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Ord 2113 - Amending the Zoning Ordinance regarding telecommunications facilitiesORDINANCE 2113 AN ORDINANCE OF THE TOWN OF LOS GATOS AMENDING THE ZONING ORDINANCE REGARDING TELECOMMUNICATIONS FACILITIES THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES ORDAIN AS FOLLOWS: SECTION I Division 3 of Article II, Chapter 29 of the Los Gatos Town Code amended to add the following: Section 29.20.205 Purpose and Intent (a) These provisions are intended to establish criteria for the siting, design, modifications and maintenance of wireless telecommunications facilities within the Town of Los Gatos as specifically set forth in this division and in standards that may be enacted by resolution pursuant to this division. Wireless telecommunications facilities include, but are not limited to, telecommunications antennas and related facilities, and structures or equipment used for the purposes of wireless personal or business communications and transmission of data. (b) These provisions are further intended to implement the land use regulation of telecommunications facilities as permitted pursuant to the 1996 Federal Telecommunications Act. As such these provisions are not intended to unduly restrict or unreasonably interfere with the development of the competitive wireless telecommunications marketplace within the Town of Los Gatos. (c) The standards and guidelines established for wireless communications facilities in this division shall promote the following goals: (1) Ensure the health, safety and general welfare of the community while enabling a competitive, varied and high quality wireless communications service infrastructure to serve the Town's residents and business community. (2) Ensure a telecommunications network that will serve an effective role in the Town's emergency response system and generally provide full service coverage for personal wireless telecommunications services. (3) Protect the visual character of the Town through careful design, siting, landscaping, and innovative camouflaging techniques for wireless telecommunications facilities. Page 1 of 9 (4) Limit the proliferation of new towers by permitting the construction of new towers only after all other reasonable opportunities have been exhausted and encourage the configuration of towers and antennas in a manner that minimizes adverse visual impacts. (5) Allow potential wireless service providers to utilize a streamlined permitting process after demonstrating compliance with the standards enacted pursuant to this division, as well as, with other zoning, building and safety regulations. (6) Enhance the ability of wireless service providers to provide service quickly, effectively and efficiently. (7) Provide for the uniform application of standards and guidelines for the siting, design, modification and maintenance of telecommunications facilities as allowed under the 1996 Telecommunications Act, as may be amended. (8) Require, to the greatest extent possible, cooperation between telecommunications providers in order to achieve co- location of facilities and to avoid construction of additional single -use towers. Section 29.20.206 Definitions For the purposes of this division, unless otherwise defined herein, the terms, phrases, words, and their derivations used herein shall have the same meaning as may be set forth in any standards enacted by resolution pursuant to this division. Section 29.20.207 Applicability These provisions shall apply to all varieties of external wireless telecommunications facilities, including aerials, towers and related supporting structures and equipment, located within any zoning designation, including Plan Development zones. The varieties of telecommunications facilities covered by these provisions shall include any fixed equipment, facilities and structures used to transfer information without wires, including but not limited to, cellular communication, amateur radio, personal communications services (PCS), enhanced specialized mobile radio (ESMR), any data, voice, video images, facilities built for transmittal of wireless digital television, satellite communications and other wireless facilities. Section 29.20.208 Pre - Existing and Non - Conforming Structures and Facilities Except as provided in this division, on the effective date of the ordinance adopting these provisions, the continued use of pre- existing aerial, tower or antenna support structure or supporting any other facilities, such as cabinets and support equipment, (herein "non- conforming structures and facilities ") may continue as legal non - confirming structures and facilities, even if they exist and operate in conflict with the terms of this division. Any attempt Page 2 of 9 to reconstruct or otherwise modify non - conforming structures or supporting facilities shall require full conformity with this division and related standards. Section 29.20.209 General Requirements All telecommunications antenna facilities and related equipment in the Town of Los Gatos shall conform to the following general requirements and those that may be set forth in any standards enacted by resolution pursuant to this division: (1) Compliance with the General Plan and any other adopted land use plan, policies and guidelines adopted by the Town of Los Gatos including, but not limited to, the requirements of the zoning regulations, Hillside Development Standards and Guidelines, and adopted specific plans. (2) Compliance with the California Environmental Quality Act. (3) Compliance with the requirements of any other governmental agency with jurisdiction over the installation of telecommunications facilities. (4) Compliance with any applicable easements, restrictions or land use approvals restricting development on any given parcel. (5) Compliance with the radio frequency emission standards adopted by the Federal Communications Commission, which shall include any combined radiation levels produced by antennas located on the same parcel in addition to all antennas within a 100 foot distance of the proposed facility. (6) Compliance with the California Uniform Building Code and subject to the Town of Los Gatos building permit process. (7) The telecommunications facility shall be an accessory use, secondary to the primary use on the parcel. Exceptions to this requirement shall be made for any parcel that is designated as open space, is within a public utility, road or infrastructure easement, or is vacant but subject to future development to include a primary use. (8) Any and all standards enacted by resolution pursuant to this division. Section 29.20.210 Specific Siting and Design Requirements As set forth herein and in any standards enacted by resolution pursuant to this division. Section 29.20.211 Exemptions (a) The following telecommunications facilities are exempt from the discretionary review Page 3 of 9 and requirement to obtain a permit as described in this division if located outside the public right -of -way, and are subject to review by the Town's Community Development Director: (1) Facilities, the regulation of which, is entirely preempted by state or federal law. The owner of the proposed facility shall provide the Town with a copy of all applicable preempting regulations prior to installation of the exempt equipment and, if applicable, a current permit issued by the Federal Communications Commission or the California Public Utility Commission. (2) A single building- mounted receive only radio or television antenna not exceeding fifteen (15) feet in height used solely by the tenant of a residential or commercial property on which the building and antenna is located. (3) A single ground or building - mounted Direct Broadcast Satellite (DBS) antenna, Multi -Point Distribution Services (MDS) antennas, or Television Broadcast Service (TVBS) antennas which are less than one (1) meter or thirty -nine (39) inches in diameter when it is used for the sole use of an occupant of a residential or commercial property on which the antenna is located. The equipment may not exceed the height of the roof ridge of the main structure it is located or be located within a required setback. (4) Mobile temporary telecommunications facilities to provide public information or news events for no longer than seventy -two (72) hours. (5) Temporary telecommunications facilities when deployed during an emergency or natural disaster. (6) Facilities located entirely within a building and serving only that building. (7) Telecommunications facilities for Police, Fire and other essential public health and safety services. (8) Amateur radio antenna and supporting structures when the antenna and /or supporting structure does not exceed the height allowed by the underlying zone. The operator must be licensed by the Federal Communications Commission as an amateur radio operator. Section 29.20.212 Permit Authority (a) Any wireless telecommunications facility and /or any applicable facility as described in this division shall not be installed, erected, modified or changed except upon approval of an administrative land use permit or a conditional use permit. Applicable permit fees are subject to the adopted fee schedule for such permits. Page 4 of 9 (b) Subject to provisions of this division, the Community Development Director is authorized to approve an administrative land use permit for wireless telecommunications facilities. (c) The Town of Los Gatos Planning Commission is authorized to approve, approve with conditions, or deny applications for telecommunications facilities requiring a conditional use permit. Those applications not required to obtain a conditional use permit shall be subject to administrative approval pursuant to the authority of this division. (d) Any permit review process for proposed telecommunications facilities may be incorporated as part of a related development project, provided that the review process and applicable standards shall conform with provisions set forth in this division or in any standards enacted by resolution pursuant to this division. Section 29.20. 213 Permit Process All wireless telecommunications facilities not specifically exempted from the provisions of this division as set forth in section 29.20.211 are subject to one of the permitting requirements set forth below as well as the adopted Town of Los Gatos fee schedule: (1) Administrative Land Use Permit. Telecommunication facilities meeting criteria for administrative land review as may be specified in any standards enacted by resolution pursuant to this division, Microcell and equivalent type of antenna, are subject to an administrative land use permit review and approval and subject to adopted fee schedules. Proposed facilities meeting the criteria for an administrative permit shall be approved by the Community Development Director without action by the Town of Los Gatos Development Review Committee or a public hearing before the Planning Commission. Any decision to issue an administrative land use permit may be appealed to the Town of Los Gatos Planning Commission within ten (10) days from the date of the decision. (2) Conditional Use Permit. Except as otherwise provided in this division, division 4, including section 29.20.285(6)(b), and division 5, including section 29.20.405 et seq., any wireless telecommunications facility and /or any applicable facility as described under the conditional use permit requirements provisions of division and related standards is required to obtain a conditional use permit. Any modification or change to an approved facility will require an application to modify the conditional use permit. If it is found that the change or modifications meets the criteria identified under the administrative land use permit then the previously approved conditional use permit may be revoked and an administrative land use permit may be issued. (3) Development Review Committee. Prior to the public notice of the Planning Commission hearing for a conditional use permit application for telecommunications facilities the Development Review Committee must deem the application complete Page 5 of 9 pursuant to the applicable standards set forth in this division and related standards. Any facility that does not meet federal standards for radio frequency ( "RF ") emissions, including a proposed facility where the aggregated RF emissions inclusive of other surrounding facilities exceed federal RF emission standards, will not be deemed complete and applications will be rejected. (4) Planning Commission. Applications for telecommunications facilities that do not meet the provisions of section 29.20.213(a) above, or those that at the discretion of the Community Development Director are determined to require approval by the Planning Commission. Planning Commission level actions include, but are not limited to, those found in this division and related standards enacted pursuant to this division. (5) Town Council. The Town Council shall hear items that are appealed from decisions of the Planning Commission as set forth in the Town Code. Section 29.20.214 RF Emissions Monitoring (a) Telecommunications facilities, whether operating alone or in conjunction with other facilities, shall not generate radio frequency emissions ( "RF ") in excess of the guidelines established by the Federal Communications Commission and Food and Drug Administration. (b) A bi- annual, RF exposure report is required and shall be incorporated as a condition of project approval. The report shall be prepared by a Food and Drug Administration certified professional and submitted to the Community Development Director to ensure that no modifications to the site, surrounding environment, or equipment wear and tear have caused an increase in RF exposure over the period after initiation of use of a telecommunications facility. In the event an increase over accepted levels is detected, the equipment shall be immediately taken out of service and the applicant shall be responsible for immediately making all necessary adjustments to comply with Federal Communications Commission guidelines; otherwise revocation hearings will commence. (c) The RF emissions analysis shall include emissions from the proposed telecommunications facility and its supporting equipment in combination with any existing facilities on site of the proposed facility. The total combined shall not exceed current Federal Communications Commission adopted standards for human exposure to RF fields. (d) An updated RF emission report shall be required every five (5) years as part of the required renewal of an administrative permit. Section 29.20.215 Independent Review (a) The Community Development Director is authorized at his /her discretion to employ Page 6 of 9 on behalf of the Town an independent technical consultant to review any telecommunications facility proposal subject to this division. Additional information, studies, analysis and data may be required as the Director and /or consultant deem necessary to evaluate the proposed site and /or facilities. (b) The cost of this review will be borne by the applicant through a deposit pursuant to the adopted fee schedule. Section 29.20.216 Findings Required findings for approval of a telecommunications facility permit shall include those found in section 29.20.190 of this division, along with a finding that the application substantially complies with the provisions of this division and related standards enacted by resolution pursuant to this division. Section 29.20.217 Length of Permit Term Any administrative land use permit or conditional use permit for a telecommunications facility issued pursuant to this division shall be in effect for an initial period of five (5) years, after which time the Town may require an administrative review to verify compliance with the original project approval and the provisions of this division and related standards enacted by resolution pursuant to this division. If an administrative review is required, an updated radio frequency emissions report shall be prepared by a Food and Drug Administration certified professional pursuant to the requirements of section 29.20.214, et seq. of this division and submitted to the Town for verification of compliance with current state and federal standards. The Town may also require that facilities and antenna meet the most current technological industry standards. A review shall be required every five (5) years thereafter. Section 29.20.218 Lapse of Approval The approval of any conditional use permit for a telecommunications antenna and /or facilities shall become null and void if any of the following occurs: (1) The project is not implemented /constructed within one (1) year of its approval. (2) The project is implemented or fully constructed, but its permit issued pursuant to this division has expired without extension. If the facility is co- located with other carriers approved at different dates, a separate expiration date will be applicable to each applicant according to their original approval dates. Section 29.20.219 Permit Revocation In the event of any violation of the provisions of this division, the conditions of approval, or other requirements of the permit, the Town shall notify the applicant, unless otherwise advised by the applicant, and schedule a revocation hearing in accordance with sections 29.20.3 10 and Page 7 of 9 29.20.315 of the Town Code. Section 29.20.220 Discontinuance of Use and /or Removal of Facilities The following shall apply to all wireless telecommunication facilities that have ceased to operate for a continuous period of at least six (6) months and /or for which any applicable local permits have been revoked: (1) All equipment associated with an antenna or personal wireless service facility shall be removed within ninety (90) days of being noticed of the discontinuation of the use or final revocation of the permit and /or of the date of notice from the Community Development Director of the discontinuation of use and /or final revocation of the permit. (2) The site shall be restored to its original pre- construction condition. Abandoned telecommunications equipment constitute a nuisance subject to abatement pursuant to the provisions of the Town Code, including section 1.10.100. In addition, if the abandoned facility is not removed within ninety (90) days pursuant to subsection (1) of this section, the Town may execute the security bond to pay for removal of the facility. If there are two or more uses of a single facility, this provision shall not become effective until all uses of the facility are discontinued. Section 29.20.221 Removal of Facilities and Change of Ownership The applicant or other designated representative shall be responsible for notifying the Community Development Director in writing upon temporary or permanent cessation of operation or change of ownership of any telecommunications facility. The applicant and /or property owner shall be responsible for the removal of all obsolete or unused facilities or portions thereof within the time limit found in section 20.20.220 above. Section 29.20.222 Bonding Security and Insurance (a) As a condition of approval of any wireless telecommunication facility either through an administrative land use approval or conditional use permit, the Town shall set the form and amount of security that represents the cost for removal and disposal of abandoned wireless telecommunications facilities in the event that these facilities are abandoned and the facility owner is incapable and /or unwilling to remove them. (b) As a condition of approval of any wireless telecommunication facility permit, the Town shall require submission of proof of adequate insurance covering accident or damage caused by any elements of the approved wireless telecommunication facility. SECTION II If any of the provisions of this Ordinance or the application thereof to any person or property Page 8 of 9 is held invalid, such invalidity shall not affect the other provisions of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this , Ordinance are declared to be severable. SECTION III Any judicial review of this Ordinance shall be by writ of mandate, under section 1085 of the Code of Civil Procedure. Any action or proceedings seeking to attack, review, set aside, void or annul this ordinance shall be commenced within 90 days after adoption of this Ordinance. This Ordinance was introduced at a regular meeting of the Town Council of the Town of Los Gatos on June 2, 2003, and adopted by the following vote as an ordinance of the Town of Los Gatos at a meeting of the Town Council of the Town of Los Gatos on June 16, 2003, and takes effect 30 days after it is adopted. COUNCIL MEMBERS: AYES: Steve Glickman, Diane McNutt, Joe Pirzynski, Mike Wasserman, Mayor Sandy Decker. NAYS: None ABSENT: None ABSTAIN: None SIGNED: AYOR F THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: CLERK OF THE TOWN OF LOS TOS LOS GATOS, CALIFORNIA Page 9 of 9