STAFF REPORT

STAFF REPORT

Mayor and City Council

Danielle Staude, Senior Planner~

Introduction of Urgency Ordinance No 18-__ Amending the Mill

Valley Municipal Code to add Chapter 20.73 establishing Wireless

Telecommunication Facilities Regulations and Amending Mill Valley

Municipal Code Sections 11.16.100; 20.24.020; 20.26.020; 20.36.030;

20.40.030; 20.52.020; and 20.56.030 to incorporate Wireless

Telecommunication Facilities.

September 6, 2018

Approved for Forwarding:

ISSUE:

Consideration of an urgency ordinance modifying Title 20 "Zoning" of the Mill Valley

Municipal Code ("Zoning Code"), adding Section 20.73 "Wireless Telecommunications

Facilities Regulations" establishing comprehensive regulations for the installation,

operation and maintenance of wireless telecommunications within the City on private

property and within the City right-of-way.

RECOMMENDATION:

Receive presentation, introduce and adopt the urgency ordinance (ATTACHMENT 1)

with a four-fifths vote.

BACKGROUND:

As the wireless telecommunications industry works to meet the growing demand for

broadband and data services, service providers are seeking to deploy smaller cell and

distributed antenna systems (also known as "DAS''), with many of these facilities

installed in the public right-of-way. The Mill Valley Municipal Code does not currently

provide regulations specific to the installation, operation and maintenance of wireless

telecommunication facilities.

1 Item 8 

Urgency Telecommunications Ordinance

September 6, 2018

26 Federal La,w

27 Both federal and state laws preempt local authority to regulate certain aspects of wireless

28 telecommunications facilities, including regulations related to:

29 • radio frequency or electromagnetic waves that comply with FCC regulations, the

30 collocation on existing wireless telecommunications facilities,

31 • certain modifications to existing wireless telecommunications facilities, and

32 • the installation of wireless telecommunications facilities on existing utility poles

33 in the public rights of way.

34 Key among these limitations is that local regulations cannot have the effect of prohibiting

35 the provision of personal wireless services. These laws, however, preserve local authority

36 to regulate the placement, construction and aesthetics of wireless telecommunications

37 facilities.

38

39 Federal law also requires the City to act on an application for wireless telecommunication

40 facilities within a limited amount of time. These "shot clocks" provide the City:

41 • 60 days to act on an application for an eligible facility that does not substantially

42 change the physical dimensions of the existing wireless telecommunication

43 facilities tower or base station;

44 • 90 days to act on an application for a collocation facility; and

45 • 150 days to act on all other applications.

46 These timeframes may change with federal laws. As such the actual "shot clock" and/or

47 timeframes are not discussed in the .ordinance, but will be provided as part of the

48 application and informational handouts.

49

50 Urgency Ordinance

51 The proposed urgency ordinance is intended to prescribe clear and re.asonable 'criteria to

52 process applications for wireless telecommunications facilities in a consistent and

53 expeditious manner and within the limits of federal and state law.

54

55 This proposed ordinance provides an extensive and comprehensive list of procedures and

56 regulations that allow the community, applicant and internal City Departments to

57 understand how facilities are regulated, installed, maintained and operate within the City.

58 The regulations contained in the proposed ordinance:

59 1. Ensures that the FCC standards regulating radio frequency emissions are strictly

60 followed.

61 2. Establishes an application process for a conditional use permit (CUP) and design

62 review.

63 3. Limits the location of new or updated wireless facilities to private property within

64 commercial zoning districts (outside of single family and multi-family residential

65 districts) and the public right-of-way with an order of preference in terms of

66 location within commercial areas and configuration aimed toward existing

67 facilities.

68 4. Limits the installation of new wireless facilities in the public right-of-way to

69 existing poles that must be 1,500 feet away from the nearest facility.

2 

Urgency Telecommunications Ordinance

September 6, 2018

70 5. Establishes design standards for the appearance and maintenance of facilities,

71 including limiting the height and bulk of facilities and requires the concealment of

72 accessory equipment to the extent feasible.

73 6. Imposes strict noise standards.

74 7. Where feasible, requires upgrades to existing facilities as new technology

75 becomes available to replace larger more visually intrusive facilities with smaller

76 facilities.

77 8. Requires the relocation of any facility in the public right-of-way that would

78 interfere with a future public project or improvements.

79 9. Requires a performance bond to ensure that facilities are promptly removed when

80 they are no longer permitted or needed.

81 10. Requires the permittee to defend and indemnify the City from any liabilities

82 arising from the permits issued by the City and the installation, operation and

83 maintenance of the facilities.

84

85 The ordinance is being proposed as an urgency ordinance which would be adopted

86 pursuant to Government Code Section 36937(b). Under that section, ordinances adopted

87 to protect the health, safety, and welfare with a four-fifths vote of the City Council

88 become effective immediately adoption by 4/5ths vote is required by state law). Given

89 the increased interest in construction of small-cell facilities in the public right-of-way, it

90 is critical that the City update its regulations to reflect current federal and state law and

91 recent trends in wireless facilities. The adoption of urgency standards will ensure that the

92 City is able to limit disruption to the public right-of-way as well as impose aesthetic

93 regulations on new facilities.

94

95 Staff is also working to establish permanent regulations which require additional public

96 notice, Planning Commission and City Council review, followed by City Council

97 adoption.

98

99 DISCUSSION:

100 The proposed urgency ordinance provides uniform and comprehensive regulations for the

101 permitting, development, siting, installation, design, operation and maintenance of

102 wireless telecommunications facilities in the City. The ordinance is similar to recent

103 regulations enacted in San Anselmo and Ross. The ordinance also imposes some

104 additional requirements on telecommunications facilities that are pole mounted to the

105 existing public utility infrastructure (known as "small cell wireless facilities") based on

106 community interest and recent regulations established in Petaluma (see staff report, lines

107 171-205).

108

109 Applicable Projects (20.73.030)

110 The urgency ordinance becomes effective immediately. Those applications not approved

111 prior to the effective date of the urgency ordinance will be subject to the regulations. All

112 other wireless facilities currently in operation will also be subject to the new regulations

113 with regard to operation, maintenance and use.

Urgency Telecommunications Ordinance

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118 Conditional Use Permit (CUP) Required (20.73.040)

119 The permitting process described in the table below reflects the requirements of federal

120 and state law, which mandate ministerial approval of collocations on and minor

121 modifications to existing wireless telecommunications facilities.

122

Private Public

Description Wireless Facility

Property Right-of Way

RS, RSP, DR, RM All Other Zoning Al/Zoning

Zoning Districts Districts Districts

Roof-mounted facility, building- Conditional Use Conditional Use

mounted facility, or facility mounted Not Permitted Permit/ Design Permit/ Design

on an existing pole Review Review

Facility mounted on a replacement Conditional Use Conditional Use

pole or new telecommunications Not Permitted Permit/ Design Permit/ Design

tower Review Review

New wireless telecommunications Conditional Use Conditional Use

collocation facility Not Permitted Permit/ Design Permit/ Design Review Review

Eligible facilities request 1 or

application pursuant to California Permitted Permitted Permitted

Government Code Section 65850.6 2

1 See requirements of section 20.73.140.

2 See requirements of section 20.73.150.

124 Application for CUP Permit (20.73.050)

125 The proposed ordinance prescribes the content for an application for a wireless

126 telecommunications facility permit. The application requires the submission of detailed

127 site and engineering plans, photographs of facility equipment, a visual impact analysis with

128 photo simulations, a noise study, documentation demonstrating compliance with the FCC

129 standards for radio frequency emissions, and certification that the applicant has a right

130 under state law to install facilities in the public right-of-way if that is the proposed location

131 of the facilities. Also, the City may hire a technical consultant to assist the City in the

132 review of the application at the expense of the applicant.

134 Based on existing provisions of the City's Zoning Code, initial wireless facility CUP

135 applications will be heard by the Planning Commission. Smaller subsequent amendments

136 to wireless facility CUPs, such as modifying or collocating equipment, will undergo

137 Zoning Administrator approval. Amendments to CUPs that involve significant design

138 review issues, or are deemed as significant projects by the Planning Director will be heard

139 by Planning Commission. There are also specific design standards, findings and conditions

140 of approval required as part of the approval process for these applications ( discussed

141 below).

Urgency Telecommunications Ordinance

September 6, 2018

144 Location and Configuration Preferences (20.73.060)

145 The proposed ordinance establishes preferences in terms of location and configuration of

146 wireless facilities.

148 Configuration preferences are as follows:

149 1. Collocation with existing facilities,

150 2. Roof-mounted,

151 3. Building-mounted,

152 4. Mounted on an existing utility pole or a new utility pole that will replace an

153 existing utility pole,

154 5. Mounted on a new telecommunication tower.

156 Location preferences are as follows:

157 1. Commercial zoning districts (CG, CN, CL, CD),

158 2. Public right-of-way within commercial zoning districts,

159 3. Public right-of-way within RM zoning districts,

160 4. Mounted on a new telecommunication tower.

162 Design and Development Standards for All Facilities (20.73.070)

163 The proposed ordinance provides specific guidance on the design techniques for

164 camouflaging wireless facilities, and set development standards including the preference in

165 collocating facilities, landscaping screening, signage, lighting, noise restrictions, and

166 security requirements.

168 Additional Standards for Facilities Outside the Public Right-of-Way (20. 73.080)

169 Additional design and development standards are identified for wireless facility

170 applications that are outside the right-of-way including the requirement that the facility

171 cannot interfere with designated parking spaces and additional screening criteria for roof

172 mounted facilities, towers and accessory equipment.

174 Additional Standards for Facilities in the Public Right-of-Way (20.73.060-090)

175 Additional design and development standards are identified for wireless facility

176 applications that are inside the right-of-way including establishing maximum height

177 limits on utility and streetlight poles for antennas, occupation of space, obtaining an

178 encroachment permit, and adhering to Americans with Disability Act (ADA)

179 Compliance, and specific development standards.

181 Additional design and development standards have been incorporated based on the City

182 of Petaluma's recently adopted ordinance, and interest from some community members

183 that are concerned about potential health impacts associated with pole mounted wireless

184 facilities (see ATTACHMENT 2 for public comments). Staff has incorporated a distance

185 requirement (1,500 ft. apart) for pole mounted telecommunications facilities, but has not

186 gone as far as establishing a restriction on the proximity of pole mounted wireless

187 telecommunication to any residence. The City of Petaluma also establishes a 500 foot

188 buffer from any residence as part of its ordinance. Due to the size and scale of Mill

189 Valley, staff recommends moving forward with the followin? standards. and

190 incorporating a buffer, if legally feasible, as part of the regular ordinance. Additional

Urgency Telecommunications Ordinance

September 6, 2018

191 research is required to ensure that such a regulation does not essentially create a ban on

192 such facilities within the City and expose the City to potential litigation. In the meantime,

193 the urgency ordinance provides a 1,500 foot buffer from each small cell facility and

194 prohibits such facilities in residential and multi-family zoning districts.

196 The requirements indicate that wireless facilities in the right-of-way must:

197 1. Connect to an existing utility pole that can support its weight.

198 2. Be separated by at least 1,500 feet.

199 3. Install all new wires needed to service the telecommunications facility within

200 the width of the existing utility pole so as to not exceed the diameter and

201 height of the existing utility pole.

202 4. Underground (flush to the ground, within three (3) feet of the utility pole), all

203 ground-mounted equipment not installed inside the pole.

204 5. Conceal all equipment. Aside from the transmitter/antenna itself, no additional

205 equipment may be visible. All cables, including, but not limited to, electrical

206 and utility cables, shall be run within the interior of the telecommunications

207 tower and shall be camouflaged or hidden to the fullest extent feasible without

208 jeopardising the physical integrity of the tower.

210 Conditions of Approval (20.73.100-110) and Findings for Approval (20.73.120)

211 The proposed ordinance outlines findings and conditions of approval for granting the

212 design review and CUP applications, with additional specific conditions for those use

213 permits in the right-of-way. The CUP expires in 10 years unless renewals are approved by

214 the City.

216 Exceptions (20.73.130)

217 The proposed ordinance allows an applicant to request an exception from the standards in

218 the event that denial of a permit would violate federal or state law. The applicant has the

219 burden of providing sufficient facts to support the request.

221 Wireless Telecommunications Facilities Covered under Section 6409(a) of the Middle

222 Class Tax Relief and Job Creation Act (20.73.140)

223 This Section applies to all collocations or modifications to an existing wireless tower or

224 base station submitted with a written request for approval pursuant to Section 6409(a).

225 Section 6409(a) generally requires that State and local governments " ... not deny, and shall

226 approve" requests to collocate, remove or replace transmission equipment at an existing

227 tower or base station. Such applications undergo administrative review, and the proposed

228 ordinance outlines required findings for approval, denial, and appeal procedure.

230 Collocation Facilities Covered under CA Government Code Section 65850.6 (20.73.150)

231 This section provides the requirements, standards and regulations for a wireless

232 telecommunications collocation facility for which subsequent collocation is a permitted use

233 pursuant to California law.

235 Additional Requirements (20.73.160-240)

'.236 Additional regulations are estahlished in the remainder of the orc-Jinance including husiness

237 license and encroachment permit requirements, emergency deployment, operation and

Urgency Telecommunications Ordinance

September 6, 2018

238 maintenance standards, permit expiration, cessation of use/abandonment, removal of

239 equipment)

241 EFFECTIVE DATE/NEXT STEPS:

242 The urgency ordinance would become effective immediately. Staff's intent is to

243 implement the urgency ordinance swiftly due to recent inquiries from the wireless

244 industry to upgrade facilities. Staff intends to utilize the urgency ordinance as a means of

245 communication, and to obtain feedback from interested parties, including the local

246 community and wireless industry, as part of the public hearing process for development

247 of a permanent ordinance. Staff plans to bring the regular ordinance to City Council early

248 in 2019, with a projected effective date of approximately March 2019.

250 RECENT CORRESPONDENCE:

251 Staff has received over 150 e-mails from the community. Five of the letters are in support

252 of the new wireless technology, the remaining pieces of correspondence express concern

253 about the possible health impacts related to the wireless 4G and 5G technology, and are

254 urging the City to maintaining local control over the placement, maintenance and operation

255 of wireless telecommunications. See ATTACHMENT 2 for details.

257 ENVIRONMENTAL REVIEW:

258 The proposed amendments to MVMC, Chapter 20 "Zoning" are exempt from the

259 California Environmental Quality Act ("CEQA"). The proposed Ordinance does not

260 constitute a "project" within the meaning of the California Environmental Quality Act of

261 1970 (CEQA) Guidelines Section 15060(c)(2) because there is no potential that small cell

262 facility regulations will result in a direct or reasonably foreseeable indirect physical

263 change in the environment and CEQA Guidelines Section 15378 because they have no

264 potential for either a direct physical change to the environment, or a reasonably

265 foreseeable indirect physical change in the environment. Moreover, even if the proposed

266 Ordinances and Resolution comprise a project for CEQA analysis, the ordinance falls

267 within the "common sense" CEQA exemption set forth in CEQA Guidelines Section

268 15061(b)(3), excluding projects where "it can be seen with certainty that there is no

269 possibility that the activity in question may have a significant effect on the environment."

270 Adoption of this Ordinance will also enact only minor changes in land use regulations,

271 and it can be seen with certainty that its adoption will not have a significant effect on the

272 environment because it will not allow for the development of any new or expanded

273 wireless telecommunication facilities anywhere other than where they were previously

274 allowed under existing federal, state and local regulations. Finally, the wireless facilities

275 themselves are exempt from CEQA pursuant to CEQA Guidelines Section 15305, which

276 exempts minor encroachment permits, and Section 15303, which exempts the installation

277 of small equipment and facilities in a small structure.

278

279 FISCAL IMPACT:

280 The fiscal impacts associated with the Ordinance are the costs associated with the City

281 Attorney and staff time to prepare the Ordinance and staff report. Once the regulations are

282 adopted and implemented, the application fees for a Conditional Use Permit and Design

283 Review would cover the cost of the discretionary approvals.

284 GENERAL PLAN COMPLIANCE:

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Urgency Telecommunications Ordinance

September 6, 2018

285 Adoption of this Ordinance is consistent with the City's General Plan. The City's General

286 Plan provides goals and policies to preserve the high-quality design, small-town character,

287 aesthetics and environmental characteristics while also maintaining a strong, healthy

288 economy for its local business and assuring the health and safety of the predominantly

289 residential character of the community. Adoption of this Ordinance will provide uniform

290 and comprehensive regulations and standards for wireless telecommunications facilities in

291 furtherance of these goals and objectives while reducing the potentially negative impacts.

292

293 ATTACHMENTS:

294 1. Ordinance

295 2. Recent Correspondence (over 150 e-mails received most of which are form letters,

296 please contact planner to view all emails on file, or download all comments online at

297 http://www.cityofmillvalley.org/gov/agendas/watchonline.htm--go to "upcoming

298 meetings", locate the City Council tab and select the September 6, 2018 meeting.

299

8 

CITY OF MILL VALLEY

ORDINANCE NO. 18-

-----

AN URGENCY ORDINANCE OF THE CITY OF MILL VALLEY AMENDING TITLE 20

("ZONING") OF THE MILL VALLEY MUNICIPAL CODE TO ADD CHAPTER 20.73

AND AMEND SECTIONS 11.16.100; 20.24.020; 20.26.020; 20.36.030; 20.40.030;

20.52.020; and 20.56.030 ESTABLISHING REGULATIONS FOR WIRELESS

TELECOMMUNICATION FACILITIES

1 WHEREAS,_This Ordinance is adopted as an urgency ordinance pursuant to Government

2 Code Section 36937(b). The facts constituting the urgency are as follows:

3

4 (1) The purpose of this Ordinance is to amend the City's Municipal Code to provide

5 uniform and comprehensive standards, regulations and permit requirements for the installation

6 of wireless telecommunications facilities in the City's public right-of-way.

7

8 (2) The wireless telecommunications industry has expressed interest in submitting

9 applications for the installation of "small cell" wireless telecommunications facilities in the

10 City's public rights-of-way of the City. Other California cities have already received applications

11 for small cells to be located within the public right-of-way.

12

13 (3) Installation of small cell and other wireless telecommunications facilities within

14 the public right-of-way can pose a threat to the public health, safety and welfare, including

15 disturbance to the right-of-way through the installation and maintenance of wireless facilities;

16 traffic and pedestrian safety hazards due to the unsafe location of wireless facilities; impacts to

17 trees where proximity conflicts may require unnecessary trimming of branches or require

18 removal of roots due to related undergrounding of equipment or connection lines; land use

19 conflicts and incompatibilities including excessive height or poles and towers; creation of visual

20 and aesthetic blights and potential safety concerns arising from excessive size, heights, noise or

21 lack of camouflaging of wireless facilities including the associated pedestals, meters, equipment

22 and power generators; and the creation of unnecessary visual and aesthetic blight by failing to

23 utilize alternative technologies or capitalizing on collocation opportunities which may

24 negatively impact the unique quality and character of the City.

25

26 (4) The City currently regulates wireless telecommunications facilities in the public

27 right-of-way through zoning and the encroachment permit process. The existing standards

28 have not been updated to reflect current telecommunications tren ds or necessary legal

29 requirements. Further the primary focus of the zoning regulations is wireless

30 te.lecommunications facilities located on private property, and the existing Code provisions

31 were not specifically designed to address the unique legal and practical issues that arise in

32 connection with wireless telecommunications facilities deployed in the public right-of-way.

1

ATTACHMENT 1 

33 (5) The Federal Telecommunications Act of 1996 preempts and declares invalid all

34 state rules that restrict entry or limit competition in both local and long-distance telephone

35 service.

36

37 (6) The California Public Utilities Commission (CPUC) is primarily responsible for the

38 implementation of local telephone competition and the CPUC issues certificates of public

39 convenience and necessity to new entrants that are qualified to provide competitive local

40 telephone exchange services and related telecommunications service, whether using their own

41 facilities or the facilities or services provided by other authorized telephone corporations.

42

43 (7) Section 234(a) of the California Public Utilities Code defines a "telephone

44 corporation" as "every corporation or person owning, controlling, operating, or managing any

45 telephone line for compensation within this state."

46

47 (8) Section 616 of the California Public Utilities Code provides that a telephone

48 corporation "may condemn any property necessary for the construction and maintenance of its

49 telephone line."

so

51 (9) Section 2902 of the California Public Utilities Code authorizes municipal

52 corporations to retain their powers of control to supervise and regulate the relationships

53 between a public utility and the general public in matters affecting the health, convenience,

54 and safety of the general public, including matters such as the use and repair of public streets

55 by any public utility and the location of the poles, wires, mains, or conduits of any public utility

56 on, under, or above any public streets.

57

58 (10) Section 7901 of the California Public Utilities Code authorizes telephone and

59 telegraph corporations to construct telephone or telegraph lines along and upon any public

60 road or highway, along or across any of the waters or lands within this state, and to erect poles,

61 posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of

62 their lines, in such manner and at such points as not to incommode the public use of the road

63 or highway or interrupt the navigation of the waters.

64

65 (11) Section 7901.1 of the California Public Utilities Code confirms the right of

66 municipalities to exercise reasonable control as to the time, place, and manner in which roads,

67 highways, and waterways are accessed, which control must be applied to all entities in an

68 equivalent manner, and may involve the imposition of fees.

69

70 (12) Section 50030 of the California Government Code provides that any permit fee

71 imposed by a city for the placement, installation, repair, or upgrading of telecommunications

72 facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all

73 required authorizations from the CPUC and the FCC to provide telecommunications services,

74 must not exceed the reasonable costs of providing the service for which the fee is charged, and

75 must not be levied for general revenue purposes.

2 

76 (13) State and federal law have changed substantially since the City last adopted

77 regulations for wireless telecommunications facilities in the City. Such changes include

78 modifications to 11shot clocks" whereby the City must approve or deny installations within a

79 certain period of time. State and federal laws require local governments to act on permit

80 applications for wireless facilities within a prescribed time period and may automatically deem

81 an application approved when a failure to act occurs. See 47 U.S.C. § 332(c)(7)(B)(iii); 47 C.F.R.

82 §§ 1.40001 et seq.; Cal. Gov't Code § 65964.1. The Federal Communications Commission (FCC)

83 may require a decision on certain applications in as few as 60 days. See 47 C.F.R.

84 § l.40001(c)(2); see also In the Matter of Acceleration of Broadband Deployment by Improving

85 Wireless Facilities Siting Policies, Report and Order, 29 FCC Red. 12865 (Oct. 17, 2014)

86 [hereinafter 112014 Report and Order"]; In the Matter of Petition for Declaratory Ruling to

87 Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Declaratory Ruling, 24

88 FCC Red. 13994 (Nov. 18, 2009) [hereinafter "2009 Declaratory Ruling"]. Pursuant to FCC

89 regulations, the City cannot adopt a moratorium ordinance to toll the time period for review for

90 certain type of facilities, even when needed to allow the City to maintain the status quo while it

91 reviews and revises its policies for compliance with changes in state or federal law. See 47

92 C.F.R. § 1.4000l(c)(3); 2014 Report and Order, 29 FCC Red. at 219, 265. The City is in immediate

93 need of clear regulations for wireless installations in the public right-of-way given the number

94 of anticipated applications and legal timelines upon which the City must act.

95

96 (14) The public right-of-way in the City is a uniquely valuable public resource, closely

97 linked with the City's natural beauty including the beach and coastline, and significant number

98 residential communities. The reasonably regulated and orderly deployment of wireless

99 telecommunications facilities in the public right-of-way is desirable, and unregulated or

100 disorderly deployment represents an ever-increasing and true threat to the health, welfare and

101 safety of the community.

102

103 (15) The regulations of wireless installations in the public right-of-way are necessary

104 to protect and preserve the aesthetics in the community, as well as the values of properties

105 within the City, and to ensure that all wireless telecommunications facilities are installed using

106 the least intrusive means possible.

107

108 (16) The City finds that in light of more recent developments in federal and state law

109 with respect to the regulation of small cell and other wireless telecommunications facilities,

110 there is a need for the City to update its current ordinances based on current

111 telecommunications trends, updates in laws, as well as aesthetic and location options for

112 wireless facilities. The City Council also finds that the lack of specifically-designed standards

113 and regulations in the Municipal Code for wireless facilities located in the public right-of-way,

114 the increasing requests for information about the City's regulation of wireless

115 telecommunications facilities, the inability to adopt a temporary moratorium, and the potential

116 liabilities and negative consequences for noncompliance with state and federal regulations

117 (including, without limitation, automatic approvals) present current and immediate threat to

118 the public health, safety and welfare. The City Council further finds and declares that the

3 

119 immediate implementation of the Ordinance is necessary to preserve and protect public health,

120 safety and welfare.

121

122 (17) The City recognizes its responsibilities under the Federal Telecommunications

123 Act of 1996 and state law, and believes that it is acting consistent with the current state of the

124 law in ensuring that irreversible development activity does not occur that would harm the

125 public health, safety, or welfare. The City does not intend that this Ordinance prohibit or have

126 the effect of prohibiting telecommunications service; rather, but includes appropriate

127 regulations to ensure that the installation, augmentation and relocation of wireless

128 telecommunications facilities in the public rights-of-way are conducted in such a manner as to

129 lawfully balance the legal rights of applicants under the Federal Telecommunications Act and

130 the California Public Utilities Code while, at the same time, protect to the full extent feasible

131 against the safety and land use concerns described herein.

132

133 Based on the foregoing, the City Council finds and determines that the immediate

134 preservation of the public health, safety and welfare requires that this Ordinance be enacted as

135 an urgency ordinance pursuant to Government Code Section 36937(b), and take effect

136 immediately upon adoption. Therefore, this Ordinance is necessary for the immediate

137 preservation of the public peace, health, safety and welfare and its urgency is hereby declared.

138

139 WHEREAS, adoption of this Ordinance is consistent with the City's General Plan. The

140 City's General Plan provides goals and policies to preserve the high-quality design, small-town

141 character, aesthetics and environmental characteristics while also maintaining a strong,

142 healthy economy for its local business and assuring the health and safety of the predominantly

143 residential character of the community. Adoption of this Ordinance will provide uniform and

144 comprehensive regulations and standards for wireless telecommunications facilities in

145 furtherance of these goals and objectives while reducing the potentially negative impacts.

146

147 NOW, THEREFORE, the City of Mill Valley City Council does ordain as follows:

Section 1. The Mill Valley Municipal Code is hereby amended as follows:

151 A. A new Section 20.73, entitled "Wireless Telecommunications Facilities" is hereby

152 added to Title 18 of the Mill Valley Municipal Code to read as set forth in Exhibit A to this

153 Ordinance, which is hereby incorporated as though set forth in full herein.

154

155 B. Section 11.16.100 (Blan ket Permits for Certain Applicants) is hereby amended to

156 include the following subsection:

157 "D. Notwithstanding Subsection A of this Section, no Wireless Telecommunications

158 Facility governed by Chapter 20.73 shall be installed or maintained pursuant to a blanket

159 permit."

160

4 

161 C. Section 20.24.020 of Chapter 20.24 (Residential Multifamily (RM-3.5) District) is

162 hereby amended to include the following conditional use:

163 "N. Wireless Telecommunications Facilities as further outlined in 20.73."

164

165 D. Section 20.26.020 of Chapter 20.26 (Downtown Residential (DR) District) is

166 hereby amended to include the following conditional use as part of the proposed table:

167 "Wireless Telecommunications Facilities as further outlined in 20.73."

168

169 E. Section 20.36.030 of Chapter 20.36 (Limited Commercial (C-L) District) is hereby

170 amended to include the following conditional use:

171 "E. Wireless Telecommunications Facilities as further outlined in 20.73."

172

173 F. Section 20.40.030 of Chapter 20.40 (General Commercial (C-G) District) is hereby

174 amended to include the following conditional use:

175 "AA. Wireless Telecommunications Facilities as further outlined in 20.73."

176

177 G. Section 20.52.020 of Chapter 20.52 (Commercial Recreational (C-R) District) is

178 hereby amended to include the following conditional use:

179 "I. Wireless Telecommunications Facilities as further outlined in 20.73."

180

181 H. Section 20.56.030 of Chapter 20.56 (Open Area (O-A) District) is hereby amended

182 to include the following conditional use:

183 "H. Wireless Telecommunications Facilities as further outlined in 20.73."

184

185 Section 2. The City Council hereby finds that Adoption of this Ordinance will enact

186 only minor changes in land use regulations, and it can be seen with certainty that its adoption

187 will not have a significant effect on the environment because it will not allow for the

188 development of any new or expanded wireless telecommunication facilities anywhere other

189 than where they were previously allowed under existing federal, state and local regulations.

190 The wireless facilities themselves are exempt from CEQA pursuant to CEQA Guidelines Section

191 15305, which exempts minor encroachment permits, and Section 15303, which exempts the

192 installation of small equipment and facilities in a small structure. The proposed Ordinance also

193 falls within the "common sense" CEQA exemption set forth in CEQA Guidelines Section

194 15061(b)(3), excluding projects where "it can be seen with certainty that there is no possibility

195 that the activity in question may have a significant effect on the environment."

196

197 Section 3. Severabilit y. If any section, subsection, sentence, clause, phrase, or word

198 of this Ordinance is, for any reason, deemed or held to be invalid or unconstitutional by the

199 decision of any court of competent jurisdiction, or preempted by legislative enactment, such

200 decision or legislation shall not affect the validity of the remaining portions of this Ordinance.

201 The City Council of the City of Mill Valley hereby declares that it would have adopted this

202 Ordinance and each section, subsection, sentence, clause, phrase, or word thereof, regardless

5 

203 of the fact that any one or more sections, subsections, clauses, phrases, or word might

204 subsequently be declared invalid or unconstitutional or preempted by subsequent legislation.

205

206 Section 4. Notice. The City clerk shall certify to the passage and adoption of this

207 Ordinance and shall cause this Ordinance to be posted within 15 days after its passage, in

208 accordance with Section 36933 of the Government Code.

209

210 Section 5. Effective Date. This ordinance is adopted as an urgency ordinance for

211 the immediate preservation of the public peace, health and safety within the meaning of

212 Government Code Section 36937(b) and therefore shall be passed immediately upon its

213 introduction and shall become effective immediately, and shall be posted in three public places

214 in the City.

215

216 INTRODUCED at a regular meeting of the City Council of the City of Mill Valley on the

217 6th day of September, 2018, and

218

219 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Mill Valley

220 on this 6th day of September, 2018, by the following vote:

221

222 AYES:

223 NOES:

224 ABSENT:

226 ABSTAIN:

230 Stephanie Moulton-Peters, Mayor

232 ATTEST:

236 Kelsey Rogers, City Clerk

6 

1 20.73.010 Purpose

Exhibit A

URGENCY ORDINANCE

Chapter 20.73

WIRELESS TELECOMMUNICATIONS FACILITIES

2 A. The purpose and intent of this chapter is to provide a uniform and comprehensive set of

3 regulations and standards for the permitting, development, siting, installation, design, operation

4 and maintenance of wireless telecommunications facilities in the City of Mill Valley. These

5 regulations are intended to prescribe clear and reasonable criteria to assess and process

6 applications in a consistent and expeditious manner, while reducing the impacts associated with

7 wireless telecommunications facilities. This chapter provides standards necessary to: (1) preserve

8 and promote harmonious land uses and the public right-of-way in the City; (2) promote and protect

9 public health and safety, community welfare, visual resources, and the aesthetic quality of the City

10 consistent with the goals, objectives and policies of the General Plan; (3) provide for the orderly,

11 managed, and efficient development of wireless telecommunications facilities in accordance with

12 the state and federal laws, rules, and regulations; and (4) encourage new and more efficient

13 technology in the provision of wireless telecommunications facilities.

14 B. This chapter is not intended to, nor shall it be interpreted or applied to: (1) prohibit or

15 effectively prohibit any personal wireless service provider's ability to provide personal wireless

16 services; (2) prohibit or effectively prohibit any entity's ability to provide any interstate or intrastate

17 telecommunications service, subject to any competitively neutral and nondiscriminatory rules or

18 regulation for rights-of-way management; (3) unreasonably discriminate among providers of

19 functionally equivalent services; (4) deny any request for authorization to place, construct or modify

20 personal wireless service facilities on the basis of environmental effects of radio frequency

21 emissions to the extent that such wireless facilities comply with the FCC's regulations concerning

22 such emissions; (5) prohibit any collocation or modification that the City may not deny under federal

23 or state law; or (6) otherwise authorize the City to preempt any applicable federal or state law.

24 20.73.020 Definitions. For the purposes of this chapter, the following defined terms shall have

25 the meaning set forth in this section unless the context clearly indicates or requires a different

26 meaning.

27 A. "Accessory Equipment" means any equipment associated with the installation of a wireless

28 t elecommun ications facility, including but not limited to cabling, generators, air conditioning units,

29 electrical panels, equipment shelters, equipment cabinets, equipment buildings, pedestals, meters,

30 vaults, splice boxes, and surface location markers.

31 B. "Antenna" means that part of a wireless telecommunications facility designed to radiate or

32 receive radio frequency signals or electromagnetic waves for the provision of services, including, but

33 not limited to, cellular, paging, personal communications services (PCS) and microwave

Exhibit A, Page 1 

34 communications. Such devices include, but are not limited to, directional antennas, such as panel

35 antenna, microwave dishes, and satellite dishes; omnidirectional antennas; wireless access points

36 (Wi-Fi); and strand-mounted wireless access points. This definition does not apply to broadcast

37 antennas, antennas designed for amateur radio use, or satellite dishes designed for residential or

38 household purposes.

39 C. "Base Station" means the same as defined by the FCC in 47 C.F.R. § 1.40001(b)(l), as may be

40 amended, which defines that term as a structure or equipment at a fixed location that enables FCC41

licensed or authorized wireless communications between user equipment and a communications

42 network. The term does not encompass a tower as defined in 47 C.F.R. § 1.40001(b)(9) or any

43 equipment associated with a tower. The term includes, but is not limited to, equipment associated

44 with wireless communications services such as private, broadcast, and public safety services, as well

45 as unlicensed wireless services and fixed wireless services such as microwave backhaul. The term

46 includes, but is not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, regular and

47 backup power supplies, and comparable equipment, regardless of technological configuration

48 (including distributed antenna systems and small-cell networks). The term includes any structure

49 other than a tower that, at the time the relevant application is filed with the State or local

50 government under this section, supports or houses equipment described in 47 C.F.R. §

51 1.40001(b)(l)(i)-(ii) that has been reviewed and approved under the applicable zoning or siting

52 process, or under another State or local regulatory review process, even if the structure was not

53 built for the sole or primary purpose of providing such support. The term does not include any

54 structure that, at the time the relevant application is filed with the State or local government under

55 this section, does not support or house equipment described in 47 C.F.R. § 1.40001{b)(l)(i)-(ii).

56 D. "Building-mounted" means mounted to the side or fa~ade, but not the roof, of a building or

57 another structure such as a water tank, pump station, church steeple, freestanding sign, or similar

58 structure.

59 E. "Cellular" means an analog or digital wireless telecommunications technology that is based

60 on a system of interconnected neighboring cell sites.

61 F. "Collocation" means the same as defined by the FCC in 47 C.F.R. § 1.40001{b)(2), as may be

62 amended, which defines that term as the mounting or installation of transmission equipment on an

63 eligible support structure for the purpose of transmitting or receiving radio frequency signals for

64 communications purposes. As an illustration and not a limitation, the FCC's definition effectively

65 means "to add" and does not necessarily refer to more than one wireless telecommunication facility

66 installed at a single site.

67 G. "Eligible Facilities Request" means the same as defined by the FCC in 47 C.F.R. §

68 1.40001(b)(3), as may be amended, which defines that term as any request for modification of an

69 existing tower or base station that does not substantially change the physical dimensions of such

70 tower or base station, involving: (i) collocation of new transmission equipment; (ii) removal of

71 transmission equipment; or (iii) replacement of transmission equipment.

Exhibit A, Page 2 

72 H. "Eligible Support Structure" means the same as defined by the FCC in 47 C.F.R. §

73 1.40001{b)(4), as may be amended, which defines that term as any tower or base station as defined

74 in this section, provided that it is existing at the time the relevant application is filed with the State

75 or local government under this section.

76 I. "Existing" means the same as defined by the FCC in 47 C.F.R. § 1.40001(b)(4), as may be

77 amended, which provides that a constructed tower or base station is existing for purposes of the

78 FCC's Section 6409(a) regulations if it has been reviewed and approved under the applicable zoning

79 or siting process, or under another State or local regulatory review process, provided that a tower

80 that has not been reviewed and approved because it was not in a zoned area when it was built, but

81 was lawfully constructed, is existing for purposes of this definition.

82 J. "FCC" means the Federal Communications Commission or its duly appointed successor

83 agency.

84 K. "Modification" means any change to an existing wireless telecommunications facility that

85 involves any of the following: collocation, expansion, modification, alteration, enlargement,

86 intensification, reduction, or augmentation, including, but not limited to, a change in size, shape,

87 color, visual design, or exterior material. Modification does not include repair, replacement, or

88 maintenance if those actions do not involve a change to the existing facility involving any of the

89 following: collocation, expansion, modification, alteration, enlargement, intensification, reduction,

90 or augmentation.

91 L. "Monopole" means a structure consisting of a single pole used to support antennas or

92 related equipment and includes a monopine, monoredwood, and similar monopoles camouflaged to

93 resemble trees or other objects.

94 M. "Personal Wireless Services" means the same as defined in 47 U.S.C. § 332(c)(7)(C)(i), as

95 may be amended, which defines the term as commercial mobile services, unlicensed wireless

96 services and common carrier wireless exchange access services.

97 N. "Personal Wireless Service Facilities" means the same as defined in 47 U.S.C. §

98 332(c)(7)(C)(i), as may be amended, which defines the term as facilities that provide personal

99 wireless services.

100 0. "Zoning administrator" means the City zoning administrator or the City zoning

101 administrator's designee.

102 P. "Pole" means a single shaft of wood, steel, concrete, or other material capable of supporting

103 the equipment mounted thereon in a safe and adequate manner and as required by provisions of

104 the Mill Valley Municipal Code.

105 Q. "Public Right-of-Way or "Right-of-Way" means any public street, public way, public alley or

106 public place, laid out or dedicated, and the space on, above or below it, and all extensions thereof,

107 and additions thereto, under the jurisdiction of the City.

Exhibit A, Page 3 

108 R. "Reviewing Authority" means the person or body who has the authority to review and

109 either grant or deny a wireless telecommunications facility permit pursuant to this chapter.

110 s. "RF" means radio frequency or electromagnetic waves between 30 kHz and 300 GHz in the

111 electromagnetic spectrum range.

112 T. "Roof-mounted" means mounted directly on the roof of any building or structure, above the

113 eave line of such building or structure.

114 U. "Section 6409(a)" means Section 6409(a) of the Middle Class Tax Relief and Job Creation Act

115 of 2012, Pub. L. No. 112-96, 126 Stat. 156, codified as 47 U.S.C. § 1455(a), as such law may be

116 amended from time to time.

117 V. "Section 6409(a) Approval" means the approval required by Section 6409(a).

118 W. "Site" means the same as defined by the FCC in 47 C.F.R. § 1.40001(b}(6}, as may be

119 amended, which provides that for towers other than towers in the public rights-of-way, the current

120 boundaries of the leased or owned property surrounding the tower and any access or utility

121 easements currently related to the site, and, for other eligible support structures, further restricted

122 to that area in proximity to the structure and to other transmission equipment already deployed on

123 the ground.

124 X. "Substantial Change" means the same as defined by the FCC in 47 C.F.R. § -1.40001(b)(7), as

125 may be amended, which defines that term differently based on the particular wireless facility type

126 (tower or base station) and location (in or outside the public right-of-way). For clarity, this definition

127 organizes the FCC's criteria and thresholds for a substantial change according to the wireless facility

128 type and location.

129 1. For towers outside the public rights-of-way, a substantial change occurs when:

130 a) the proposed collocation or modification increases the overall height more than 10%

131 or the height of one additional antenna array not to exceed 20 feet (whichever is

132 greater); or

133 b) the proposed collocation or modification increases the width more than 20 feet from

134 the edge of the wireless tower or the width of the wireless tower at the level of the

135 appurtenance (whichever is greater); or

136 c) the proposed collocation or modification involves the installation of more than the

137 standard number of equipment cabinets for the technology involved, not to exceed

138 four; or

139 d) the proposed collocation or modification involves excavation outside the current

140 boundaries of the leased or owned property surrounding the wireless tower,

141 including any access or utility easements currently related to the site.

Exhibit A, Page 4 

142 2. For towers in the public rights-of-way and for all base stations, a substantial change

143 occurs when:

144 a) the proposed collocation or modification increases the overall height more than 10%

145 or 10 feet (whichever is greater); or

146 b) the proposed collocation or modification increases the width more than 6 feet from

147 the edge of the wireless tower or base station; or

148 c) the proposed collocation or modification involves the installation of any new

149 equipment cabinets on the ground when there are no existing ground-mounted

150 equipment cabinets; or

151 d) the proposed collocation or modification involves the installation of any new ground152

mounted equipment cabinets that are ten percent (10%) larger in height or volume

153 than any existing ground-mounted equipment cabinets; or

154 e) the proposed collocation or modification involves excavation outside the area in

155 proximity to the structure and other transmission equipment already deployed on

156 the ground.

157 3. In addition, for all towers and base stations wherever located, a substantial change

158 occurs when:

159 a) the proposed collocation or modification would defeat the existing concealment

160 elements of the support structure as determined by the zoning administrator; or

161 b) the proposed collocation or modification violates a prior condition of approval,

162 provided however that the collocation need not comply with any prior condition of

163 approval related to height, width, equipment cabinets or excavation that is

164 inconsistent with the thresholds for a substantial change described in this section.

165 The thresholds for a substantial change outlined above are disjunctive. The failure to meet any one

166 or more of the applicable thresholds means that a substantial change would occur. The thresholds

167 for height increases are cumulative limits. For sites with horizontally separated deployments, the

168 cumulative limit is measured from the originally-permitted support structure without regard to any

169 increases in size due to wireless equipment not included in the original design. For sites with

170 vertically separated deployments, the cumulative limit is measured from the permitted site

171 dimensions as they existed on February 22, 2012-the date that Congress passed Section 6409(a).

172 Y. "Telecommunications Tower" or "Tower'' means a freestanding mast, pole, monopole,

173 guyed tower, lattice tower, free standing tower or other structure designed and primarily used to

174 support wireless telecommunications facility antennas.

175 Z. "Transmission Equipment" means the same as defined by the FCC in 47 C.F.R. §

176 1.40001 (b)(8), els may be ame nded, which defines t hat term as equ ipment that faci litates

Exhibit A, Page 5 

177 transmission for any FCC-licensed or authorized wireless communication service, including, but not

178 limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power

179 supply. The term includes equipment associated with wireless communications services including,

180 but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless

181 services and fixed wireless services such as microwave backhaul.

182 AA. "Utility Pole" means a pole or tower owned by any utility company that is primarily used to

183 support wires or cables necessary to the provision of electrical or other utility services regulated by

184 the California Public Utilities Commission.

185 BB. "Wireless Services" means any FCC-licensed or authorized wireless communication service

186 transmitted over frequencies in the electromagnetic spectrum.

187 CC. "Wireless Telecommunications Facility" means any facility constructed, installed, or

188 operated for wireless service. "Wireless telecommunications facility" includes, but is not limited to,

189 antennas or other types of equipment for the transmission or receipt of such signals,

190 telecommunications towers or similar structures supporting such equipment, related accessory

191 equipment, equipment buildings, parking areas, and other accessory development. "Wireless

192 telecommunications facility" does not mean any of the following:

193 1. A facility that qualifies as an amateur station as defined by the FCC, 47 C.F.R. Part 97, of

194 the Commission's Rules, or its successor regulation.

195 2. An antenna facility that is subject to the FCC Over-The-Air-Receiving Devices rule, 47

196 C.F.R. Section 1.4000, or any successor regulation, including, but not limited to, direct-to197

home satellite dishes that are less than one meter in diameter, TV antennas used to

198 receive television broadcast signals and wireless cable antennas.

199 3. Portable radios and devices including, but not limited to, hand-held, vehicular, or other

200 portable receivers, transmitters or transceivers, cellular phones, CB radios, emergency

201 services radio, and other similar portable devices as determined by the zoning

202 administrator.

203 4. Telecommunications facilities owned and operated by any government agency.

204 5. Telecommunications facilities owned and operated by any emergency medical care

205 provider.

206 6. Mobile services providing public information coverage of news events of a temporary

207 nature.

208 7. Any wireless telecommunications facilities exempted from the Mill Valley Municipal Code

209 by federal law or state law.

Exhibit A, Page 6 

210 20.73.030 Applicability

211 A. This chapter applies to all wireless telecommunications facilities as follows:

212 1. All facilities for which applications were not approved prior to the effective date of this

213 chapter shall be subject to and comply with all provisions of this chapter;

214 2. All facilities, notwithstanding the date approved, shall be subject immediately to the

215 provisions of this chapter governing the operation and maintenance, cessation of use

216 and abandonment, removal and restoration of wireless telecommunications facilities and

217 wireless telecommunications collocation facilities and the prohibition of dangerous

218 conditions or obstructions by such facilities; provided, however, that in the event a

219 condition of approval conflicts with a provision of this chapter, the condition of approval

220 shall control unless and until the permit is amended or revoked.

221 B. Title 20, including but not limited to this chapter 20.73 shall not apply to a wireless

222 telecommunications facility on property owned by the City.

223 C. Notwithstanding any provision of the Mill Valley Municipal Code to the contrary, provisions

224 governing the installation of a public utility facility or accessory equipment shall not apply to

225 wireless telecommunications facilities. This chapter 20.73 shall govern all applications for wireless

226 telecommunications facilities.

227 20.73.040 Wireless Telecommunications Facility Permit Required

228 A. Conditional Use Permit required. No wireless telecommunications facility shall be located

229 or modified within the City on any property, including the public right-of-way, without the issuance

230 of a permit as required by this chapter as set forth in the table below. Such permit shall be in

231 addition to any other permit required pursuant to the Mill Valley Municipal Code.

232

Exhibit A, Page 7 

Private Property Public Right-of way3

RS, RSP, DR, All Zoning Districts

Description Wireless Facility MFR All Other Zoning

Zoning Districts

Districts

Roof-mounted facility,

building-mounted facility, or Not Permitted Conditional Use Permit/ Conditional Use Permit/ facility mounted on an Design Review Design Review

existing pole

Facility mounted on a Conditional Use Permit/ Conditional Use Permit/ replacement pole or new Not Permitted Design Review Design Review telecommunications tower

New wireless Conditional Use Permit/ Conditional Use Permit/

telecommunications Not Permitted

collocation facility Design Review Design Review

Eligible facilities request 1 or

application pursuant to Permitted Permitted Permitted California Government Code

Section 65850.6 2

1 See requirements of section 20.73.140.

2 See requirements of section 20.73.150.

3 For any public right of way not within a zoning district, the location of a wireless

telecommunication facility shall be determined based upon the closest district adjacent to the

facility's location.

233

234 B. Non-exclusive grant. No approval granted under this chapter shall confer any exclusive

235 right, privilege, license, or franchise to occupy or use the public right-of-way of the City for delivery

236 of telecommunications services or any other purposes. Further, no approval shall be construed as

237 any warranty of title.

238 20.73.050 Application for Permit

239 A. Application content. All applications for a permit required by this chapter must be made in

240 writing on such form as th e zoning administrator prescribes, which shall include the following

241 information, in addition to all other information determined necessary by the zoning administrator

242 as well as all other information required by the City as part of an application for a conditional use

243 permit:

244 1. Full name and contact information for the facility owner, facility operator, agent (if any),

245 and property owner, and related letter(s) of authorization.

2. The type of facility, including a full written description of the proposed facility, its

purpose and specifications.

3. A detailed site and engineering plan of the proposed facility containing the exact

proposed location of the facility, created by a qualified licensed engineer and in

accordance with requirements set by the zoning administrator.

4. Photographs of facility equipment and an accurate visual impact analysis with photo

simulations.

5. Completion of an RF exposure guidelines checklist, and proof of all applicable licenses or

other approvals required by the FCC.

6. If the application is for a facility that will be located within the public right-of-way, the

applicant shall certify that it is a telephone corporation or state the basis for its claimed

right to enter the right-of-way, and provide a copy of its certificate of public convenience

and necessity (CPCN), if a CPCN has been issued by the California Public Utilities

Commission.

7. A written description identifying the geographic service area for the subject installation,

accompanied by a plan and maps showing anticipated future installations and

modifications for the following two years.

8. A written report that analyzes acoustic levels for the proposed wireless

telecommunications facility and all associated equipment including without limitation all

environmental control units, sump pumps, temporary backup power generators, and

permanent backup power generators in order to demonstrate compliance with chapter

7.16 (Noise Control). The acoustic analysis must be prepared and certified by an engineer

and include an analysis of the manufacturers' specifications for all noise-emitting

equipment and a depiction of the proposed equipment relative to all adjacent property

lines. In lieu of a written report, the applicant may submit evidence from the equipment

manufacturer that the ambient noise emitted from all the proposed equipment will not,

both individually and cumulatively, exceed the applicable limits.

9. If the applicant claims it requires an exception to the requirements of this chapter, all

information and studies necessary for the City to evaluate that claim.

10. An application and processing fee and a deposit for a consultant review as set forth in

paragraph (B) of this section.

11. Any other studies or information determined necessary by the zoning administrator may

be required.

Independent expert.

1. The zoning administrator is authorized to retain on behalf of the City an independent,

qualified consultant to review any application for a permit for a wireless

telecommunications facility to review the technical aspects of the application, including

but not limited to the following matters:

(a) The accuracy, adequacy, and completeness of submissions,

(b) Compliance with applicable radio frequency emission standards,

(c) Whether any requested exception is necessary to close a significant gap in

coverage and is the least intrusive means of doing so,

(d) Technical demonstration of the unavailability of alternative sites, facility

designs or configurations, and coverage analysis, and

(e) The validity of conclusions reached or claims made by applicant.

2. The cost of this review shall be paid by the applicant through a deposit pursuant to an

adopted fee schedule resolution.

294 20. 73.060 Location and Configuration Preferences

295 A. Purpose. The purpose of this section is to provide guidelines to applicants and the reviewing

296 authority regarding the preferred locations and configurations for wireless telecommunication

297 facilities in the City, provided that nothing in this section shall be construed to permit a wireless

298 telecommunication facility in any location or configuration that it is otherwise prohibited by this

299 chapter.

300 B. Review of Location and Configuration. The reviewing authority shall consider the extent to

301 which a proposed wireless telecommunication facility complies with these preferences and whether

302 there are feasible alternative locations or configurations to the proposed facility that are more

303 preferred under this section. If the location or configuration of a proposed facility qualifies for two

304 or more categories of preferred locations or configurations, it shall be deemed to belong to the least

305 preferred category.

306 C. Order of Preference - Configurations. The order of preference for the configuration for

307 wireless telecommunication facilities from most preferred to least preferred is :

308 1. Collocation with existing facilities,

309 2. Roof-mounted,

310 3. Building-mounted,

Exhibit A, Page 10 

311 4. Mounted on an existing pole or utility pole

312 5. Mounted on a new pole or utility pole that will replace an existing pole or utility pole,

313 6. Mounted on a new telecommunication tower.

314 D. Order of Preference - Location. The order of preference for the location of wireless

315 telecommunications facilities from most preferred to least preferred is:

316 1. In the C-G zoning district,

317 2. In the C-N zoning district,

318 3. In the C-L zoning district,

319 4. In the C-D zoning district,

320 5. In the public right-of-way with the closest adjacent district being the C-G district,

321 6. In the public right-of-way with the closest adjacent district being the C-N district,

322 7. In the public right-of-way with the closest adjacent district being the C-L district,

323 8. In the public right-of-way with the closest adjacent district being the C-D district,

324 9. In the public right-of-way with the closest adjacent district being the RM district,

325 10. Any public right-of-way location that abuts the property line of a structure recognized as

326 a local, state or national historic landmark, historic district or on the register of historic

327 places,

328 E. Accessory equipment. In order of preference from most preferred to least preferred,

329 accessory equipment for wireless telecommunication facilities and wireless telecommunications

330 collocation facilities shall be located underground, within a building or structure, on a screened roof

331 top area or structure, or in a rear yard if not readily visible from surrounding properties and the

332 roadway, unless the reviewing authority finds that another location is preferable under the

333 circumstances of the application.

334 20. 73.070 Design and Development Standards for All Facilities

335 A. Basic requirements. The design and development standards set forth in this section apply to

336 all wireless telecommunications facilities no matter where they are located. Wireless

337 telecommunications facilities shall be designed and maintained so as to minimize visual, noise, and

338 other impacts on the surrounding community and shall be planned, designed, located, and erected

339 in accordance with the design and development standards in this section.

340 B. No speculative facilities. A wireless telecommunications facility, wireless

Exhibit A, Page 11 

341 telecommunications collocation facility, or a telecommunications tower, which is built on

342 speculation and for which there is no wireless tenant is prohibited within the City.

343 C. General guidelines. The applicant shall employ screening and camouflage design techniques

344 in the design and placement of wireless telecommunications facilities in order to ensure that the

345 facility is as visually inconspicuous as possible, to prevent the facility from dominating the

346 surrounding area and to hide the facility from predominant views from surrounding properties, all in

347 a manner that achieves compatibility with the community.

348 D. Traffic safety. All facilities shall be designed and located in such a manner as to avoid

349 adverse impacts on traffic safety.

350 E. Antennas. The applicant shall use the least visible antennas possible to accomplish the

351 coverage objectives. Antenna elements shall be flush mounted, to the extent reasonably

352 feasible. All antenna mounts shall be designed so as not to preclude possible future collocation by

353 the same or other operators or carriers. Antennas shall be situated as to reduce visual impact

354 without compromising their function. Whip antennas need not be screened.

355 F. Landscaping. Where appropriate, facilities shall be installed so as to maintain and enhance

356 existing landscaping on the site, including trees, foliage and shrubs, whether or not utilized for

357 screening. Additional landscaping shall be planted, irrigated, and maintained where such vegetation

358 is deemed necessary by the City to provide screening or to block the line of sight between facilities

359 and adjacent uses.

360 G. Signage. Wireless telecommunications facilities and wireless telecommunications

361 collocation facilities shall not bear any signs or advertising devices other than certification, warning

362 or other sign age required by law or permitted by the City.

363 H. Lighting. No wireless telecommunications facility may be illuminated unless either

364 specifically required by the Federal Aviation Administration or other government agency or in

365 association with the illumination of an athletic field on City or school property. Lightning arresters

366 and beacon lights are not permitted unless required by the Federal Aviation Administration or other

367 government agency. Legally required lightning arresters and beacons shall be included when

368 calculating the height of facilities such as telecommunications towers, lattice towers, and

369 monopoles.

I. Noise.

1. Each wireless telecommunications facility and wireless telecommunications collocation

, facility shall be operated in such a manner so as to minimize any possible disruption

caused by noise.

2. Backup generators shall only be operated during periods of power outages, and shall not

be tested on weekends or holidays, or between the hours of 5:00 p.m. and 7:00 a.m.

Exhibit A, Page 12 

376 3. At no time shall equipment noise from any facility exceed an exterior noise level of 50

377 dBA at the facility's property line if the facility is located in a business or commercial zone

378 that permits those uses, provided, however, that for any such facility located within 500

379 feet of any property zoned residential or improved with a residential use, such

380 equipment noise shall at no time be audible at the property line of any such residential

381 property. For any facility located within a residential zone, such equipment noise shall at

382 no time be audible at the property line of any residentially improved or residential zoned

383 property.

384 4. Any equipment, including but not limited to air conditioning units, that may emit noise

385 that would be audible from beyond three feet from the facility in the case of a facility

386 located in the right-of-way, or in the case of other facilities the facility's property line,

387 shall be enclosed or equipped with noise attenuation devices to the extent necessary to

388 ensure compliance with applicable noise limitations under the Mill Valley Municipal

389 Code.

390 J. Security. Each wireless telecommunications facility and wireless telecommunications

391 collocation facility shall be designed to be resistant to, and minimize opportunities for, unauthorized

392 access, climbing, vandalism, graffiti and other conditions that would result in hazardous situations,

393 visual blight, or attractive nuisances. The reviewing authority may require the provision of warning

394 signs, fencing, anti-climbing devices, or other techniques to prevent unauthorized access and

395 vandalism when, because of their location or accessibility, a facility has the potential to become an

396 attractive nuisance.

397 K. Modification. At the time of modification of a wireless telecommunications facility, existing

398 equipment shall, to the extent feasible, be replaced with equipment that reduces visual, noise, and

399 other impacts, including, but not limited to, undergrounding the equipment and replacing larger,

400 more visually intrusive facilities with smaller, less visually intrusive facilities.

401 20. 73.080 Additional Design and Development Standards for Facilities Outside the Public Right402

of-Way

403 A. Basic Requirements. Facilities located outside the public right-of-way are subject to the

404 design and development standards set forth in this section in addition to all design and

405 development standards that apply to all facilities.

406 B. No parking interference. In no event shall the installation of facilities replace or interfere

407 with parking spaces in such a way as to reduce the total number of parki ng spaces below the

408 number that is required.

409 C. Roof-mounted facilities. Roof-mounted facilities shall be designed and constructed to be

410 fully concealed or screened in a manner compatible with the existing architecture of the building the

411 facility is mounted to in color, texture, and type of material. Screening shall not increase the bulk of

412 the structure nor alter the character of the structure.

Exhibit A, Page 13 

413 D. Facilities mounted to a telecommunications tower. Facilities mounted to a

414 telecommunications tower shall be located in close proximity to existing above-ground utilities, such

415 as electrical towers or utility poles (which are not scheduled for removal or under grounding for at

416 least 18 months after the date of application), light poles, trees of comparable heights, and in areas

417 where they will not detract from the appearance of the City.

418 1. Facilities mounted to a telecommunications tower, including, but not limited to, the

419 attached antennas, shall be designed to be the minimum functional height and width

420 required to adequately support the proposed facility and meet FCC requirements. The

421 applicant shall provide documentation satisfactory to the zoning administrator

422 establishing compliance with this paragraph. In any event, facilities mounted to a

423 telecommunications tower shall not exceed the applicable height limit for structures in

424 the applicable zoning district.

425 2. Aside from the antenna itself, no additional equipment may be visible. All cables,

426 including, but not limited to, electrical and utility cables, shall be run within the interior

427 of the telecommunications tower and shall be camouflaged or hidden to the fullest

428 extent feasible without jeopardizing the physical integrity of the tower.

429 3. Monopole installations shall be situated so as to utilize existing natural or man-made

430 features including topography, vegetation, buildings, or other structures to provide the

431 greatest amount of visual screening.

432 4. All antenna components and accessory wireless equipment shall be treated with exterior

433 coatings of a color and texture to match the predominant visual background or existing

434 architectural elements so as to visually blend in with the surrounding development.

435 Subdued colors and non-reflective materials that blend with surrounding materials and

436 colors shall be used.

437 5. Monopoles shall be no greater in diameter or other cross-sectional dimensions than is

438 necessary for the proper functioning of the facility.

439 6. If a faux tree is proposed for the monopole installation, it shall be of a type of tree

440 compatible with those existing in the immediate areas of the installation. If no trees

441 exist within the immediate areas, the applicant shall create a landscape setting that

442 integrates the faux tree with added species of a similar height and type. Additional

443 camouflage of the faux tree may be required depending on the type and design of faux

444 tree proposed.

445 E. Accessory equipment. All accessory equipment associated with the operation of any

446 wireless telecommunications facility shall be fully screened or camouflaged, and located in a

447 manner to minimize their visibility to the greatest extent possible utilizing the following methods for

448 the type of installation:

1. Accessory equipment for roof-mounted facilities shall be installed inside the building to

which it is mounted or underground, if feasible. If not feasible, such accessory

equipment may be located on the roof of the building that the facility is mounted on,

provided that both the equipment and screening materials are painted the color of the

building, roof, or surroundings. All screening materials for roof-mounted facilities shall be

of a quality and design that is architecturally integrated with the design of the building or

structure.

2. Accessory equipment for facilities mounted to a telecommunications tower shall be

visually screened by locating the equipment either within a nearby building, in an

underground vault (with the exception of required electrical panels) or in another type of

enclosed structure, which shall comply with the development and design standards of

the zoning district in which the accessory equipment is located. Such enclosed structure

shall be architecturally treated and adequately screened from view by landscape

plantings, decorative walls, fencing or other appropriate means, selected so that the

resulting screening will be visually integrated with the architecture and landscaping of

the surroundings.

465 20.73.090 Additional Design and Development Standards for Facilities in the Public Right-of466

Way

467 A. Basic Requirements. Facilities located in the public right-of-way are subject to the design

468 and development standards set forth in this section in addition to all design and development

469 standards that apply to all facilities.

470 B. Right-of-way authority. An encroachment permit must be obtained for any work in the

471 public righr of way. Only applicants authorized to enter the public right-of-way pursuant to state or

472 federal law or a franchise or other agreement with the City shall be eligible for a permit to install or

473 modify a wireless telecommunications facility in the public right-of-way.

Antennas.

1. Utility poles. The maximum height of any antenna mounted to an existing utility pole

shall not exceed 24 inches above the height of an existing utility pole, nor shall any

portion of the antenna or equipment mounted on a pole be less than 18 feet above any

drivable road surface. All installations on utility poles shall fully comply with the

California Public Utilities Commission general orders, including, but not limited to,

General Ord er 95, as revised.

2. Street light poles. The maximum height of any antenna mounted to a street light pole

shall not exceed seven feet above the existing height of a street light pole in a location

with its closest adjacent district being a commercial zoning district and shall not exceed

three feet above the existing height of a street light pole in any other zoning district. Any

portion of the antenna or equipment mounted on such a pole shall be no less than 18

fpet above any drivable road surface.

Poles.

1. Only pole-mounted antennas shall be permitted in the right-of-way. All other

telecommunications towers are prohibited, and no new poles are permitted that are not

replacing an existing pole.

2. Pole height and width limitations:

(a) All poles shall be designed to be the minimum functional height and width

required to support the proposed antenna installation and meet FCC

requirements. Poles and antennas and similar structures shall be no greater in

diameter or other cross-sectional dimensions than is necessary for the proper

functioning of the facility.

(b) Notwithstanding the above, no facility shall be located on a pole that is less

than 26 feet in height and no facility shall exceed 35 feet in height, including,

but not limited to the pole and any antenna that protrudes above the pole.

(c) Pole mounted equipment shall not exceed six cubic feet in dimension.

3. If an applicant proposes to replace a pole in order to accommodate the facility, the pole

shall match the appearance of the original pole to the extent feasible, unless another

design better accomplishes the objectives of this section. Such replacement pole shall

not exceed the height of the pole it is replacing by more than seven feet.

4. If an exception is granted for placement of new poles in the right-of-way, new poles shall

be designed to resemble existing poles in the right-of-way, including size, height, color,

materials and style, with the exception of any existing pole designs that are scheduled to

be removed and not replaced, unless another design better accomplishes the objectives

of this section. Such new poles that are not replacement poles shall be located no closer

than 90 feet to an existing pole.

511 E. Space occupied. Facilities shall be designed to occupy the least amount of space in the right512

of-way that is technically feasible.

F. Location.

1. Each component part of a facility shall be located so as not to cause any physical or visual

obstruction to pedestrian or vehicular traffic, inconvenience to the public's use of the

right-of-way, or safety hazards to pedestrians and motorists.

2. A facility shall not be located within any portion of the public right-of-way interfering

with access to fire hydrants, fire stations, fire escapes, water valves, underground vaults,

valve housing structures, or any other vital public health and safety facility.

Exhibit A, Page 16 

520 3. Facilities mounted to a telecommunications tower, above-ground accessory equipment,

521 or walls, fences, landscaping or other screening methods shall be setback a minimum of

522 18 inches from the front of a curb.

523 4. Each pole mounted wireless telecommunications facility must be separated by at least

524 1,500 feet.

525 5. All cables, including, but not limited to, electrical and utility cables, between the pole and

526 any accessory equipment shall be placed underground, if feasible.

527 6. All new wires needed to service the wireless telecommunications facility must be

528 installed within the width of the existing utility pole so as to not exceed the diameter and

529 height of the existing utility pole.

530 G. Americans with Disabilities Act Compliance. All facilities shall be built in compliance with

531 the Americans with Disabilities Act (ADA).

532 H. Accessory equipment. With the exception of the electric meter, which shall be pole533

mounted to the extent feasible, all accessory equipment shall be located underground to the extent

534 feasible. When above-ground is the only feasible location for a particular type of accessory

535 equipment and when such accessory equipment cannot be pole-mounted, such accessory

536 equipment shall be enclosed within a structure, and shall not exceed a height of five feet and a total

537 footprint of 15 square feet, and shall be screened and camouflaged to the fullest extent possible,

538 including the use of landscaping or alternate screening. Required electrical meter cabinets shall be

539 adequately screened and camouflaged.

540 I. Documentation. The· applicant shall provide documentation satisfactory to the zoning

541 administrator establishing compliance with this section 20.73.090.

542 20.73.100 Conditions of Approval for All Facilities

543 A. In addition to compliance with the requirements of this chapter, upon approval all facilities

544 shall be subject to each of the following conditions of approval, as well as any modification of these

545 conditions or additional conditions of approval deemed necessary by the reviewing authority:

546 1. Before the permittee submits any application for a building permit or other permits

547 required by the Mill Valley Municipal Code, the permittee must incorporate the wireless

548 telecommunication facility permit granted under this chapter, all conditions associated

549 with the wireless telecommunications facility permit and the approved plans and any

550 photo simulations (the "Approved Plans") into the project plans. The permittee must

551 construct, install and operate the wireless telecommunications facility in strict

552 compliance with the Approved Plans. The permittee shall submit an as built drawing

553 within 90 days after instaHation of the facility.

554 2. Where feasible, as new technology becomes available, the permittee shall:

place above-ground wireless telecommunications facilities below ground,

including, but not limited to, accessory equipment that has been mounted to

a telecommunications tower or mounted on the ground; and

replace larger, more visually intrusive facilities with smaller, less visually

intrusive facilities, after receiving all necessary permits and approvals required

pursuant to the Mill Valley Municipal Code.

3. The permittee shall submit and maintain current at all times basic contact and site

information on a form to be supplied by the City. The permittee shall notify the City of

any changes to the information submitted within seven days of any change, including

change of the name or legal status of the owner or operator. This information shall

include, but is not limited to, the following:

Identity, including the name, address and 24-hour local or toll free contact

phone number of the permittee, the owner, the operator, and the agent or

person responsible for the maintenance of the facility.

The legal status of the owner of the wireless telecommunications facility,

including official identification numbers and FCC certification.

Name, address, and telephone number of the property owner if different than

the permittee.

4. The permittee shall not place any facilities that will deny access to, or otherwise interfere

with, any public utility, easement, or right-of-way located on the site. The permittee

shall allow the City reasonable access to, and maintenance of, all utilities and existing

public improvements within or adjacent to the site, including, but not limited to,

pavement, trees, public utilities, lighting and public signage.

5. At all times, all required notices and signs shall be posted on the site as required by the

FCC and California Public Utilities Commission, and as approved by the City. The location

and dimensions of a sign bearing the emergency contact name and telephone number

shall be posted pursuant to the approved plans.

6. At all times, the permittee shall ensure that the facility complies with the most current

regulatory and operational standards including, but not limited to, radio frequency

emissions standards adopted by the FCC and antenna height standards adopted by the

Federal Aviation Administration.

7. If the zoning administrator determines there is good cause to believe that the facility

may emit radio frequency emissions that are likely to exceed FCC standards, the zoning

administrator may require the permittee to submit a technically sufficient written report

certified by a qualified radio frequency emissions engineer, certifying that the facility is in

compliance with such FCC standards.

Exhibit A, Page 18 

8. Permittee shall pay for and provide a performance bond, which shall be in effect until the

facilities are fully and completely removed and the site reasonably returned to its original

condition, to cover permittee's obligations under these conditions of approval and the

Mill Valley Municipal Code. The bond coverage shall include, but not be limited to,

removal of the facility, maintenance obligations and landscaping obligations. The

amount of the performance bond shall be set by the zoning administrator in an amount

rationally related to the obligations covered by the bond and shall be specified in the

conditions of approval.

9. Permittee shall defend, indemnify, protect and hold harmless the City, its elected and

appointed council members, boards, commissions, officers, officials, agents, consultants,

employees, and volunteers from and against any and all claims, actions, or proceeding

against the City and its elected and appointed council members, boards, commissions,

officers, officials, agents, consultants, employees and volunteers to attack, set aside, void

or annul, an approval of the City, Planning Commission or City council concerning this

permit and the project. Such indemnification shall include damages, judgments,

settlements, penalties, fines, defensive costs or expenses, including, but not limited to,

interest, attorneys' fees and expert witness fees, or liability of any kind related to or

arising from such claim, action, or proceeding. The City shall promptly notify the

permittee of any claim, action, or proceeding. Nothing contained herein shall prohibit

City from participating in a defense of any claim, action or proceeding. The City shall have

the option of coordinating the defense, including, but not limited to, choosing counsel

for the defense at permittee's expense.

10. All conditions of approval shall be binding as to the applicant and all successors in

interest to permittee.

11. A condition setting forth the permit expiration date in accordance with section 20.73.200

shall be included in the conditions of approval.

20.73.110 Additional Conditions of Approval for Facilities in the Public Right-of-Way

618 A. In addition to compliance with the requirements of this chapter, upon approval all facilities

619 in the public right-of-way shall be subject to each of the conditions of approval set forth in section

620 20. 73.100, each of the following conditions of approval, and any modification of these conditions or

621 additional conditions of approval deemed necessary by the reviewing authority:

622 1. Th e wire less telecommunications facility shall be subject to such conditions, changes or

623 limitations as are from time to time deemed necessary by the City engineer for the

624 purpose of: (a) protecting the public health, safety, and welfare, (b) preventing

625 interference with pedestrian and vehicular traffic, and (c) preventing damage to the

626 public right-of-way or any property adjacent to it. The City may modify the permit to

627 reflect such conditions, changes or limitations by following the same notice and public

628 hearing procedures as are applicable to the grant of a wireless telecommunications

629 facility perm it for similarly located fa ci lities, except the permittee shall be given notice by

Exhibit A, Page 19 

personal service or by registered or certified mail at the last address provided to the City

by the permittee.

2. The permittee shall not move, alter, temporarily relocate, change, or interfere with any

existing structure, improvement or property without the prior consent of the owner of

that structure, improvement or property. No structure, improvement or property owned

by the City shall be moved to accommodate a wireless telecommunications facility unless

the City determines that such movement will not adversely affect the City or any

surrounding businesses or residents, and the permittee pays all costs and expenses

related to the relocation of the City's structure, improvement or property. Prior to

commencement of any work pursuant to an encroachment permit issued for any facility

within the public right-of-way, the permittee shall provide the City with documentation

establishing to the City's satisfaction that the permittee has the legal right to use or

interfere with any other structure, improvement or property within the public right-ofway

to be affected by applicant's facilities.

3. The permittee shall assume full liability for damage or injury caused to any property or

person by the facility.

4. The permittee shall repair, at its sole cost and expense, any damage including, but not

limited to subsidence, cracking, erosion, collapse, weakening, or loss of lateral support to

City streets, sidewalks, walks, curbs, gutters, trees, parkways, street lights, traffic signals,

improvements of any kind or nature, or utility lines and systems, underground utility line

and systems, or sewer systems and sewer lines that result from any activities performed

in connection with the installation or maintenance of a wireless telecommunications

facility in the public right-of-way. The permittee shall restore such areas, structures and

systems to the condition in which they existed prior to the installation or maintenance

that necessitated the repairs. In the event the permittee fails to complete such repair

within the number of days stated on a written notice by the zoning administrator, the

zoning administrator shall cause such repair to be completed at permittee's sole cost and

expense.

5. Prior to issuance of a building permit, the applicant shall obtain the zoning

administrator's approval of a tree protection plan prepared by a certified arborist if the

installation of the wireless telecommunication facility will be located within the canopy

of a street tree, or a protected tree on private property, or within a ten-foot radius of the

base of such a tree. Depending on site specific criteria (e.g., location of tree, size, and

type of tree, etc.), a radius greater than ten feet may be required by the zoning

administrator.

6. Should any utility company offer electrical service that does not require the use of a

meter cabinet, the permittee shall at its sole cost and expense remove the meter cabinet

and any related foundation within 30 days of such service being offered and reasonably

restore the area to its prior condition.

Exhibit A, Page 20 

7. The permittee shall modify, remove, or relocate its facility, or portion thereof, without

cost or expense to City, if and when made necessary by:

a) Any public improvement project, including, but not limited to, the construction,

maintenance, or operation of any underground or aboveground facilities including

but not limited to sewers, storm drains, conduits, gas, water, electric or other utility

systems, or pipes owned by City or any other public agency;

b) Any abandonment of any street, sidewalk, or other public facility;

c) Any change of grade, alignment or width of any street, sidewalk or other public

facility; or

d) A determination by the zoning administrator that the wireless telecommunications

facility has become incompatible with public health, safety or welfare or the public's

use of the public right-of-way.

8. Any modification, removal, or relocation of the facility shall be completed within 90 days

of written notification by City unless exigencies dictate a shorter period for removal or

relocation. Modification or relocation of the facility shall require submittal, review and

approval of a permit amendment pursuant to the Mill Valley Municipal Code. The

permittee shall be entitled, on permittee's election, to either a pro-rata refund of fees

paid for the original permit or to a new permit, without additional fee, at a location as

close to the original location as the standards set forth in the Mill Valley Municipal Code

allow. In the event the facility is not modified, removed, or relo~ated within said period

of time, the City may cause the same to be done at the sole cost and expense of

permittee. Further, due to exigent circumstances as provided in the Mill Valley Municipal

Code, the City may modify, remove, or relocate wireless telecommunications facilities

without prior notice to permittee provided permittee is notified within a reasonable

period thereafter.

694 20.73.120 Findings

695 A. Where a wireless telecommunication facility requires a conditional use permit under this

696 chapter, the reviewing authority shall not approve any application unless, in addition to the findings

697 generally applicable to all conditional use permits, all of the following additional findings are made:

698 1. The proposed facility complies with all applicable provisions of this chapter.

699 2. The proposed facility has been designed and located to achieve compatibility with the

700 community to the maximum extent reasonably feasible.

701 3. The applicant has submitted a statement of its willingness to allow other carriers to

702 collocate on the proposed wireless telecommunications facility wherever technically and

703 economically feasible and where collocation would not harm community compatibility.

Exhibit A, Page 21 

704 4. Noise generated by equipment will not be excessive, annoying nor be detrimental to the

705 public health, safety, and welfare and will not exceed the standards set forth in this

706 chapter.

707 B. In addition to the findings in paragraph (A) above, approval of a wireless telecommunications

708 facility permit for a facility that will be located in the public right-of-way may be granted only if the

709 following findings are made by the reviewing authority:

710 1. The applicant has provided substantial written evidence supporting the applicant's claim

711 that it has the right to enter the public right-of-way pursuant to state or federal law, or

712 the applicant has entered into a franchise or other agreement with the City permitting

713 them to use the public right-of-way.

714 2. The applicant has demonstrated that the facility will not interfere with the use of the

715 public right-of-way, existing subterranean infrastructure, or the City's plans for

716 modification or use of such location and infrastructure.

717 20.73.130 Exceptions

718 A. Exceptions pertaining to any prov1s1on of this chapter, including, but not limited to,

719 exceptions from findings that would otherwise justify denial, may be granted by the reviewing

720 authority if the reviewing authority makes the finding that:

721 1. Denial of the facility as proposed would violate federal law, state law, or both; or

722 2. A provision of this chapter, as applied to applicant, would deprive applicant of its rights

723 under federal law, state law, or both.

724 B. An applicant may only request an exception at the time of applying for a wireless

725 telecommunications facility permit. The request must include both the specific provision(s) of this

726 chapter from which the exception is sought and the basis of the request. Any request for an

727 exception after the City has deemed an application complete shall be treated as a new application.

728 C. Notwithstanding any other provision of this chapter, a conditional use permit shall be

729 required for a facility when an exception is requested.

730 D. The applicant shall have the burden of proving that denial of the facility as proposed would

731 violate federal law, state law, or both, or that the provisions of this chapter, as applied to applicant,

732 would deprive applicant of its rights under federal law, state law, or both, using the evidentiary

733 standards required by that law at issue. The City shall have the right to hire an independent

734 consultant, at the applicant's expense, to evaluate the issues raised by the exception request and

735 shall have the right to submit rebuttal evidence to refute the applicant's claim.

Exhibit A, Page 22 

736 20.73.140 Wireless Telecommunications Facilities Covered under Section 6409(a) of the Middle

737 Class Tax Relief and Job Creation Act of 2012

738 A. Purpose. Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L.

739 112-96, codified in 47 U.S.C. § 1455(a), generally requires that State and local governments "may

740 not deny, and shall approve" requests to collocate, remove or replace transmission equipment at an

741 existing tower or base station. Federal Communication Commission regulations interpret this

742 statute and create procedural rules for local review, which generally preempt certain subjective

743 land-use regulations, limit permit application content requirements and provide the applicant with a

744 potential "deemed granted" remedy when the State or local government fails to approve or deny

745 the request within sixty (60) days after submittal (accounting for any tolling periods). Moreover,

746 whereas Section 704 of the Telecommunications Act of 1996, Pub. L. 104-104, codified in 47 U.S.C. §

747 332, applies to only "personal wireless service facilities" (e.g., cellular telephone towers and

748 equipment), Section 6409(a) applies to all "wireless" facilities licensed or authorized by the FCC

749 (e.g., cellular, Wi-Fi, satellite, microwave backhaul, etc.).

750 The overlap between wireless deployments covered under Section 6409(a) and other wireless

751 deployments, combined with the different substantive and procedural rules applicable to such

752 deployments, creates a potential for confusion that harms the' public interest in both efficient

753 wireless facilities deployment and carefully planned community development in accordance with

754 local values. A separate permit application and review process specifically designed for compliance

755 with Section 6409(a) contained in a section devoted to Section 6409(a) will mitigate such potential

756 confusion, streamline local review and preserve the City's land-use authority to maximum extent

757 possible.

758 B. Applicability. This Section applies to all collocations or modifications to an existing wireless

759 tower or base station submitted with a written request for approval pursuant to Section 6409(a).

760 C. Approval Required. Any request to collocate, replace or remove transmission equipment at

761 an existing wireless tower or base station submitted with a written request for a 6409(a) approval

762 shall be subject to the zoning administrator's approval, conditional approval or denial without

763 prejudice pursuant to the standards and procedures contained in this chapter.

764 D. Other Regulatory Approvals. No collocation or modification approved under any section

765 6409(a) approval may occur unless the applicant also obtains all other applicable permits or

766 regulatory approvals from the City and state or federal agencies. Furthermore, any section 6409(a)

767 approval granted under this chapter shall remain subject to any and all lawful conditions or

768 requirements associated with such other permits or regulatory approvals from the City and state or

769 federal agencies.

770 E. Application Requirement. The City shall not approve any wireless facility subject to this

771 chapter except upon a duly filed application consistent with this Section and any other written rules

772 the City or the zoning administrator may establish from time to time. An application must include

773 the information required by Section 20.73.050 and the following additional information:

Exhibit A, Page 23 

774 1. A title report prepared within the six months prior to the application filing date in order

775 for the City verify the property owner's identity. If the applicant does not own the subject

776 property, the application must include a written authorization signed by the property

777 owner that empowers the applicant to file the application and perform all wireless

778 facility construction, installation, operation and maintenance to the extent described in

779 the application.

780 2. A written statement that explains in plain factual detail whether and why Section 6409(a)

781 and the related FCC regulations at 47 C.F.R. § 1.40001 et seq. require approval for the

782 specific project. A complete written narrative analysis will state the applicable standard

783 and all the facts that allow the City to conclude the standard has been met. Bare

784 conclusions not factually supported do not constitute a complete written analysis. As

785 part of this written statement the applicant must also include (i) whether and why the

786 support structure qualifies as an existing tower or existing base station; and (ii) whether

787 and why the proposed collocation or modification does not cause a substantial change in

788 height, width, excavation, equipment cabinets, concealment or permit compliance.

789 F. Procedures for a Duly Filed Application. The City shall not review any application unless

790 duly filed in accordance with this Section, as follows:

791 1. Pre-Submittal Conference. Before application submittal, applicants must schedule and

792 attend a pre-application meeting with the zoning administrator for all proposed

793 modifications submitted for approval pursuant to Section 6409(a). The pre-submittal

794 conference is intended to streamline the review process through informal discussion that

795 includes, without limitation, the appropriate project classification, including whether the

796 project qualifies for Section 6409(a); any latent issues in connection with the existing

797 tower or base station; potential concealment issues (if applicable); coordination with

798 other City departments responsible for application review; and application completeness

799 issues. To mitigate unnecessary delays due to application incompleteness, applicants are

800 encouraged (but not required) to bring any draft applications or other materials so that

801 City staff may provide informal feedback about whether such applications or other

802 materials may be incomplete or unacceptable. The zoning administrator may, in the

803 zoning administrator's discretion, grant a written exemption to the submittal

804 appointment under Section 20.73.140(F)(2) or for a specific requirement for a complete

805 application to any applicant who (i) schedules, attends and fully participates in any pre806

submittal conference and (ii) shows to the zoning administrator's satisfaction that such

807 specific requirement duplicates information already provided in other materials to be

808 submitted or is otherwise unnecessary to the City's review under facts and circumstances

809 in that particular case. Any written exemption will be limited to the project discussed at

810 the pre-submittal conference and will not be extended to any other project.

811 2. Submittal Appointment. AI_I applications must be filed with the City at a pre-scheduled

812 appointment. Applicants may generally submit one application per appointment, but

813 may schedule successive appointments for multiple applications whenever feasible and

Exhibit A, Page 24 

not prejudicial to other applicants. Any application received without an appointment,

whether delivered in-person or through any other means, will not be considered duly

filed unless the applicant received a written exemption from the zoning administrator at

a pre-submittal conference.

3. Appointment Scheduling Procedures. For any event in the submittal process that requires

an appointment, applicants must submit a written request to the zoning administrator.

The zoning administrator shall endeavor to provide applicants with an appointment as

soon as reasonably feasible and within five business days after a written request is

received.

4. Applications Deemed Withdrawn. To promote efficient review and timely decisions, an

application will be automatically deemed withdrawn by the applicant when the applicant

fails to tender a substantive response to the City within 90 calendar days after the City

deems the application incomplete in a written notice to the applicant. The zoning

administrator may, in the zoning administrator's discretion, 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. Delays due to

circumstances outside the applicant's reasonable control will be considered good cause

to grant the extension.

5. Departmental Forms, Rules and Other Regulations. The City council authorizes the zoning

administrator to develop and publish permit application forms, checklists, informational

handouts and other related materials that the zoning administrator finds necessary,

appropriate or useful for processing requests for section 6409(a) approvals. Without

further authorization from the City council, the zoning administrator may from time-totime

update and alter any such permit application forms, checklists, informational

handouts and other related materials as the zoning administrator deems necessary,

appropriate or useful to respond to regulatory, technological or other changes related to

this chapter. The City council authorizes the zoning administrator to establish other

reasonable rules and regulations, which may include without limitation regular hours for

appointments with applicants, as the zoning administrator deems necessary or

appropriate to organize, document and manage the application intake process.

Exhibit A, Page 25 

845 G. Administrative Review; Decision Notices. The zoning administrator shall administratively

846 review an application for a section 6409(a) approval and act on such an application without prior

847 notice or a public hearing. Within five working days after the zoning administrator conditionally

848 approves or denies an application submitted for Section 6409(a) approval or before the FCC

849 timeframe for review expires (whichever occurs first), the zoning administrator shall send a written

850 notice to the applicant. In the event that the zoning administrator determines that an application

851 submitted for approval pursuant to Section 6409(a) does not qualify for approval, the zoning

852 administrator will send written notice to the applicant that includes the reasons to support the

853 review authority's decision and states that the application will be automatically denied without

854 prejudice on the 60th day after the date the application was filed unless the applicant withdraws the

855 application.

856 H. Required Findings for 6409(a) Approval. The zoning administrator may approve or

857 conditionally approve an application submitted for Section 6409(a) approval when the zoning

858 administrator finds that the proposed project:

859 1. Involves collocation, removal or replacement of transmission equipment on an existing

860 wireless tower or base station; and

861 2. Does not substantially change the physical dimensions of the existing wireless tower or

862 base station.

863 I. Criteria for Denial Without Prejudice. Notwithstanding any other provisions in this chapter,

864 and consistent with all applicable federal laws and regulations, the zoning administrator may deny

865 without prejudice an application submitted for approval pursuant to Section 6409(a) when it finds

866 that the proposed project:

867 1. Does not satisfy the criteria for approval;

868 2. Violates any legally enforceable standard or permit condition reasonably related to

869 public health and safety then in effect; or

870 3. Involves the replacement of the entire support structure.

871 J. Conditional 6409(a) Approvals. Subject to any applicable limitations in federal or state law,

872 nothing in this chapter is intended to limit the City's authority to conditionally approve an

873 application for a section 6409(a) approval to protect and promote the public health, safety and

874 welfare.

875 K. Appeals. Notwithstanding any provision of the Mill Valley Municipal Code to the contrary,

876 including but not limited to section , an applicant may appeal a decision by the zoning administrator

877 to deny without prejudice a Section 6409(a) application. The appeal must be filed within 10 days

878 from the zoning administrator's decision. The appeal must state in plain terms the grounds for

879 reversal and the facts that support those grounds. The City manager shall serve as the appellate

880 authority for all appeals of all actions of the zoning administrator taken pursuant to this section. The

Exhibit A, Page 26 

881 City shall provide notice for an administrative hearing by the City manager. The City manager shall

882 limit its review to whether the project should be approved or denied in accordance with the

883 provisions in paragraphs (H) and {I) of this section. The decision of the City manager shall be final

884 and not subject to any further administrative appeals.

885 L. Standard Conditions of Approval. In addition to all other conditions adopted by the zoning

886 administrator, all Section 6409(a) approvals, whether approved by the zoning administrator or

887 deemed approved by the operation of law, shall be automatically subject to the following conditions

888 in this Section; provided, however, that the zoning administrator shall have discretion to modify or

889 amend these conditions on a case-by-case basis as may be necessary or appropriate under the

890 circumstances:

891 1. Approved Plans. Before the permittee submits any application for a building permit or

892 other permits required by the Mill Valley Municipal Code, the permittee must

893 incorporate the wireless telecommunications facility permit granted under this section,

894 all conditions associated with the wireless telecommunications facility permit and the

895 approved plans and any photo simulations (the "Approved Plans") into the project plans.

896 The permittee must construct, install and operate the wireless telecommunications

897 facility in strict compliance with the Approved Plans. The permittee shall submit an as

898 built drawing within 90 days after installation of the facility.

899 2. Permit Term. The City's grant or grant by operation of law of a Section 6409(a) approval

900 constitutes a federally-mandated modification to the underlying permit or other prior

901 regulatory authorization for the subject tower or base station. The City's grant or grant

902 by operation of law of a section 6409(a) approval will not extend the permit term, if any,

903 for any conditional use permit, or other underlying prior regulatory authorization.

904 Accordingly, the term for a section 6409(a) approval shall be coterminous with the

905 underlying permit or other prior regulatory authorization for the subject tower or base

906 station.

907 3. Accelerated Permit Terms Due to Invalidation. In the event that any court of competent

908 jurisdiction invalidates any portion of Section 6409(a) or any FCC rule that interprets

909 Section 6409(a) such that federal law would not mandate approval for any Section

910 6409(a) approval, such 6409(a) approvals shall automatically expire one year from the

911 effective date of the judicial order, unless the decision would not authorize accelerated

912 termination of previously approved section 6409(a) approvals or the zoning

913 administrator grants an extension upon written request from the permittee that shows

914 good cause for the extension, which includes without limitation extreme financial

915 hardship. Notwithstanding anything in the previous sentence to the contrary, the zoning

916 administrator may not grant a permanent exemption or indefinite extension. A permittee

917 shall not be required to remove its improvements approved under the invalidated

918 section 6409(a) approval when it has submitted an application for a conditional use

919 permit for those improvements before the one-year period ends.

Exhibit A, Page 27 

4. No Waiver of Standing. The City's grant or grant by operation of law of a Section 6409(a)

approval does not waive, and shall not be construed to waive, any standing by the City to

challenge Section 6409(a), any FCC rules that interpret Section 6409(a) or any section

6409(a) approval.

5. Build-out Period. The section 6409(a) approval will automatically expire one year from

the issuance date unless the permittee obtains all other permits and approvals required

to install, construct and operate the approved wireless facility, which includes without

limitation any permits or approvals required by the any federal, state or local public

agencies with jurisdiction over the subject property, the wireless facility or its use. The

zoning administrator may grant one written extension to a date certain when the

permittee shows good cause to extend the limitations period in a written request for an

extension submitted at least 30 days prior to the automatic expiration date in this

condition. Any further extensions may be granted by the planning commission.

6. Maintenance Obligations; Vandalism. The permittee shall keep the site, which includes

without limitation any and all improvements, equipment, structures, access routes,

fences and landscape features, in a neat, clean and safe condition in accordance with the

Approved Plans and all conditions in this section 6409(a) approval. The permittee shall

keep the site area free from all litter and debris at all times. The permittee, at no cost to

the City, shall remove and remediate any graffiti or other vandalism at the site within 48

hours after the permittee receives notice or otherwise becomes aware that such graffiti

or other vandalism occurred.

7. Compliance with Laws. The permittee shall maintain compliance at all times with all

federal, state and local statutes, regulations, orders or other rules that carry the force of

law ("Laws") applicable to the permittee, the subject property, the wireless facility or any

use or activities in connection with the use authorized in this section 6409(a) approval.

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.

8. Adverse Impacts on Other Properties. The permittee shall use all reasonable efforts to

avoid any and all undue or unnecessary adverse impacts on nearby properties that may

arise from the permittee's construction, installation, operation, modification,

maintenance, repair, removal or other activities at the site. The permittee shall not

perform or cause others to perform any construction, installation, operation,

modification, maintenance, repair, removal or other work that involves heavy equipment

or machines on any day and at any time prohibited under the Mill Valley Municipal Code.

The restricted work hours in this condition will not prohibit any work required to prevent

an actual, immediate harm to property or persons, or any work during an emergency

declared by the City. The zoning administrator may issue a stop work order for any work

that violates this condition.

Exhibit A, Page 28 

960

961

962

963

964

965

966

967

968

969

970

971

972

973

974

975

976

977

978

979

980

981

982

983

984

985

986

987

988

989

990

991

992

993

994

995

996

997

998

999

9. Noise Complaints. The permittee shall conduct all activities on the site in compliance with

the noise standards in the Mill Valley Municipal Code. In the event that any person files a

noise complaint and the City verifies that such complaint is valid, the permittee must

remedy the violation within 10 days after notice from the City, which may include a

demonstration that the permittee has amended its operational guidelines in situations

where the violation arises from the permittee's personnel rather than the permittee's

equipment.

10. Inspections; Emergencies. The permittee expressly acknowledges and agrees that the City

or its designee may enter onto the site and inspect the improvements and equipment

upon reasonable prior notice to the permittee; provided, however, that the City or its

designee 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 will be permitted to supervise the City or its designee while such

inspection or emergency access occurs.

11. Contact Information. The permittee shall furnish the City with accurate and up-to-date

contact information for a person responsible for the wireless facility, which includes

without limitation such person's full name, title, direct telephone number, facsimile

number, mailing address and email address. The permittee shall keep such contact

information up-to-date at all times.

12. Indemnification. The permittee and, if applicable, the property owner upon which the

wireless facility is installed shall defend, indemnify and hold harmless the City, its agents,

officers, officials, employees and volunteers from any and all (1) damages, liabilities,

injuries, losses, costs and expenses and from any and all claims, demands, law suits, writs

and other actions or proceedings ("Claims") brought against the City or its agents,

officers, officials, employees or volunteers to challenge, attack, seek to modify, set aside,

void or annul the City's approval of this section 6409(a) approval, and (2) other Claims

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 section 6409{a) approval or the wireless facility. In the event the City becomes

aware any Claims, the City will use best efforts to promptly notify the permittee and the

private property owner 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 or permittee (as applicable) shall promptly reimburse

City for any costs and expenses directly and necessarily incurred by the City in the course

of the defense. 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 section 6409(a) approval, and that such

Exhibit A, Page 29 

1000 indemnification obligations will survive the expiration or revocation of this section

1001 6409{a) approval.

1002 13. Performance Bond. Before the City issues any construction permit in connection with the

1003 wireless facility, the permittee shall post a performance bond from a surety and in a form

1004 acceptable to the City manager in an amount equal to or greater than a written estimate

1005 from a qualified contractor with experience in wireless facilities removal. The written

1006 estimate must include the cost to remove all equipment and other improvements, which

1007 includes without limitation all antennas, radios, batteries, generators, utilities, cabinets,

1008 mounts, brackets, hardware, cables, wires, conduits, structures, shelters, towers, poles,

1009 footings and foundations, whether above ground or below ground, constructed or

1010 installed in connection with the wireless facility. In establishing or adjusting the bond

1011 amount required under this condition, and in accordance with California Government

1012 Code § 65964(a), the City manager shall take into consideration information provided by

1013 the permittee regarding the cost to remove the wireless facility.

1014 14. Record Retention. The permittee must maintain complete and accurate copies of all

1015 permits and other regulatory approvals issued in connection with the wireless facility,

1016 which includes without limitation this approval, the approved plans and photo

1017 simulations incorporated into this approval, all conditions associated with this approval

1018 and any ministerial permits or approvals issued in connection with this approval. In the

1019 event that the permittee does not maintain such records as required in this condition,

1020 any ambiguities or uncertainties that would be resolved through an inspection of the

1021 missing records will be construed against the permittee.

1022 15. Compliance Obligations. An applicant or permittee will not be relieved of its obligation

1023 to comply with every applicable provision in the Mill Valley Municipal Code, any permit,

1024 any permit condition or any applicable law or regulation by reason of any failure by the

1025 City to timely notice, prompt or enforce compliance by the applicant or permittee.

1026 20.73.150 Wireless Telecommunications Collocation Facilities Covered under California

1027 Government Code Section 65850.6

1028 A. Purpose. The purpose of this section is to comply with an application for a Wireless

1029 Telecommunications Collocation Facility under California Government Code Section 65850.6, for

1030 which a 6509(a) approval is not being requested. This section provides the requirements, standards

1031 and regulations for a wireless telecommunications collocation facility for which subsequent

1032 collocation is a permitted use pursuant to California law. Only those facilities that fully comply with

1033 the eligibility requirements set forth in California Government Code Section 65850.6, or its

1034 successor provision, and which strictly adhere to the requirements and regulations set forth in this

1035 section shall qualify as a wireless telecommunications collocation facility.

1036 B. Definitions. For the purposes of this section, the following terms are defined as follows:

Exhibit A, Page 30 

1037

1038

1039

1040

1041

1042

1043

1044

1. "Collocation Facility" means the placement or installation of wireless facilities, including

antennas, and related equipment, on, or immediately adjacent to, a wireless

telecommunications collocation facility.

2. "Wireless Telecommunications Facility" means equipment and network components

such as towers, utility poles, transmitters, base stations, and emergency power systems

that are integral to providing wireless telecommunications services.

3. "Wireless Telecommunications Collocation Facility" means a wireless

telecommunications facility that includes collocation facilities.

1045 C. Procedures. An application for a Wireless Telecommunications Collocation Facility under

1046 California Government Code Section 65850.6 shall be processed in the same manner as an

1047 application for 6409(a) approval is processed, except that where the process requires justification

1048 for the 6409(a) approval, the applicant shall instead provide the justification for a Wireless

1049 Telecommunications Collocation Facility under California Government Code Section 65850.6.

1050 D. Requirements. All requirements, regulations, and standards set forth in this chapter for a

1051 wireless telecommunications facility shall apply to a wireless telecommunications collocation

1052 facility; provided, however, the following shall also apply to a wireless telecommunications

1053 collocation facility:

1054 1. The applicant for a wireless telecommunications collocation facility permit shall describe

1055 or depict:

1056

1057

1058

(a)

(b)

The wireless telecommunications collocation facility as it will be initially built;

and

All collocations at full build-out, including, but not limited to, all antennas,

1059 antenna support structures, and accessory equipment.

1060 2. Any collocation shall use screening methods substantially similar to those used on the

1061 existing wireless telecommunications facilities unless other optional screening methods

1062 are specified in the conditions of approval.

1063 3. A wireless telecommunications collocation facility permit shall not be approved unless an

1064 environmental impact report, negative declaration, or mitigated negative declaration

1065 was prepared and approved for the wireless telecommunications collocation facility.

1066 E. Permitted Use. Notwithstanding any other provision of this chapter, a subsequent

1067 collocation on a wireless telecommunications collocation facility shall be a permitted use only if all

1068 of the following requirements are satisfied:

1069 1. The wireless telecommunications collocation facility:

1070 (a) Was approved after January 1, 2007, by discretionary permit;

Exhibit A, Page 31 

1071

1072

1073

1074

1075

1076

1077

1078

(b)

(c)

Was approved subject to an environmental impact report, negative

declaration, or mitigated negative declaration; and

Otherwise complies with the requirements of California Government Code

Section 65850.6(b), or its successor provision, for addition of a collocation

facility to a wireless telecommunications collocation facility, including, but not

limited to, compliance with all performance and maintenance requirements,

regulations and standards in this chapter and the conditions of approval in the

wireless telecommunications collocation facility permit; and

1079 2. The collocations were specifically considered when the relevant environmental

1080 document was prepared for the wireless telecommunications collocation facility.

1081 3. Before collocation, the applicant seeking collocation shall obtain all other applicable non1082

discretionary permits, as required pursuant to the Mill Valley Municipal Code.

1083 F. New or Amended Permit. Except as otherwise provided above, approval of a new or

1084 amended permit shall be required when the facility is modified other than by collocation in

1085 accordance with this section, or the proposed collocation:

1086 1. Increases the height of the existing permitted telecommunications tower or otherwise

1087 changes the bulk, size, location, or any other physical attributes of the existing permitted

1088 wireless telecommunications collocation facility unless specifically permitted under the

1089 conditions of approval applicable to such wireless telecommunications collocation

1090 facility; or

1091 2. Adds any microwave dish or other antenna not expressly permitted to be included in a

1092 collocation facility by the conditions of approval.

1093 G. Appeals. Notwithstanding any provision of the Mill Valley Municipal Code to the contrary,

1094 including but not limited to Section 20.62.060, any applicant may appeal a decision by the zoning

1095 administrator. The appeal must be filed within 10 days from the zoning administrator's decision. The

1096 appeal must state in plain terms the grounds for reversal and the facts that support those grounds.

1097 The City manager shall serve as the appellate authority for all appeals of all actions of the zoning

1098 administrator taken pursuant to this section. The City shall provide notice for an administrative

1099 hearing by the City manager. The City manager shall limit its review to whether the project should

1100 be approved or denied in accordance with the provisions in this section. The decision of the City

1101 manager sh all be final and not subject to any further administrative appeals.

1102 20.73.160 Business License

1103 A permit issued pursuant to this chapter shall not be a substitute for any business license otherwise

1104 required under the Mill Valley Municipal Code.

Exhibit A, Page 32 

1105 20.73.170 Emergency Deployment

1106 In the event of a declared federal, state, or local emergency, or when otherwise warranted by

1107 conditions that the zoning administrator deems to constitute an emergency, the zoning

1108 administrator may approve the installation and operation of a temporary wireless

1109 telecommunications facility (e.g., a cell on wheels or "COW"), which is subject to such reasonable

1110 conditions that the zoning administrator deems necessary.

1111 20.73.180 Operation and Maintenance Standards

1112 A. All wireless telecommunications facilities must comply at all times with the following

1113 operation and maintenance standards. All necessary repairs and restoration shall be completed by

1114 the permittee, owner, or operator within 48 hours:

1115 1. After discovery of the need by the permittee, owner, operator or any designated

1116 maintenance agent; or

1117 2. After permittee, owner, operator, or any designated maintenance agent receives

1118 notification from a resident or the zoning administrator.

1119 B. All facilities, including, but not limited to, telecommunication towers, poles, accessory

1120 equipment, lighting, fences, walls, shields, cabinets, artificial foliage or camouflage, and the facility

1121 site shall be maintained in good condition, including ensuring the facilities are reasonably free of:

1122 1. General dirt and grease;

1123 2. Chipped, faded, peeling, and cracked paint;

1124 3. Rust and corrosion;

1125 4. Cracks, dents, and discoloration;

1126 5. Missing, discolored, or damaged artificial foliage or other camouflage;

1127 6. Graffiti, bills, stickers, advertisements, litter and debris;

1128 7. Broken and misshapen structural parts; and

1129 8. Any damage from any cause.

1130 C. All trees, foliage or other landscaping elements approved as part of the facility shall be

1131 maintained in good condition at all times, and the permittee, owner and operator of the facility shall

1132 be responsible for replacing any damaged, dead or decayed landscaping. No amendment to any

1133 approved landscaping plan may be made until it is submitted to and approved by the zoning

1134 administrator.

1135 D. The permittee shall replace its facilities, after obtaining all required permits, if maintenance

Exhibit A, Page 33 

1136 or repair is not sufficient to return the facility to the condition it was in at the time of installation.

1137 E. Each facility shall be operated and maintained at all times in compliance with applicable

1138 federal regulations, including FCC radio frequency emissions standards.

1139 F. Each facility shall be operated and maintained to comply at all times with the noise

1140 regulations of this chapter and shall be operated and maintained in a manner that will minimize

1141 noise impacts to surrounding residents. Except for emergency repairs, any testing and maintenance

1142 activities that will be audible beyond the property line shall only occur between the hours of 7:00

1143 a.m. and 5:00 p.m. on Monday through Friday, excluding holidays, unless alternative hours are

1144 approved by the zoning administrator. Backup generators, if permitted, shall only be operated

1145 during periods of power outages or for testing.

1146 G. If a flagpole is used for camouflaging a wireless telecommunications facility, flags shall be

1147 flown and shall be properly maintained at all times.

1148 H. Each owner or operator of a facility shall routinely inspect each site to ensure compliance

1149 with the standards set forth in this section and the conditions of approval.

1150 20.73.190 No Dangerous Conditions or Obstructions Allowed

1151 No person shall install, use or maintain any wireless telecommunications facility which in whole or in

1152 part rests upon, in or over any public sidewalk or parkway, when such installation, use or

1153 maintenance endangers or is reasonably likely to endanger the safety of persons or property, or

1154 when such site or location is used for public utility purposes, public transportation purposes or other

1155 governmental use, or when such facility unreasonably interferes with or impedes the flow of

1156 pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or

1157 egress from any residence or place of business, the use of poles, posts, traffic signs or signals,

1158 hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects

1159 permitted at or near said location.

1160 20.73.200 Permit Expiration

1161 A. A permit for any wireless telecommunications facility shall be valid for a period of 10 years,

1162 unless the Planning commission authorizes a longer period or pursuant to another provision of the

1163 Mill Valley Municipal Code the permit lapses sooner or is revoked. At the end of such period, the

1164 permit shall expire.

1165 B. A permittee may apply for extensions of its permit in increments of no more than ten years

1166 and no sooner than twelve months prior to expiration of the permit.

1167 C. If a permit has not expired at the time an application is made for an extension, the zoning

1168 administrator may administratively extend the term of the permit for subsequent ten-year terms

1169 upon verification of continued compliance with the findings and conditions of approval under which

1170 the application was originally approved, as well as any other applicable provisions of the Mill Valley

1171 Municipal Code that are in effect at th e tim e the permit extension is granted.

Exhibit A, Page 34 

1172 1. At the zoning administrator's discretion, additional studies and information may be

1173 required of the applicant.

1174 2. If the zoning administrator determines that the facility is nonconforming or that

1175 additional conditions of approval are necessary to bring the facility into compliance with

1176 the provisions of the Mill Valley Municipal Code that are then in effect at the time of

1177 permit expiration, the zoning administrator shall refer the extension request to the

1178 Planning commission.

1179 D. The request for an extension shall be decided by the Planning commission if the permit

1180 expired before the application is made for an extension or if the zoning administrator refers the

1181 matter to the Planning commission. After notice and a public hearing, the Planning commission may

1182 approve, conditionally approve, or deny the extension.

1183 20.73.210 Cessation of Use or Abandonment

1184 A. A wireless telecommunications facility is considered abandoned and shall be promptly

1185 removed as provided herein if it ceases to provide wireless telecommunications services for 90 or

1186 more consecutive days. If there are two or more users of a single facility, then this provision shall

1187 not become effective until all users cease using the facility.

1188 B. The operator of a facility shall notify the City in writing of its intent to abandon or cease use

1189 of a permitted site or a nonconforming site (including unpermitted sites) within ten days of ceasing

1190 or abandoning use. Notwithstanding any other provision herein, the operator of the facility shall

1191 provide written notice to the zoning administrator of any discontinuation of operations of 30 days

1192 or more.

1193

Exhibit A, Page 35 

1194 C. Failure to inform the zoning administrator of cessation or discontinuation of operations of

1195 any existing facility as required by this section shall constitute a violation of any approvals and be

1196 grounds for:

1197 1. Prosecution;

1198 2. Revocation or modification of the permit;

1199 3. Calling of any bond or other assurance required by this chapter or conditions of approval

1200 of the permit;

1201 4. Removal of the facilities by the City in accordance with the procedures established under

1202 the Mill Valley Municipal Code for abatement of a public nuisance at the owner's

1203 expense; and

1204 5. Any other remedies permitted under the Mill Valley Municipal Code.

1205 20. 73.220 Removal and Restoration, Permit Expiration, Revocation or Abandonment

1206 A. Permittee's removal obligation. Upon the expiration date of the permit, including any

1207 extensions, earlier termination or revocation of the permit or abandonment of the facility, the

1208 permittee, owner or operator shall remove its wireless telecommunications facility and restore the

1209 site to its natural condition except for retaining the landscaping improvements and any other

1210 improvements at the discretion of the City. Removal shall be in accordance with proper health and

1211 safety requirements and all ordinances, rules, and regulations of the City. The facility shall be

1212 removed from the property within 30 days, at no cost or expense to the City. If the facility is located

1213 on private property, the private property owner shall also be independently responsible for the

1214 expense of timely removal and restoration.

1215 B. Failure to remove. Failure of the permittee, owner, or operator to promptly remove its

1216 facility and restore the property within 30 days after expiration, earlier termination, or revocation of

1217 the permit, or abandonment of the facility, shall be a violation of the Mill Valley Municipal Code,

1218 and be grounds for:

1219 1. Prosecution;

1220 2. Calling of any bond or other assurance required by this chapter or conditions of approval

1221 of permit;

1222 3. Removal of the facilities by the City in accordance with the procedures established under

1223 the Mill Valley Municipal Code for abatement of a public nuisance at the owner's

1224 expense;or

1225 4. Any other remedies permitted under the Mill Valley Municipal Code.

1226

Exhibit A, Page 36 

1227 C. Summary removal. In the event the zoning administrator determines that the condition or

1228 placement of a wireless telecommunications facility located in the public right-of-way constitutes a

1229 dangerous condition, obstruction of the public right-of-way, or an imminent threat to public safety,

1230 or determines other exigent circumstances require immediate corrective action (collectively,

1231 "exigent circumstances"), the zoning administrator may cause the facility to be removed summarily

1232 and immediately without advance notice or a hearing. Written notice of the removal shall be served

1233 upon the person who owns the facility within five business days of removal and all property

1234 removed shall be preserved for the owner's pick-up as feasible. If the owner cannot be identified

1235 following reasonable effort or if the owner fails to pick-up the property within 60 days, the facility

1236 shall be treated as abandoned property.

1237 D. Removal of facilities by City. In the event the City removes a facility in accordance with

1238 nuisance abatement procedures or summary removal, any such removal shall be without any

1239 liability to the City for any damage to such facility that may result from reasonable efforts of

1240 removal. In addition to the procedures for recovering costs of nuisance abatement, the City may

1241 collect such costs from the performance bond posted and to the extent such costs exceed the

1242 amount of the performance bond, collect those excess costs in accordance with the Mill Valley

1243 Municipal Code. Unless otherwise provided herein, the City has no obligation to store such facility.

1244 Neither the permittee nor the owner nor operator shall have any claim if the City destroys any such

1245 facility not timely removed by the permittee, owner, or operator after notice, or removed by the

1246 City due to exigent circumstances.

1247 20.73.230 Effect on Other Ordinances

1248 Compliance with the provisions of this chapter shall not relieve a person from complying with any

1249 other applicable provision of the Mill Valley Municipal Code, including but not limited to obtaining

1250 any necessary encroachment or building permits. In the event of a conflict between any provision of

1251 this chapter and other provisions of the Mill Valley Municipal Code, this chapter shall control.

1252 20.73.240 Effect of State or Federal Law

1253 In the event that state or federal law prohibits discretionary permitting requirements for certain

1254 wireless telecommunications facilities, the permits required by this chapter for those facilities shall

1255 be deemed to be ministerial permits. For those facilities, in lieu of a conditional use permit, a

1256 ministerial permit shall be required prior to installation or modification of a wireless

1257 telecommunications facility and all provisions of this chapter shall be applicable to any such facility

1258 with the exception that the required permit shall be reviewed and administered as a ministerial

1259 permit by the zoning administrator rather than as a discretionary permit. Any conditions of

1260 approval set forth in this chapter or deemed necessary by the zoning administrator shall be imposed

1261 and administered as reasonable time, place and manner rules.

Exhibit A, Page 37 

concerns should be sent to

Danielle Staude

in a similar form to this

Dear Danielle Staude,

(your email)

(date)

Danielle Staude

Potential 4G/5G Wireless Telecommunications Facilities

We have recently become aware of the possible arrival of 4G & 5G wireless networks in our neighbourhood and we arc very concerned about the serious adverse health and environmental impacts caused by the microwave radiation emitted from these 4G and 5G Small Cell Towers  as proposed by AT&T and Verizon. We urge you to please prevent the instalment of these dangerous antennae in the City of Mill Valley.

Yours sincerely,

and attach this file  https://ntp.niehs.nih.gov/ntp/about_ntp/trpanel/2018/march/tr595peerdraft.pdf

NTP TECHNICAL REPORT ON THE TOXICOLOGY AND CARCINOGENESIS STUDIES IN Hsd:SPRAGUE DAWLEY SD RATS EXPOSED TO WHOLE-BODY RADIO FREQUENCY RADIATION AT A FREQUENCY (900 MHz) AND MODULATIONS (GSM AND CDMA) USED BY CELL PHONES

and https://ehtrust.org/wp-content/uploads/Belpoggi-Heart-and-Brain-Tumors-Base-Station-2018.pdf

Report of final results regarding brain and heart tumours in Sprague-Dawley rats exposed from prenatal life until natural death to mobile phone radio-frequency field representative of a 1.8 GHz GSM base station environmental emission

and finally

Researchers with the renowned Ramazzini Institute (RI) in Italy announce that a large-scale, lifetime study (PDF) of lab animals exposed to environmental levels of cell tower radiation developed cancer. The RI study also found increases in malignant brain (glial) tumors in female rats and precancerous conditions including Schwann cells hyperplasia in both male and female rats. A study of much higher levels of cell phone radio-frequency (RF) radiation, from the U.S. National Toxicology Program (NTP), has also reported finding the same unusual cancer called Schwannoma of the heart in male rats treated at the highest dose. 

The Ramazzini study exposed 2448 Sprague-Dawley rats from prenatal life until their natural death to "environmental" cell tower radiation for 19 hours per day (1.8 GHz GSM radio-frequency radiation (RFR) of 5, 25 and 50 V/m). RI exposures mimicked base station emissions like those from cell tower antennas, and exposure levels were far less than those used in the NTP studies of cell phone radiation. "All of the exposures used in the Ramazzini study were below the U.S. FCC limits. These are permissible exposures according the FCC. In other words, a person can legally be exposed to this level of radiation. Yet cancers occurred in these animals at these legally permitted levels. The Ramazzini findings are consistent with the NTP study demonstrating these effects are a reproducible finding," explained Ronald Melnick PhD, formerly the Senior NIH toxicologist who led the design of the NTP study on cell phone radiation now a Senior Science Advisor to Environmental Health Trust (EHT). "Governments need to strengthen regulations to protect the public from these harmful non-thermal exposures."