TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL

FROM: DIRECTOR OF PUBLIC WORKS

DATE: OCTOBER 21, 2003

SUBJECT: AN ORDINANCE ESTABLISHING THE PROCESS TO APPROVE ABOVE GROUND FACILITIES IN THE PUBLIC RIGHT OF WAY

RECOMMENDATION

Introduce Ordinance no. ___ an ordinance of the City of Rancho Palos Verdes establishing regulations for the aboveground installation of facilities in the public rights-of-way and amending the Rancho Palos Verdes Municipal Code

BACKGROUND

In the summer of 2001, staff was notified by both Sprint Communications, and ATT Wireless that they intended to upgrade wireless communication throughout the City by installing a number of new cellular sites in the public right of way. At the October 16, 2001 City Council meeting, staff made a presentation regarding the City’s ability and limitations on regulating the use of the right of way by wireless providers in light of the Telecommunications Act of 1996. At that meeting the proposed procedures for reviewing applications were also discussed by the City Council. The Council received another update about this issue on November 19, 2002, at which time the Council gave direction to staff about further refinements to the process.

Staff provided an update to the City Council at the September 2, 2003 City Council meeting. At that meeting, the Council concurred with the process that Staff has been using to process applications for aboveground facilities in the public rights-of-way and directed staff to include an appeal process in the ordinance that was being prepared. The Council further directed staff to prepare a report that discusses the amount of a fee that should be charged for appeals to the City Council from the Director’s decisions, which is a separate item on the agenda tonight.

Since October 2001, the Public Works Department has received approximately 45 applications for new cellular sites within the public right of way. A total of 31 applications have been approved and either have been constructed or are in the process of being constructed. For the most part the process has been very successful, and the construction generated only minor feedback from the public. One reason for this is that the review process utilized the experience gained when several similar cellular sites were installed in the rights of way a number of years ago. Another reason is that the direction provided by the City Council in November 2002, further improved the process. The review process attempts to strike a balance between the fact that the principal issue for most homeowners is view impact versus the fact that the City has limited authority with respect to restricting the use of the street rights of way by wireless providers due to the Federal Telecommunications Act of 1996 and the requirement that users of the public rights of way be treated similarly.

Accordingly, staff has prepared the attached ordinance to document the existing process that is being applied to entities that wish to place aboveground facilities within the public right of way. Since some facilities are completely underground, they do not have a visual impact on the City’s residents and are not addressed in this ordinance. However, it should be noted that public utilities, such as Southern California Edison Company and California Water Service, have aboveground facilities in the public rights of way, to which these policies will apply.

Because of the unique issues that arise in the cellular telephone context, due to the need for the antennae, this report necessarily focuses on companies that provide cellular telephone service. As the Council will recall, cellular sites generally consist of the following elements:

 

	Description	Configuration on Sprint PCS facility	Configuration on an ATT facility
Antenna	Various types and configurations	Mounted on existing pole	Mounted on existing pole
RFI Cabinet	Contains the telecommunication facilities	Cabinet attached to pole	Cabinet attached to pole
Electric Meter	Required by SCE for certain installations	Cabinet mounted on the ground	None
Back up power	Installed at the discretion of the provider	Cabinet mounted on the ground	None

DISCUSSION

Some of the more important principals considered when the review process was established:

• The element of a cellular site that sets it apart from other utility installations is the need for a pole and antenna.

• The most controversial aspect of a new cellular site usually is the antenna.

• It is difficult to access whose view is impacted by a new antenna.

• Residents generally have a low tolerance for new poles.

• Residents generally have a higher tolerance for new cabinets. This is likely because many utility companies, as well as the City, install cabinets within the public rights of way.

• Although the public has a higher tolerance for cabinets, no one wants a cabinet directly in front of his or her home.

• A dark cabinet color and the presence of foliage generally help to minimize impact of the cabinet on the surrounding area.

Based these principals, the following guidelines and procedures were incorporated into the ordinance:

• Facilities shall be located along arterial roadways whenever possible.

• New cabinets shall not be installed aboveground directly in front of a residential structure.

• If a proposed installation is along a roadway with homes on only one side, the aboveground cabinet shall be installed along the side of the roadway with no homes.

• Antennas shall be located such that views from a residential structure are not significantly impaired.

• Antennas shall be located in a manner that protects pubic views over City view corridors, as defined in the City’s General Plan, so that there is no significant view impairment.

• A new pole may be constructed if the new pole will not adversely impact views from private properties or will not adversely impact public view corridors, as defined in the General Plan, and if the pole can be located in an area where there is existing foliage or some other feature that obscures the view of the pole.

Procedures for aboveground installations:

Anyone wishing to install an aboveground facility in the public right-of-way must obtain a permit from the Director of Public Works. There are two exceptions to this requirement, which are:

Owners of residential properties who want to place a structure in the right-of-way that is connected to the residential use of the property, provided that Director of Public Works determines that the facility (i) is directly connected with a residential use on the parcel that is immediately adjacent to the proposed facility; (ii) will occupy less than one square foot of the public right-of-way and is less than three and one-half (3 ½) feet tall, and (iii) does not inconvenience or jeopardize the public’s continued use of the public right-of-way, including, without limitation, use of the sidewalks in compliance with the Americans With Disabilities Act or interference with vehicular sight distance. A good example of this situation is a mailbox.

Facilities (such as roll-off trash bins for construction projects) temporarily placed in the public rights-of-way for a period not to exceed one (1) year, when the Director has otherwise approved the temporary facility. These facilities still will be required to obtain a permit under Chapter 12.04 of the Municipal Code.

The application process is set forth in Section 12.06.040:

1. The applicant submits an application that includes ‘before and after’ photographic simulations and a computer rendering of a proposed installation.
2. Staff performs a field review of all applications to assure compliance with City standards
3. If the proposed site receives preliminary approval from the Public Works Department, and if it includes a proposed antenna, the applicant installs a ‘mock up’ of the antenna for a period of 30 days to raise any issues from property owners who have a view impact from the antenna. At that time, the applicant submits funds to the City to be held in trust to reimburse the City for the cost of the mock-up process.
4. Property owners immediately adjacent to and across from a proposed cabinet are notified of the application.
5. If negative comments are received from the public regarding view impacts caused by the proposed antenna, staff advises the applicant of the concerns and attempts to resolve the issues, and the process returns to step one.
6. If no negative comments are received about view impacts, a permit for construction is issued.

The Council will recall that individual written notice to the residents has not been used because with respect to cabinets, the City is limited in its ability to regulate their construction by wireless providers, given that other utility companies are generally permitted to install them and frequently have specific requirements about where the cabinets must be located.

However, in order to provide a meaningful opportunity to appeal, the ordinance requires staff to notify the properties that are immediately adjacent to and across from the proposed aboveground facility about the Director’s decision and the right to appeal the decision to the City Council.

With respect to the antenna, since it is difficult to assess to whom the notification should be sent, the ordinance is retaining the 30-day mock-up period as the tool that is used to notify property owners about the antenna. Pursuant to prior direction from the City Council, the ordinance requires that a mock-up facility include a sign that displays the image of the proposed installation, including the cabinet, and the telephone number of the Public Works Department so that a resident knows whom to call if they have questions, concerns or comments.

The findings that are required by the Director, the conditions that can be imposed, and the general installation requirements are sent forth in Section 12.06.060.

The appeal provisions are set forth in Section 12.06.070. The process that is included in this ordinance is similar to the appeal process that is set forth in the Development Code concerning appeals of decisions by the Director of Planning, Building and Code Enforcement and the Planning Commission. Staff would provide notice of the Director’s decision to the applicant, the owners of the properties adjacent to and across from the proposed facilities and to any person who expressed interest during the process. The ordinance also allows the City Council to appeal a decision of the Director.

The proposed ordinance will address concerns raised by the public as follows:

Elements of installation		Photo simulation required?	30 day Mock up required?	Written Notification required?	Appeal process
Above ground equipment	Antenna
Yes	No	Yes	No	Yes – property owners immediately adjacent to and across from	With 15 days of director decision
Yes	Yes	Yes	Yes for antenna with notice at proposed location	No - the mock-up is the notice.	With 15 days of director decision

Other provisions of the ordinance address the term of the permits (which is generally ten years unless the permit provides otherwise), the process to amend or renew a permit, changes in use and ownership of the facilities, and abandonment, relocation and removal of these facilities. The ordinance also provides a process that would allow the City to revoke the permit in certain circumstances, which are:

1. The permit was issued erroneously;
2. The permit was issued on the basis of incorrect or fraudulent information supplied by the applicant;
3. The permit was issued contrary to the provisions of the Municipal Code; or
4. The permit is being or recently has been, exercised contrary to the terms or conditions of the permit.

Finally, the ordinance also includes provisions that will require reimbursement to the City of any damage that is caused by the applicant, as well as indemnification and insurance requirements.

CONCLUSION

Staff believes that the existing process that is incorporated into the ordinance, as modified by the City Council, has been very successful. It balances the City’s goals of preventing the impairment of views and the adverse impacts on residential neighborhoods of new aboveground facilities in the public rights of way with the goals of the utilities and telecommunications providers of providing service to their customers. Accordingly, Staff recommends that the City Council introduce the attached ordinance.

FISCAL IMPACT

Staff could not identify any fiscal impacts to the recommended actions.

ALTERNATIVES

Provide staff with additional direction and continue this matter to the next City Council meeting.

Respectfully submitted,

Dean Allison

Director of Public Works

Reviewed,

Les Evans

City Manager

 

ORDINANCE NO. ____

AN ORDINANCE OF THE CITY OF RANCHO PALOS VERDES ESTABLISHING REGULATIONS FOR THE ABOVE-GROUND INSTALLATION OF FACILITIES IN THE PUBLIC RIGHTS-OF-WAY AND AMENDING TITLE 12 OF THE RANCHO PALOS VERDES MUNICIPAL CODE

THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY ORDAIN AS FOLLOWS:

. The City Council hereby finds as follows:

From time to time the City receives applications from various persons and entities to install permanent facilities aboveground within the public rights-of-way.

The public rights-of-way are unique public resources held in trust by the City for the benefit of the public. These physically limited resources require proper management by the City to maximize the efficiency and minimize the costs to the taxpayers, to protect against foreclosure of future economic expansion because of premature exhaustion of the public rights-of-way, and to minimize the inconvenience to and negative effects on the public from nontraditional uses of the public rights-of-way.

The indiscriminate installation in the rights-of-way of numerous aboveground facilities may create safety hazards, impair views from private properties and from public view corridors, and negatively impact the aesthetics of both the residential and non-residential streetscape within the City. Moreover, unless the City imposes reasonable time, place and manner restrictions, the installation of such facilities may incommode the public’s use of the streets and sidewalks within the City in violation of applicable state law.

In order to mitigate the potential adverse impacts, which may occur, whether on an individual or cumulative basis, from permitted aboveground facilities, the City Council finds it is necessary to adopt comprehensive policies and regulations to control the installation of facilities above-ground in the public rights-of-way.

. Title 12 of the Rancho Palos Verdes Municipal Code is hereby amended by adding new Chapter 12.06 thereto to read as follows:

"CHAPTER 12.06

USE OF PUBLIC RIGHTS-OF-WAY

Sections:

12.06.010 Definitions.

12.06.020 Permit required.

12.06.030 Exemptions.

12.06.040 Application.

12.06.050 Mock-up required.

12.06.060 Action by director.

12.06.070 Appeal.

12.06.080 Term of permit.

12.06.090 Amendment; application and determination.

12.06.100 Renewal; application and determination.

12.06.110 Use of facilities; change in use.

12.06.120 Transfer of permit or facilities.

12.06.130 Nonexclusive use; limitations.

12.06.140 Facilities - Relocation; removal.

12.06.150 Facilities - Abandonment; removal.

12.06.160 Damage to facilities and public property.

12.06.170 Indemnification.

12.06.180 Insurance.

12.06.190 Suspension or revocation of permit.

12.06.200 Rights reserved to the city.

12.06.010 Definitions.

For purposes of carrying out the intent of this chapter, the following words, phrases, and terms shall have the meanings set forth herein unless a different meaning is clearly intended by the use and context of the word, phrase or term.

(a) ‘Aboveground’ means projecting more than one-half inch above the adjacent finished grade where the facility is to be located.

(b) ‘Director’ means the Director of Public Works of the City of Rancho Palos Verdes unless otherwise specified.

(c) ‘Facility’ means any fiber optic, coaxial, or copper cable, telephone, telecommunications, electric or other wire or line, antenna or antenna soil, gas, or other pipeline, duct, conduit, cabinet, tunnel, vault, equipment, drain, manhole, splice box, surface location, marker, pole structure, utility, or other appurtenance, structure, property, or tangible thing owned, leased, operated, or licensed by a person and located or proposed to be located in, upon, above, or across any public right-of-way.

(d) ‘Permittee’ means a person to whom the City has granted a right-of-way use permit under this chapter or any lawful successor, transferee, or assignee of such person.

(e) ‘Right-of-way use permit’ means the authorization granted by the City to a person under this chapter giving the person a non-exclusive right to occupy certain space in, upon, above, beneath, or across any public right-of-way for the purpose of providing a specified service.

(f) ‘Person’ means any person, business, firm, corporation, or other legal entity who places, constructs, owns, controls, operates, manages, or uses any facility in, upon, above, beneath, or across any public right-of-way.

(g) ‘Public right-of-way’ means the area in, upon, above or across any public street, road, lane, court, alley, boulevard, sidewalk, pathway, median, parkway, park, open space, landscape lot, drainage facility, casement or other public place or property within the City, as it now or hereafter exists.

12.06.020 Permit required.

No person shall place, construct, own, control, operate, manage, or use any aboveground facility on any public right-of-way without first obtaining a right-of-way use permit from the City for such purpose. The issuance of a right-of-way use permit pursuant to this chapter shall not diminish, abrogate, or otherwise affect a permittee’s obligation to comply with any other applicable provision of this code or other city ordinances or regulations, or state or federal law, including, but not limited to, the following:

5. Any permit or authorization required for the privilege of transacting business within the city as required by Title 5 of this code or any other ordinances of the City.
6. Any other permit, agreement, or authorization pursuant to Chapter 12.04 of this title required in connection with activities in, upon, above, beneath, or across the public rights-of-way, including by way of example but not limitation, street work, street excavation, use, removal and relocation of property within a street, or other street work.
7. Any permits or agreements for occupying any other property of the city to which access is not specifically granted by the right-of-way use permit including, without limitation, permits and licenses for placing devices on or in poles, conduits, or other structures or facilities owned by the city or other governmental entity.

12.06.030 Exemptions.

A. Any persons proposing to place, construct, own, control, operate, manage, or use a facility in the public rights-of-way shall not be subject to section 12.06.020 if the director of public works determines in writing that the facility (i) is directly connected with a residential use on the parcel that is immediately adjacent to the proposed facility; (ii) will occupy less than one square foot of the public right-of-way and is less than three and one-half (3 ½) feet tall, and (iii) does not inconvenience or jeopardize the public’s continued use of the public right-of-way, including, without limitation, use of the sidewalks in compliance with the Americans With Disabilities Act or interference with vehicular sight distance.

B. Facilities temporarily placed in the public rights-of-way for a period not to exceed one (1) year, when the Director has otherwise approved such facilities.

12.06.040 Application

Application for a right-of-way use permit shall be in writing, shall be filed with the Director on a form provided by the City, and shall contain the following information:

1. The name and address of the applicant.
2. A statement and description of the facilities proposed to be placed, constructed, owned, controlled, operated, managed, or used by the applicant; the proposed location of such facilities; the manner in which the applicant proposes to place, construct, own, control, operate, manage, or use the same; and the extent and manner in which existing or future poles or other facilities of other persons will be used. The statement shall include the applicant’s proposed schedule for servicing or maintaining the facility.
3. Whether the proposed facility will generate any noise or vibration.
4. A description and location map of the public rights-of-way or other public places within which the applicant proposes or seeks authority to place, construct, own, control, operate, manage, or use any facilities and any adjacent public or private facilities, equipment, or property; and a detailed description of the proposed traffic control plan, if required by the director. If the applicant proposes to install new aboveground facilities that will be affixed to the ground, such as a new pole or cabinet, the applicant shall provide the addresses of the properties immediately adjacent to and across from that new facility.
5. Before and after computer simulations and a computer rendering of the proposed facilities.
6. Two copies of the engineering plans for the proposed facilities.
7. Payment to the City of any application fee established by resolution of the City Council.
8. The City may, at any time demand, and applicant shall provide, such supplementary, additional or other information as the Director, or the City Council on appeal, may deem reasonably necessary to determine whether the requested right-of-way use permit should be granted.

Following the receipt of an application, the director’s designee shall conduct a review of the proposed location to assess compliance of the proposed facility with the provisions of this chapter. If the applicant proposes to install new aboveground facilities that will be affixed to the ground, such as a new pole or cabinet, the director’s designee shall provide written notice about that component of the project to the owners of the properties immediately adjacent to and across from that new facility.

12.06.050 Mock-up required.

For any application that proposes the installation of aboveground facilities that are ten (10) feet or more in height, as measured from the base of the facility at existing, adjacent grade, the applicant shall first install a mock-up of the facilities following issuance of written notice from the Director approving the installation of the mock-up. The applicant shall provide funds, which are to be held in trust by the City, in an amount that the Director estimates will be sufficient to cover the City’s costs to process the review of the mock-up. Any unused funds shall be returned to the applicant when the process has been completed. The mock-up shall include a sign that displays the image of the proposed facilities, including any related cabinet, and the telephone number of the City’s public works department. The mock-up shall remain in place for a minimum period of thirty (30) days so that any significant view impacts from the proposed installation can be raised by the public and analyzed by the Director or his or her designee. If significant view impacts are raised, the Director shall notify the applicant about those issues so that the placement of the antenna can be modified to address those concerns.

12.06.060 Action by Director.

A. Timing of action. Not sooner than sixty (60) days, and not longer than one hundred twenty (120) days after the application for a right-of-way use permit is deemed complete, the Director shall grant, deny, or conditionally grant the right-of-way use permit. If the right-of-way use permit is granted, the application submitted shall constitute and form part of the right-of-way use permit. If the application is denied, the resolution shall include the reason(s) for denial.

B. Findings. The Director shall not grant an application for a right-of-way use permit unless he or she makes the following findings:

1. The proposed use is compatible with the public’s use of the right-of-way
2. The public rights-of-way identified in the application have sufficient capacity to accommodate the applicant’s proposed facilities and any foreseeable additional facilities of the applicant or other permittees that may need to be accommodated.
3. Granting the requested right-of-way use permit will not interfere with the City’s future plans for the affected public rights-of-way as reflected in the City’s general plan or the City’s capital improvement plan.
4. Granting the requested right-of-way use permit will not damage or disrupt any public or private facilities, improvements, service, travel, or landscaping.
5. Granting the requested right-of-way use permit will not have a significant adverse impact upon a view from a private residence or upon any protected public view corridors, as defined in the City’s general plan;
6. Granting the requested right-of-way use permit will not have a significant adverse impact on the value of neighboring properties;
7. The applicant has received all required licenses, permits, or franchises from the Federal Communications Commission, the California Public Utilities Commission, or any other federal or state regulatory commission or agency having jurisdiction concerning any matters affecting the applicant’s proposed activities or facilities, and the applicant has presented satisfactory proof of such licenses, permits or franchises to the Director.

C. Conditions. In granting a right-of-way use permit, the Director shall impose such conditions on the permit, which are reasonably necessary to protect and manage the public rights-of-way and to safeguard the health and safety of the City and the public. The conditions imposed may relate to one or more of the following:

1. The availability of existing and/or approved future facilities of other utilities or right-of-way users, such as underground conduits or utility poles, to meet the applicant’s needs.
2. The design and installation of landscaping and other barriers to minimize public view of aboveground facilities whose location has been approved by the City.
3. The maintenance of all aboveground facilities in good condition, including compliance with the City's ordinances regarding graffiti removal.
4. The placement of aboveground facilities, such as overhead drops, as close as possible to other utility drops, consistent with all applicable electrical codes.
5. Reasonable limitations upon the number of aboveground facilities that may be installed within a designated geographical area.
6. Reasonable limitations upon the dimensions or volume, or both, of aboveground facilities.
7. The specification of colors of aboveground facilities reasonably requested by the City to ensure that these facilities blend with the surrounding environment to the maximum extent possible.
8. Any specific limitations or restrictions on the timetable for the proposed construction with which the applicant must comply during construction.
9. Such additional conditions regulating the time, place, and manner of installations of above-ground facilities as will reasonably mitigate potential safety hazards and adverse visual impacts attributable to the proposed facilities in a manner that is consistent with this chapter and applicable state and federal law.

D. Installation of facilities.

1. To the extent feasible, all above-ground facilities proposed in the public rights-of-way shall be installed on/in existing and/or previously approved facilities of other utilities or right-of-way users, such as utility poles, street lights or other structures. The requirement that facilities co-locate may be waived by the Director only when the applicant submits written evidence which: (i) describes in reasonable detail the efforts made by the applicant to obtain from other utilities or right-of-way users the right to use excess capacity within existing facilities, thereby avoiding the need to construct new facilities, and (ii) documents to the satisfaction of the Director that either (1) such existing facilities are not available for shared use or (2) co-location is technologically infeasible.
2. New facilities shall be located along arterial roadways, whenever possible.
3. If one or more new cabinets are proposed to be installed adjacent to the front yard of a residential structure, all such facilities shall be placed in underground vaults to conceal such facilities from the view of the adjacent property.
4. If a proposed facility is to be located on a public right-of-way with homes only on one side of the street, any aboveground cabinet shall be installed on the side of the right-of-way where no homes are located.
5. Where existing utility poles, street lights, or other wire-holding structures are available for use, the Director may require such poles and structures to be used if the Director determines that the public convenience would be enhanced by such installation, and the terms of the use are just and reasonable.
6. A new pole may only be constructed if the new pole will not have a significant adverse impact upon a view from a private residence or upon any protected public view corridors, as defined in the City’s general plan;
7. All aboveground facilities, such as overhead drops, shall be placed as close as possible to other utility drops, consistent with all applicable electrical codes.
8. Electrical meters shall be installed on existing power poles or other existing structures within the public rights-of-way unless such installation is technologically infeasible or poses a danger for utility workers. Written evidence documenting the infeasibility or danger shall accompany any request for exemption from this requirement.
9. All aboveground facilities shall be maintained in good condition and free from graffiti. Any graffiti shall be removed immediately in accordance with the requirements of this code. To ensure compliance with this requirement, the applicant shall affix a coded label or marker to its aboveground facilities that identifies the specific facility and sets forth a telephone number that may be called to report any damage, destruction, or graffiti vandalism involving the facility.
10. Aboveground facilities shall be designed to be as unobtrusive and as aesthetically pleasing as possible. To the extent feasible, aboveground facilities shall be screened by vegetation or by another barrier or berm that is compatible with the surrounding area. The colors of aboveground facilities shall blend with the surroundings. In no event shall any facility be painted or finished with a shiny or reflective surface.
11. All aboveground facilities shall be no greater in volume or dimension, or both, than is reasonably necessary to provide the services proposed by applicant.
12. All aboveground facilities shall be installed in compliance with all applicable laws, including, without limitation, the Americans With Disabilities Act and the provisions of Chapter 13.10 of this Code.

E. Notice of Decision. The director shall provide written notice of his or her decision approving or denying a request for a right-of-way use permit by first class mail to: the applicant, the property owner, if applicable, the owners of the properties immediately adjacent to and across from any proposed new aboveground facility that is to be affixed to the ground, any person who submitted written comments concerning the applicant’s request; and any person who has filed a written request with the City to receive such notice. The written notice shall:

1. Provide a general explanation of the decision; and
2. Inform recipients of the notice of the right of any interested person to appeal the decision to the City Council and explain how that right may be exercised.

12.06.070 Appeal.

A. Appeal of a Director’s Decision. Any interested person may file an appeal of a decision of the Director to the City Council; provided, the appeal is filed in writing within fifteen (15) calendar days after final action by the Director and the appropriate fee, as established by resolution of the City Council, is paid. The appeal shall set forth the grounds for appeal and any specific action being requested by the appellant. The Director’s decision is final if no appeal is filed within fifteen (15) calendar days.

B. Hearing Date. The City Clerk shall fix the time for hearing the appeal.

C. Notice. Notice of public hearing shall be given at least fifteen (15) calendar days before the hearing date by first class mail to the applicant, the property owner, if applicable, the owners of all properties immediately adjacent to and across from any proposed new aboveground facility that is to be affixed to the ground, any person who submitted written comments concerning the applicant’s request; and any person who has filed a written request with the City to receive such notice. The notice of hearing shall include:

1. The date, time and place of hearing;
2. A general explanation of the matter to be considered; and
3. The address or general location of the project site.

D. Record on Appeal. All materials on file with the Director shall be part of the City Council appeal hearing record. In addition, any person may offer supplemental evidence during the appeal hearing. Accordingly, the City Council appeal hearing is not limited to consideration of the materials presented to the Director. Any matter or evidence relating to the action on the application, regardless of the specific issue appealed, may be reviewed by the City Council at the appeal hearing.

E. Action on Appeal. In conducting an appeal hearing, the City Council may:

1. Approve the application upon finding that all applicable findings have been correctly made and all provisions of this chapter are satisfied; or
2. Approve the application but impose additional or different conditions or guarantees as it deems necessary to fulfill the purposes of this chapter; or
3. Deny the application without prejudice, upon a finding that all applicable findings have not been correctly made or all provisions of this chapter have not been complied with but that, in either case, the application has merit and may possibly be modified to conform with the provisions of this chapter; or
4. Disapprove the application upon finding that all applicable findings cannot be made or all provisions of this chapter have not been complied with; or
5. Refer the matter back to the Director with instructions.

F. Vote Required. A simple majority of the City Council members voting shall be required to overrule or modify a decision by the Director that is appealed, or to grant an appealed application where the Director has failed to act within the time permitted by law.

G. Effective Date. A decision of the City Council sustaining, overruling or modifying any decision, determination or requirement of the Director shall be final and conclusive when rendered. In cases where the City Council adopts a resolution memorializing the Council’s decision, final action shall be the adoption of the resolution.

H. Denial Without Prejudice. Notwithstanding any contrary application filing restrictions for any permit application filed pursuant to this title, an application that has been denied without prejudice on appeal may be refiled at any time. The refiled application must be accompanied by the standard filing fee, unless the fee is waived by the City Council.

I. Appeal fee refund. All appeal fees shall be refunded to a successful appellant. An appellant is considered successful if a final decision is rendered granting his/her appeal. If an appeal results in a modification to the project, other than changes specifically requested in the appeal, then one-half of the appeal fee shall be refunded to the successful appellant.

J. Appeals by City Council. A final decision of the director on an application filed pursuant to this chapter may be appealed by the city council, on its own motion, in the following manner:

1. Any one City Council member may contact the City Manager and request that an item be placed on the next City Council agenda so that the entire City Council can consider whether to appeal the Director’s decision on an application. The request from the Council Member must be made in writing within fifteen (15) calendar days of the Director’s final decision on an application.

2. If a timely appeal request from a Council Member is received by the city manager, the appeal period for the City Council shall be automatically extended by thirty (30) additional calendar days. This extended appeal period shall apply only to City Council appeals in order for the City Council to determine whether to appeal the Director’s decision.

3. An applicant or any other interested person may file an appeal with the City before or after an appeal request has been made by a Council Member, provided the appeal is filed within the standard fifteen (15) day appeal period. Neither an applicant nor any other interested party may file an appeal during the City’s extended thirty (30)-day appeal period.

4. The City Council shall determine by a majority vote whether to appeal the Director’s decision.

12.06.080 Term of permit.

Unless otherwise specified in the right-of-way use permit, a right-of-way use permit granted under this chapter shall be valid for a period of ten (10) years.

12.06.090 Amendment; application and determination.

A permittee may apply to amend its right-of-way use permit to revise the rights-of-way within which the permittee is authorized to place, construct, own, control, operate, manage, or use its facilities, as long as the type of facilities and the use of such facilities is already authorized by the permittee’s existing permit. The amendment application shall contain the information required under section 12.06.040, and shall be accompanied by the application fee specified therein. Within sixty (60) days after the amendment application is deemed complete, the Director shall approve or deny the amendment application in whole, in part, or with additional conditions, applying the following criteria:

1. The criteria set forth in section 12.06.060.
2. The applicant’s history and current compliance with any applicable right-of-way use permit, this chapter, or any other applicable local, state or federal law, regulation, or policy.

12.06.100 Renewal; application and determination.

A permittee that desires to renew its right-of-way use permit may file an application with the city for renewal, not more than one (1) year nor less than one hundred and eighty (180) days before expiration of its current right-of-way use permit. The renewal application shall contain the information required under section 12.06.040, and shall be accompanied by the application fee specified therein. Within ninety (90) days of the renewal application being deemed complete, the Director shall grant or deny the renewal application in whole, in part, or with additional conditions, applying the following criteria:

1. The criteria set forth in section 12.06.060.
2. The applicant’s history and current compliance with any applicable right-of-way use permit, this chapter, or any other applicable local, state or federal law, regulation, or policy.
3. The continuing capacity of the streets, alleys, or other public rights-of-way identified in the renewal application to accommodate the applicant’s facilities and use(s) of the public rights-of-way.
4. The continuing compatibility of the proposed use with the public’s use of the right-of-way.

12.06.110 Use of facilities; change in use.

Permittee’s facilities shall be placed, constructed, owned, controlled, operated, managed, and used solely and exclusively for the purpose(s) and use(s) expressly set forth in Permittee’s right-of-way use permit. Permittee shall not in any way use, or authorize or allow another person to use, any facility subject to permittee’s right-of-way use permit for any purpose or use other than the purpose(s) and use(s) expressly set forth in the right-of-way use permit, nor shall permittee’s facilities occupy any portion of the right-of-way not expressly identified in the right-of-way use permit.

12.06.120 Transfer of permit or facilities.

The issuance of a right-of-way use permit is a privilege to be held personally by permittee. Subject to applicable law, no right-of-way use permit or any facility permitted hereunder shall be sold, leased, licensed, assigned, disposed of, or otherwise transferred, in whole or in part, either by involuntary or voluntary sale, merger, consolidation, stock transfer, transfer in trust, or otherwise, without the prior written consent of the City. A sale or transfer of stock, assets, or other equitable interests of permittee, or any parent, subsidiary, or other affiliate or permittee, which effects a material change in permittee’s ownership or control, as determined by the City, shall be deemed to be a transfer for purposes of this section. Any transfer shall be made only by an instrument in writing, such as a bill of sale, or similar document, a duly executed copy of which shall be filed in the office of the City Clerk within thirty days (30) after any such transfer or assignment. The consent of the Director to a transfer shall be evidenced in writing and may not be unreasonably denied. Any proposed transferee must show that it has the financial, technical and legal ability to perform all obligations and requirements of the right-of-way use permit as determined by the Director and must agree in writing to comply with all provisions of the right-of-way use permit and this chapter. No consent by the City shall be required for a transfer in trust, mortgage or other hypothecation, in whole or in part, to secure any indebtedness.

12.06.130 Nonexclusive use; limitations.

A. Any right-of-way use permit granted under this chapter shall be for the nonexclusive use of the public rights-of-way. By issuing a particular right-of-way use permit, the City does not agree to restrict the number of right-of-way use permits to be granted that cover all or any part of the City for any person in the same business, a competing business, or a related business as the permittee.

B. A right-of-way use permit only authorizes permittee to use the portions of the public rights-of-way specified in the permit, and the use of any other public property, whether located within or outside a public right-of-way, is strictly prohibited unless authorized by a separate agreement with the City.

C. Any right-of-way use permit granted under this chapter shall be deemed to grant no more than the rights that the City may have the authority to grant.

D. Any privilege claimed by permittee in any public right-of-way shall be subordinate to the rights of the general public to use the public right-of-way and to any prior lawful occupancy of the public right-of-way.

E. Permittee shall have no recourse whatsoever against the City for any loss, cost, expense, or damage arising out of any provision or requirement of this chapter, or of any right-of-way use permit granted under this chapter, or because of the enforcement of such provisions.

12.06.140 Facilities - Relocation; removal.

Every person subject to this chapter hereby acknowledges that, in accordance with applicable state law, by accepting any right to use the public rights-of-way bestowed by a right-of-way use permit granted under this chapter it assumes an obligation to pay for the relocation its facilities when necessary to make way for a proper public use of the right-of-way. Every holder of a right-of-way shall, at its expense, protect, support, temporarily disconnect, relocate or remove from any public right-of-way, any facility owned, operated or maintained by such person when required by the Director by reason of traffic conditions, public safety, street vacation, freeway or street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks, or any other public use of the public rights-of-way.

12.06.150 Facilities - Abandonment; removal

A. Notice of Removal. In the event the use of any facility is discontinued for any reason for a continuous period of six (6) months, or in the event any facility has been installed in any public right-of-way without complying with the requirements of this chapter, or in the event the required right-of-way use permit is revoked pursuant to the provisions of section 12.06.190, the owner of each facility shall promptly, upon being given thirty (30) days’ prior notice, remove from the public rights-of-way all such facilities, other than any which the Director may permit to be abandoned in place. In the event of such removal, the area from which such facility has been removed shall be promptly restored to a condition satisfactory to the Director.

B. Abandonment. Any facility remaining in place one hundred and twenty (120) days after the delivery of the notice set forth in this section shall be considered permanently abandoned. The Director may extend such time as may be necessary under the circumstances.

C. ‘In Place’ Abandonment. Any facility abandoned in place in the public rights-of-way shall be abandoned in such manner as the Director shall prescribe. Upon permanent abandonment, the facility shall become the lawful property of the City, and the owner of such facility shall submit to the Director an instrument in writing, to be approved by the City Attorney, transferring ownership of the facility to the City.

12.06.160 Damage to facilities and public property.

A. The City, its elected officials, officers, employees, and agents shall not be liable for any damage to or loss of any facility placed in, upon, above, beneath, or across a public right-of-way unless such damage or loss is caused by the sole negligence or willful misconduct of the City.

B. Any damage done directly or indirectly to any public right-of-way or other public property or improvement by any person subject to this chapter, shall be promptly repaired, at the person’s sole cost and expense, to the complete satisfaction of the Director. Alternatively, the City may, in its sole discretion, choose to perform the repair work itself, in which case the responsible person shall reimburse the City for the full costs of the repair work within thirty (30) days after receiving a statement detailing such costs.

12.06.170 Indemnification.

Every person subject to this chapter shall defend, indemnify, and hold harmless the City, its elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liabilities, losses, damages, or injuries, to property or persons, including wrongful death, whether imposed by a court of law or by administrative action of any federal, state, or local governmental body or agency, arising out of or incident to any acts, omissions, negligence, or willful misconduct of permittee, its officers, employees, agents, contractors, or subcontractors in connection with the exercise of a right-of-way use permit or the use of any public right-of-way. This indemnification excludes only such portion of any claim, demand, cause of action, liability, loss, damage, penalty, fine, or injury, to property or persons, including wrongful death, which is caused by the sole negligence or willful misconduct of the City as determined by a court or administrative body of competent jurisdiction.

12.06.180 Insurance.

Every person subject to this chapter shall procure and maintain a policy of general liability insurance in an amount which City’s risk manager determines to be sufficient to adequately protect such person and the City against all liability for personal injury, including accidental death, as well as claims for property damage, which may arise from or which concern the activities of the person or the existence of the person’s facilities in the public rights-of-way. The amount of such insurance and any other insurance requirements shall be as designated in the right-of-way use permit, but in no event shall insurance be provided in an amount less than One Million Dollars ($1,000,000) per occurrence.

12.06.190 Suspension or revocation of permit.

The officer or body taking final action granting any right-of-way use permit pursuant to the provisions of this chapter may, after following the same procedures utilized for approving such right-of-way use permit, suspend, revoke, or modify the permit if:

1. The permit was issued erroneously; or
2. The permit was issued on the basis of incorrect or fraudulent information supplied by the applicant; or
3. The permit was issued contrary to the provisions of the Municipal Code; or
4. The permit is being or recently has been, exercised contrary to the terms or conditions of such permit.

No permit shall be revoked prior to providing a ten calendar day written notice to the holder of the permit and an opportunity to be heard before the officer or body considering revocation or suspension of the permit. Any decision to revoke or not to revoke a permit, other than a decision by the City Council, may be appealed by any interested party pursuant to Section 12.06.070 of this Chapter.

12.06.200 Rights reserved to the city.

A. Nothing in this chapter shall contract away, modify, abridge, impair, or affect, in any way, to any extent, the right of the City to acquire any facility located in the public rights-of-way through the exercise of the right of eminent domain.

B. There is reserved to the City every right and power which is required to be reserved or provided by any ordinance of the City, and every person subject to this chapter, by its use of the public rights-of-way, agrees to be bound thereby and to comply with any action or requirements of the City in its exercise of such rights or power.

C. Neither the issuance of a right-of-way use permit nor any provisions of this chapter shall constitute a waiver or bar the exercise of any governmental right or power of the City, including the City’s authority to make any proper public use of the public rights-of-way.

D. The City Council and the Director may do all things that are necessary and convenient in the exercise of the City’s jurisdiction under this chapter.

E. The City shall have the right to supervise all construction or installation work performed subject to the provisions of this chapter and make such inspections as it finds necessary to ensure compliance with the terms of this chapter, a right-of-way use permit, or any other local, state, or federal law, regulation, permit, or standard."

. The City Council hereby finds that it can be seen with certainty that there is no possibility the adoption and implementation of this Ordinance may have a significant effect on the environment. The Ordinance does not authorize any activities that are not already permitted under the Municipal Code. Rather, the Ordinance imposes more stringent regulations on the installation of aboveground facilities within the public rights-of-way to ensure that they are compatible with adjacent land uses and the use of the rights-of-way by the public. The Ordinance is therefore exempt from the environmental review requirements of the California Environmental Quality Act pursuant to Section 15061(b)(3) of Title 14 of the California Code of Regulations.

. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this ordinance, or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remainder of this ordinance. The City Council hereby declares that it would have adopted this ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.

. The City Clerk shall cause this Ordinance to be posted in three (3) public places in the City within fifteen (15) days after its passage, in accordance with the provisions of Section 36933 of the Government Code. The City Clerk shall further certify to the adoption and publication of this Ordinance, and shall cause this Ordinance and its certification, together with proof of posting, to be entered in the Book of Ordinances of the Council of this City.

. This Ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the thirty-first (31st) day after its passage.

PASSED, APPROVED and ADOPTED this _______ day of _______________, 2003.

_____________________________

Mayor

ATTEST:

___________________________

City Clerk