote: Yes: No: Abstain: Absent:
Jason Collin, Mayor
Attest:
Date:
Susan Blankenship, City Clerk First Reading: Published: Effective:
The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the South Lake Tahoe City Council.
115
JOHN DI BENE
Assistant Vice President-
Senior Legal Counsel
Legal Department
AT&T Services, Inc.
2600 Camino Ramon
Room 2W901
San Ramon, CA 94583
925.543.1548 Phone
March 6, 2020
VIA E-MAIL
Kevin Fabino ([email protected])
Development Services Director
1901 Lisa Maloff Way
South Lake Tahoe, CA 96150
Re: AT&T’s Comments on the City of South Lake Tahoe’s Ordinance Adding
Chapter 6.75 Regarding Regulation of Wireless Facilities on Private Property
Dear Mr. Fabino:
I write on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (AT&T) to
provide comments on the City of South Lake Tahoe’s proposed ordinance referenced above
(“Proposed Ordinance”). AT&T commends the City for its efforts to revise its wireless facilities
siting regulations. With more than 75% of California households relying exclusively or primarily
on wireless telecommunications in their homes, and 70% of 911 calls made from mobile phones,
it is especially important to encourage responsible deployments consistent with applicable law.
AT&T echoes many of the concerns that Verizon raised in its February 20, 2020 letter and
redline. Below are AT&T’s additional, specific comments to help foster responsible wireless
deployments, and we appreciate your consideration of these issues.
AT&T’s Comments
Scope. Some provisions in the Proposed Ordinance refer to right-of-way deployments, which the
Proposed Ordinance is not intended to cover. The City should take this opportunity to make
necessary revisions to avoid any confusion by City staff and providers.
Eligible Facilities Requests. The Proposed Ordinance indicates that the City will be developing a
“city council policy” to regulate EFRs under Section 6409(a) of the Middle Class Tax Relief and
Job Creation Act of 2012.1 But with no EFR policy in place now, these applications will be
processed under the Proposed Ordinance, which is not tailored to the limited review and
approval for EFRs. This process will not allow the City to review an EFR within the applicable
60-day shot clock, which may result in applications being deemed granted under federal law.2
Because federal law requires the City to approve qualifying EFRs on this shorter timeframe,
AT&T recommends that the City adopt a separate, administrative process for EFRs.3
1 47 U.S.C. § 1455(a)(1). 2 47 C.F.R. § 1.6100(c)(2), (4). 3 47 C.F.R. § 1.6100(c)(4).
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Height. Wireless facilities are limited to the maximum structure height for the underlying parcel,
and the City also specifies that monopines cannot exceed more than 10 feet above the average
height of nearby mature trees within the vicinity or the maximum structure height. Concealed
macro sites should be able to exceed these limits. For monopines, additional height is needed
beyond 10 feet because they typically include several feet of branching above the antennas for
effective concealment, and the antennas need to be positioned above the surrounding canopy.
Process. The City should revise its appeals process for wireless facility applications, and the City
should carve out EFRs from the appeals process. While sites in preferred locations are processed
administratively under the Proposed Ordinance, such approvals may be subject to two levels of
lengthy appeals. Without changes, the City cannot ensure that it will be able to review an
application within the FCC’s 90-day collocation shot clock,4 or within the 60-day shot clock for
EFRs. The City also should build flexibility into its exception process by allowing exceptions
beyond merely avoiding violations of the law.
RF Compliance. Providers should not need to annually affirm that its facilities are operating in
accordance with the FCC’s radio frequency emissions standards. This is inconsistent with
applicable federal rules. In fact, the radio frequency information required as part of an
application under Section 6.75.060(B) of the Proposed Ordinance will give the City what it
requires for the life of the permit. That assessment is based on the maximum emissions assuming
operations at maximum power. Those parameters will not change during the life of a permit
absent modifications, for which another permit would be required. This requirement is an
unnecessary and costly administrative burden for both providers and City staff.
Conclusion
AT&T appreciates the City’s efforts to develop wireless regulations that balance
community and industry needs, and staff’s willingness to consider industry comments. We look
forward to continue working with City staff towards lawful wireless regulations that encourage
responsible deployments. Please let us know if we can provide any further information.
Very truly yours,
/s/ John di Bene
John di Bene
cc: Heather Stroud, City Attorney ([email protected])
4 47 C.F.R. § 1.6003(c)(1)(ii).
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T-Mobile USA, Inc. 12920 SE 38th Street, Bellevue, WA 98006
March 6, 2020
Via Email Heather Stroud City Attorney [email protected] Courtney Weiche Assistant Planner [email protected] Kevin Fabino Development Services Director [email protected] South Lake Tahoe Planning Commission Re: T-Mobile’s Comments Proposed Ordinance Adding Chapter 6.75 to the South Lake Tahoe City
Code Regarding Regulation of Wireless Facilities on Private Property Dear South Lake Tahoe Planning Commission: I write on behalf of T-Mobile USA, Inc. (“T-Mobile”), regarding the City of South Lake Tahoe’s (the “City”) proposed wireless code update (“Proposed Ordinance”). T-Mobile only recently became aware of this effort, but we have had a chance to review the Proposed Ordinance and have significant concerns that need to be addressed before final adoption to ensure it complies with applicable law. As you know, T-Mobile provides wireless communication services across the City to its residents, business community, and visitors. Like the City, we are constantly striving to provide the services our customers, and your constituents, expect while also responding to the ever-changing demands and expectations placed on wireless infrastructure in the 21st century. As individuals become ever more reliant on wireless services exclusively and their data demands continue to grow, this new infrastructure becomes increasingly important. It is also critically important to the deployment of 5G. As a result, T-Mobile actively encourages jurisdictions to put measures in place that will enable wireless providers to densify their networks using a range of technologies to achieve the coverage, capacity, and performance their networks need. This densification will require the deployment of, and upgrades to, traditional macro sites and the deployment of new infrastructure (e.g., small cells). Unfortunately, the Proposed Ordinance, as drafted, will discourage investment in next generation wireless infrastructure that will be critical to meeting the ever-growing demands of our customers, and
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your constituents, for wireless services in the future. Specifically, we write to support the concerns identified by Verizon Wireless in its February 20, 2020 letter. In addition to the concerns raised by Verizon, T-Mobile also wishes to flag two issues:
• Location preferences: T-Mobile has significant concerns with the Proposed Ordinance’s multi-level location preference scheme, which imposes significant design constraints on network deployments that will materially inhibit our ability to provide service to our customers. First, the current structure imposes an alternatives analysis and justification process for non-preferred locations that essentially repackages the 9th Circuit’s ‘least intrusive means’ standard that was expressly rejected by the FCC’s in its September 2018 Order, see Order ¶34, ¶34 fn 75. Second, the FCC’s Order makes clear that what is “technically feasible” is dictated by the performance characteristics that T-Mobile chooses and seeks to achieve, id. ¶ 37, n.87, and that “local jurisdictions do not have the authority to require that providers offer certain types or levels of service, or to dictate the design of a provider’s network.” Id. ¶ 37, n.84 (emphasis added). The preferred location scheme reflects an attempt to improperly dictate network design.
• Subjective/Prescriptive Design Standards: As explained above, the City cannot dictate a provider’s technical choices. Unfortunately, the prescriptive requirements in the Proposed Ordinance are inconsistent with that limitation. Some of the provisions are so restrictive, they do not retain sufficient flexibility to respond to unique technical needs or differences in technologies. They also contain subjective standards that have the potential to be arbitrarily and discriminatorily applied.
We appreciate the Commission’s consideration of these comments and would welcome the opportunity to work with you and other industry stakeholders to update the Proposed Ordinance to provide a workable process that complies with applicable legal requirements. Since we believe additional work is necessary, T-Mobile joins in Verizon’s request for additional time. T-Mobile would welcome the opportunity to engage with the City to address these concerns. Thank you in advance for your time and consideration. Sincerely,
Dylan M. Fuge Principal Corporate Counsel – Land Use T-Mobile USA, Inc. cc: Rod de la Rosa, Senior Siting Advocacy Manager (T-Mobile West Region)
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Council Agenda Report- March 19, 2020 Page 1 of 1
City of South Lake TahoeReport to City Council
Meeting Date: March 19, 2020
Title: South Lake Tahoe Objective Residential Development and Design Standards
Location: Citywide
Responsible Staff Member: Hilary Roverud, Deputy Director of Development Services(530) 542-6024
Description/Analysis
Background: On September 18, 2019 the City was notified by the California Department of Housing and Community Development that it has been awarded $160,000 in SB 2 grant award. The grant scope of work included updating current City objective design and development standards for housing projects in order to create more developer certainty in the residential project approval process and developing a ministerial permitting process for eligible residential projects meeting specified criteria in order to streamline project review and permitting. On December 3, 2019 the City Council approved a professional services agreement with Mintier Harnish, a consulting firm with experience in this field, to conduct public outreach and draft the objective standards.
Issue and Discussion: A community workshop was held on February 3rd to receive initial feedback on residential development standards and design concepts. Information presented at that workshop and a summary of the workshop feedback is included as an attachment and also available on the City’s website (http://www.cityofslt.us/913/Residential-Development-Standards-Update).
Interviews with developers and design professionals were conducted February 3rd and 4th in order to receive their feedback from experience designing projects within current applicable standards. A summary of the stakeholder interviews is included as an attachment.
The Planning Commission has established a Housing Subcommittee to work with the City Council Housing Subcommittee to guide the efforts. The Subcommittee met on March 3rd to discuss the workshop and stakeholder interview feedback.
Financial Implications: None.
Environmental Considerations: None.
Policy Implications: None.
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