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HomeMy WebLinkAbout02 DESIGN GUIDELINES 10-01-01AGENDA REPORT NO. 2 10-01-01 · 800-05"' :~ MEETING DATE: OCTOBER 1, 2001 ~ TO: WILLIAM HUSTON, CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: ORDINANCE NO. 1232 AND DESIGN GUIDELINES FOR ABOVEGROUND UTILITY FACILITIES ON PUBLIC PROPERTIES AND IN THE PUBLIC RIGHT- OF-WAY SUMMARY Ordinance No. 1232 and the Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-way would establish regulations pertaining to the installation of aboveground utility facilities on public properties such as City parks, City Hall, commuter rail station, and in the public rights-of-way. RECOMMENDATION That the City Council: 1. Adopt Resolution No. 01-93 adopting the Final Negative Declaration as adequate for Ordinance No. 1232 and the Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right of Way. 2. Introduce and have first reading by title only of Ordinance No. 1232 approving an amendment to Part 6 Chapter 2 of Article 7 of the Tustin City Code related to Design Review for the installation of aboveground utility facilities on public properties and in the public right-of-way; and, 3. Adopt Resolution No. 01-95 amending Resolution No. 99-84 related to Design Guidelines for Aboveground Utility. Facilities on Public Properties and in the Public Right-of-Way. FISCAL IMPACT Costs associated with implementation and administration of the requirements of the ordinance and guidelines would be recovered through application fees identified in the general Fee Schedule in Resolution No. 99-53 adopted on July 19, 1999. BACKGROUND On December 6, 1999, the City Council adopted Ordinance No. 1213 and Design Guidelines to regulate power supply equipment for telecommunication facilities within the Aboveground Utility Facilities October 1, 2001 Page 2 of 5 City's right-of-way. The guidelines do not regulate utility facilities that are attached to utility poles, street light poles, or other structures within the public right-of-way. In addition, there are no guidelines in place for aboveground utility facilities that are located on public properties such as parks, community facilities, or other City-owned properties. The City currently has two pending requests for installation of wireless tolecommunication facilities at City-owned parks. Guidelines are needed to regulate these facilities when they are located on City-owned properties to ensure that they do not interfere with public use and the designs are aesthetically pleasing. This item was scheduled for City Council consideration on May 7, 2001, but was continued to this meeting date to allow for additional input from utility providers. On September 10, 2001, the Planning Commission recommended that the City Council adopt Ordinance ~o. 1232 and Design Guidelines related to design review and design criteria for aboveground utility facilities and their accessory equipment on public properties and in the public right- of-way. Attachment A is a copy of the Planning Commission staff report from the meeting of September 10, 2001. A discussion of the City's existing requirements, proposed standards, and public input are included within tho report. Tho Planning Commission recommended adoption of the standards outlined in the "Discussion" section of this report. DISCUSSION The proposed code amendment would amend the Design Review of Aboveground Cabinets Ordinance and the Aboveground Cabinet Design Guidelines to address any aboveground utility facilities (not only cabinets) that are located either on public properties or in the public right-of-way. In general, the guidelines address facility location, screening, signs, accessory equipment, and set forth a review process as follows: Location. Aboveground utility facilities should be placed underground where technologically feasible. If the facilities are located abovegmund, the facilities should be placed in locations where there is little or no interference with public use of the properties and the rights or reasonable convenience of property owners who adjoin the properties. When aboveground utility facilities are located within redevelopment project areas, a finding of conformity to the respective redevelopment plan would need to be made by the City's Redevelopment Agency prior to application consideration. Stealth Facility. Aboveground utility facilities should be designed as stealth facilities with concealed antennas to be placed within existing structures such as buildings, utility poles, light poles, freestanding signs, score boards, towers, or fencing and Aboveground Utility Facilities October 1,2001 Page 3 of 5 would need to blend into the surrounding environment or be architecturally integrated into the existing structures. Co-location. Where possible, aboveground utility facilities should be co-located with existing utility facilities. The same is applicable for any existing utility facilities that are .located underground within the public right-of-way. Utility providers, with permission to occupy the same structure or public right-of-way, should co-locate their utility facilities either aboveground or underground. Colors. Any part of a utility's facilities visible to public view would be required to have subdued colors and non-reflective materials which blend with surrounding materials and colors and would be required to be covered with an anti-graffiti material. Screening. For building- or structure-mounted facilities, screening would need to be compatible with the existing architecture, color, texture, and/or materials of the building or structure. Landscaping. When landscape screening is proposed or required, the landscaping would need to be compatible with the surrounding landscape area and would be of a type and variety capable of screening the utility facilities. All landscaping would need to be adequately maintained. Signs. Signs for utility facilities would be required to comply with the City of Tustin Sign Code. Accessory Equipment. Accessory equipment associated with the operation of the utility facilities would need to be designed, located, and made part of the structures (i.e. as part of the base or support structure) or be located within buildings, enclosures, or cabinets. If the equipment is located inside a cabinet or enclosure, it would need to be placed in accordance with the criteria for aboveground accessory equipment. Process. Prior to installation of any.ab°veground utility facility, an applicant would be required to submit a Design Review application and plans of the proposed location of the utility facility including accessory equipment located in an aboveground cabinet, enclosure, or box to the Director of Community Development. Information related to the dimensions, proposed colors, screening materials, noise levels and whether there would be interference with the public radio system would be required. Aboveground Utility Facilities October 1, 2001 Page 4 of 5 Upon the application being found complete by the Director, the Director or designee would review the plans using the criteria set forth in the Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-way. If the utility facilities are to be located within redevelopment areas, then a finding of conformity by the Redevelopment Agency would need to be made prior to the Director's consideration of the Design Review. The Director may conditionally approve or. deny the applications. If the Design Review application is approved, the item would then be set for City Council approval of a Lease Agreement or License for a utility facility located on public prop. erty or a Right-of-Way Agreement for a utility facility located in the public right-of-way. Once the Lease Agreement or Right-of-Way Agreement is approved, the applicant would be required to obtain all applicable permits prior to installation of the utility facility. These permits would include, but not be limited to, electrical permits, building permits, encroachment permits, and other permits required by the City or any other agencies such as the Federal Aviation Administration (FAA), Federal Communication Commission (FCC), Public Utility Commission (PUC), or other County, State, or Federal agencies. Underground utility facilities that are not regulated by the proposed Ordinance and the Design Guidelines do not need to follow the Design Review process; however, they would be required to be installed in accordance with the encroachment permit procedures and would need to have the applicable agreements (i.e. Lease Agreement or Right-of-Way Agreement) with the City. Ordinance No. 1232 Ordinance No.1232 is included to accompany the Design Guidelines for placement of aboveground utility facilities on public properties and in the public right-of-way. Ordinance No. 1232 is an enabling ordinance which supports the guidelines by outlining findings and mitigation measures for impacts associated with aboveground utility facilities. The ordinance also establishes application requirements and designates the Community Development Director as the reviewing authority. Appeal procedures are also included pursuant to Section 9272f of the Tustin City Code. Environmental Documentation An Initial Study/Negative Declaration has been prepared in accordance with the provisions of the California Environmental Quality Act (CEQA) for the proposed ordinance and guidelines (Exhibit A of Resolution No. 01-93 - Attachment B). Since the proposed ordinance and guidelines do not involve any specific construction or installation of Aboveground Utility Facilities October 1, 2001 Page 5 of 5 abovegmund utility facilities, no significant impacts would result from the adoption of the proposed ordinance and guidelines. Any impacts would be evaluated in conjunction with a specific Design Review application. City Attorney Review To ensure that the proposed Ordinance and Guidelines are enforceable and do not violate any Federal laws and policies, staff forwarded a copy of the Ordinance and Guidelines to the City Attorney. The City Attorney has reviewed and approved the form and content of Ordinance No. 1232 and the Guidelines, as proposed. Ju~til~a Wil~k'om Associate Planner Elizabeth A. Binsack Community Development Director Attachments: Al B. C. D. Planning Commission Staff Report dated September 10, 2001 Resolution No. 01-93 and Exhibit A (Negative Declaration) Ordinance' No. 1232 Resolution No. 01-95 S:\CDD\CCREPORT~abovegmund utility facilities in public row.doc Attachment A of. October 1, 2001 City Council Staff Report Planning Commission Staff Report dated September 10, 2001 , i .... I IIII i IIIIIII IIIIIII III I Report to th e Planning Commission DATE' SEPTEMBER 10, 2001 TO' PLANNING COMMISSION ITEM #4 FROM' COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT: 'ORDINANCE NO. 1232 AND DESIGN GUIDELINES FOR ABOVEGROUND UTILITY FACILITIES ON PUBLIC PROPERTIES AND IN THE PUBLIC RIGHT-OF-WAY ENVIRONMENTAL STATUS' A NEGATIVE DECLARATION HAS' BEEN PREPARED IN ACCORDANCE WITH THE PROVISIONS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) FOR THE PROPOSED CODE AMENDMENT ,RECOMMENDATION That the Planning Commission' . Adopt Resolution No. 3774 recommending that the City Council adopt the Negative DeclaratiOn for the approval of Ordinance No. 1232 and Resolution No. 00-44 for the Design. Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-way. . Adopt Resolution No. 3775 recommending that the City Council adopt: 1) Ordinance No. 1232, repealing Part 6 of Chapter 2 of Article 7 (Design Review of · Aboveground Cabinets) in its entirety and replacing with new requirements for aboveground utility facilities on public properties.and in the public right-of-way, and 2) Resolution No. 00-44 repealing Resolution No. 99-84 related to Design Guidelines for Aboveground Cabinets and replacing with Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-way. BACKGROUND On December 6, 1999, the City Council adopted Ordinance No. 12.13 and Design Guidelines to regulate power supply equipment for telecommunication facilities within the City"s right-of-way. The guidelines do not regulate, utility facilities that are attached to utility poles, street light poles, or other structures within the City's right-of-way. In addition, there are no guidelines in place for aboveground utility facilities that are located.on public property such as parks, community facilities, or other City-owned properties..,The City. Planning Commission Report Aboveground Utility Design Guidelines September 10, 2001 Page 2 currently has two pending requests for installation of wireless telecommunication facilities at City-owned parks. Guidelines are needed to regulate these facilities when they are located in City-owned parks to ensure that they do not interfere with public use and the designs are aesthetically pleasing. This item was scheduled for the Planning Commission's consideration on 'April 23, 2001, but .was continued to allow for additional input from utility providers. At the direction of the Planning Commission, staff sent out copies of the proposed ordinance and guidelines to utility providers. The ordinance and guidelines have since been modified to addreSs the majority of the concerns from wireless providers and utility companies. Four utility providers provided comments (Attachment 3) and responses to the comments are summarized under the Public Input section of this report. DISCUSSION The proposed code amendment would repeal the Design Review of 'Aboveground Cabinets Ordinance and the' Aboveground Cabinet Design Guidelines in its entirety and authorize the proposed new guidelines which address any aboveground utility facilities (not only cabinets) that are located either on public properties or in the public right-of-way. Aboveground utility facilities are defined as any aboveground public or private plant, equipment, and property including, but not limited to, cables, wires, conduits, ducts, pedestals, antennae, utility poles, street light poles, utility towers, or other structures and their supports, electronics, and other appurtenances used or to be used to transmit, receive, distribute, provide, or offer utility services. This includes facilities for personal wireless services as defined in the Telecommunication Act of 1996, 47 U.S.C. § 332(C)(7). Public properties would include any properties in which the City of Tustin and/or the City's Community Redevelopment Agency holds a legal interest exclusive of the City's right-of- way. Public right-of-way would include all public streets, sidewalks, and utility easements owned in fee or easement by the City. Although the proposed ordinance and design guidelines suggest that utility facilities be placed underground whenever foasible, the intent of the code is to regulate facilities located aboveground. All underground facilities are regulated under Part 3, Chapter 2, Article 7 of the Tustin City Code. Desian Guidelines Utility facilities, particularly, wireless services, have proliferated in many areas in the City due to 'consumer demand for wireless communications. T° address potential visual impacts and safety concerns associated with the installation of aboveground utility facilities, staff prepared the Design Guidelines for Aboveground Utility Facilities on Public Planning Commission Report Aboveground Utility Design Guidelines September 10, 2001 Page 3 Properties and in the Public Right-of-Way (Exhibit B of Resolution No. 3775). Minor changes have been made to the existing guidelines related to accessory equipment placed'in cabinets (aboveground cabinets). To illustrate the changes, staff has .highlighted new text and struck through deleted text. Additional language pertaining to those facilities that would be located within redevelopment project areas has also been added. In general, the guidelines address' facility location, screening, signs, accessory equipment, and set forth a review process as follows: Location. Aboveground utility facilities should be placed underground where technologically feasible. If the facilities are located aboveground, the facilities should be placed in locations where there is little or no interference with public use of the properties and the rights or reasonable convenience of property owners who adjoin the properties. When aboveground utility facilities are located within redevelopment project areas, a finding of conformity to the respective redevelopment plan would need to be made by the City's Redevelopment Agency prior to application consideration. · Stealth Facility. Aboveground utility facilities should be designed as stealth facilities with concealed antennas to be placed within existing structures such as buildings, utility poles, light poles, freestanding signs, score boards, towers, or fencing and' would need to blend into the surrounding environment or be architecturally integrated into the existing structures. Co-location. Where possible, aboveground utility facilities should be co-located with existing utility faCilities. The same is applicable for any existing utility facilities that are located underground within the public right-of-way. Utility providers, with permission to occupy the same structure or public right-of-Way, should co-locate their utility facilities either aboveground or underground. .C.,ala~. Any part of a utility's facilities visible to .public view would be required to have subdued colors and non-reflective materials which blend with surrounding materials and colors and would be required to be covered with an anti-graffiti material. Screening. For building- or structure-mounted facilities, screening would need to be compatible with the existing architecture, color, texture, and/or materials of the building or structure. Landscaping. When landscape screening is proposed or required, the landscaping would need to be compatible with the surrounding landscape area and would be of a type and variety capable of screening the utility facilities. All landscaping would need to be adequately maintained. Planning Commission Report Aboveground Utility Design Guidelines September 10, 20'01 Page 4 S_igg.s.-. Signs for utility facilities would be required, to comply with the City of Tustin Sign Code. Accessory. Equipment. Accessory equipment associated with the operation of the utility facilities would need to be designed, located, and made part of the structures (i.e. as part of the base or support structure) or be located within buildings, enclosures, or cabinets. If the equipment is located inside a cabinet or enclosure, it would need to be placed in accordance with. the criteria for aboveground accessory equipment. Process. Prior to installation of any aboveground utility facility, an applicant would be required to submit a Design Review application and .plans of the proposed location of the utility facility including accessory equipment located in an aboveground cabinet, enclosure, or box to the Director of Community Development. If the utility facilities are to be located within redevelopment areas, then a finding of conformity by the Redevelopment Agency would need to be made prior to Design Review consideration. Information related 'to the dimensions, proposed c°lors, screening materials, noise levels and whether there would be interference with the public radio system would also be required. Underground utility facilities that are not regulated by the proposed Ordinance and the Design Guidelines do not need to follow the Design Review process; however, they would be required to be installed in accordance with the encroachment permit procedures and would need to have the applicable agreements (i.e. Lease Agreement or Right-of-Way Agreement) with the City. Upon the application being found, complete .by the Director, the Director or designee would r~eview the plans using the criteria set forth in the Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-way. If the utility facilities are to be located-within redevelopment areas, then a finding of conformity by the Redevelopment Agency would need to be made prior to the Director's consideration of the Design Review. The Director may conditionally approve or deny the applications. If the Design Review application is approved, the item would then be set for' City Council approval for a Lease Agreement or License for a utility facility located on public property or a Right-of-Way Agreement for a utility facility located in the public right-of-way. Once the Lease Agreement or Right-of-Way Agreement' is approved, the applicant would be required to obtain all applicable permits prior to installation .of the utility facility. These permits would-include, but not be limited to, electrical · permits, building permits, encroachment permits, owner authorization, and other permits required by the City or any other agencies such as the Federal Aviation Administration (FAA), Federal Communication Commission (FCC), Public Utility Commission (PUC), or other County, State, or Federal agencies. .) .Planning Commission Report Aboveground Utility Design Guidelines September 10, 2001 Page 5 Public Input On May 1, 2001, at the direCtion .of the Planning Commission, staff sent out copies of the proposed Ordinance and Guidelines to utility providers. Responses were received from Pacific Bell, Southern California Edison, AT&T, and the Consulting Group representing Cingular Wireless (Attachment 3). In addition, at the request of Pacific Bell and Southern California Edison a meeting was held t° discuss their concerns on the proposed Ordinance and Guidelines. The proposed Ordinance and Guidelines then . were revised to incorporate input and comments from the utility providers. On August 13, 2001, staff sent out the revised Ordinance and Design Guidelines to utility providers for their, additional review and comments. Only two providers (Southern California Edison and Pacific Bell) submitted their comments. In general concerns and comments are summarized as follows' 1. Comment: How is being adjacent to residential or institutions a public safety concern? Response: Overconcentrated telecommunication facilities and their accessory equipment located adjacent to sensitive residential u.ses such as residential care facilities for the elderly and day care homes for children may impact public safety by either blocking visibility for traffic entering and exiting the facilities or, by nature, children may utilize the equipment as hiding place or sitting area. Often these facilities and their accessory equipment contain a power sUpply which may also be dangerous if vandalized or .broken into. 2. Comment: Wireless facilities are regulated "telephone corporations, subject to a Franchise or Right-of-way Agreement. "as such should not be Response: The City concurs that a wireless company that holds a certificate or license from the Public Utilities Commission is not subject to a Franchise or Right-of-way Agreement. Section 7261 of Ordinance No. 1232 requires a Right-of-Way Agreement in accordance with Article 7 of the Tustin City Code if the telecommunication facilities are located within the public, right-of, way. Article 7 of the Tustin City Code outlines the requirements of Right-of-Way Agreement and exempts telegraph and telephone providers from the requirement. However, this does not prevent the .City to require a Lease Agreement should the facility be located within public properties, i.e. City- Planning Commission Report Aboveground .Utility Design Guidelines September 10, 2001 Page 6 owned parks, City Hall, etc., exclusive of the public right-of-way. gives providers a mechanism by which to locate on City properties. This Ordinance 3. Comment: It is impossible to place an antenna within a utility pole. Response: Although not all wireless antennas may be. placed within light or utility poles, . there · are designs and methods utilized by utility providers where antennas are placed on and/or incorp°rated into the light or utility poles. Such providers' may include the former Metricom, AT&T Wireless, and Southern California Edison (SCE) private radio system. An example of such a facility is the improvement by Cox Communication at the Tustin Sports Park where the antennae arrays are attached ,to the sides of three field lights and the wiring is contained within the light poles. 4. C'omment: Wireless Corporations are regulated "telephone corporations," authorized to utilize the public right-of-way under the State franchise. as such are- Response: The City concurs that telephone corporation under the State Public Utilities Commission is authorized to use the public right-of-way; however, this does not prevent the City from managing the public' right-of-way to' control the orderly flow of vehicles and pedestrians; coordinate construction schedules; determine insurance, bonding, and indemnity requirements; establish .and enforce building codes; keep track of the various systems using the right-of-way to prevent interference between them; require undergrounding; impose fees to recover an appropriate share of the increased street repair and paving costs .that result from repeated excavation; and, enforce the zoning code. 5.. Comment: Radio signals'which' require a series of antenna attached to, utility poles or similar existing structures would reduce the needs for tall stand-alone antenna towers while providing necessary telephone service. In addition, the Federal Telecommunication Act of 1966 (the "Act")limits a local jurisdiction to regulate the placement of wireless facilities. Further the Act regulates that' a local jurisdiction shall not discriminate among providers and shall not prohibit the provision for personal wireless. Planning Commission Report Aboveground Utility Design Guidelines September 10, 2001 Page 7 Response: The City agrees the approach of utilizing micro-antennae attached to utility poles or similar structures could reduce the need to install stand alone (monopole) towers. Additionally, the intent of the Ordinance and Guidelines is not to prohibit the use of the public right-of-way, but rather to allow and regulate the placement of the facilities to promote and protect public safety, aesthetics, and land use compatibility between these facilities and adjacent land uses without discrimination. 6. Comment' The Act prohibits local government from regulating the placement, construction, and mOdification of personal wireless service facilities on the basis of the environmental effects of radio frequency. Response· The proposed Ordinance and Guidelines do not regulate utility facilities based on environmental effects but rather based on aesthetics, public safety in the caSe of the safety of motorists and pedestrians using the public right-of-way, and land use zoning. 7'. Comment: The "absolute" co-location requirement is not always feasible. The City should add the provision "where technically feasible" at the end of this section. Response: Section 4.2.d.5. has been revised to allow the applicant to justify when co-location is unfeasible. 8. Comment: Undergrounding of equipment is sometimes feasible from a technical standpoint but is extremely costly because of the need for ongoing maintenance access, the danger of moisture seepagel or is simply unjustified given the relatively small size of installation. The Ordinance must require sPecific justification for undergrounding. Response' The Ordinance 'would provide the City the right to require undergrounding when it is · technologically feasible and when all other utility facilities are placed underground. This is consistent with the recent Court decision' which would permit the City to Planning Commission Report Aboveground Utility Design Guidelines September 10, 2001 Page 8 require undergrounding if it is consistent with the requirements imposed on other utilities. 9. Comment: The length of notice for required removal (90 days) is far too short to permit providers to locate alternative sites. The notice should be lengthen to 180 days in all but very urgent circumstances. Additionally, the "public interest" standard would require a definition. Response: The Guidelines have been revised to require removal when determined to be necessary to protect public health, safety, and welfare in lieu of "public interest" and that a.ninety (90) day notice is considered to be adequate to perform such removal. 10. Comment' The Guidelines provide the City the right to modify the existing Lease Agreement to include a rental rate that is superior to the existing Lease Agreement. This requirement contradicts the essence of a lease contract. Response' Previously, the Council directed staff to look into other cities' rental rates and requested' that contracts be modified to include superior rental rates. The Guidelines however h'ave been modified to allow for a negotiation with the City Attorney's office and the City Manager's office: The specific.terms and conditions would be based on a case by case basis. 11. Comment: The Guidelines prohibit the transfer of a Lease Agreement without prior written consent, to the City. The Guidelines Should be modified to allow such transfer in the event of a change in control., merger, or acquisition. Response' The Guidelines have been modified to allow for the City Attorney and the office of the City Manager to provide the specific terms and conditions of the Lease Agreement. Planning Commission Report Aboveground Utility Design Guidelines September 10, 2001 Page 9 1 2. Comment: We recommend that the sentence under Section 5(e) regarding maintenance and replacement of dead or diseased plants be deleted. It is the practice to replace appropriate landscaping when removed or damaged. during construction; however, it is not the practice to continue maintenance of those landscapes. This language should be deleted or modified. Response' Section 5 (e) is a regulation pertaining to the maintenance of proposed or required landscape screening. The Planning Commission specifically requested that this I'anguage be added to ensure that the landscaping would be adequately maintained. Section 7.5.e regulates the replacement of landscape materials that are damaged as a result of construction activities' Maintenance of these landscape areas would continue as previously done prior to construction, i.e. maintained by City or adjacent property owner, etc. 13. Comment: · Section 4.2.c, the word "locate" should' be changed to "considered." · Section 7.1.a, be changed to read, "Installation of replacement aboveground accessory.equipment shall be approved..." instead of ~ approved. · Define the term "adjacent" and "stealth facility." Response: · Section 4.2.c has been revised to use the word "considered." · Section 7.1 .a has been revised to use the. word "shall" instead of "may be." · The term "adjacent" means "next to, adjoining to, abuts, etc." · The term "stealth facility" has been defined under Section 2: Definitions. 14. Comment: The phrase "No Design Review Fee will be required" under Section.7.1.c. should be reinstated. Response: Section 7.1 .c pertains to an initial application for a review of a comprehensive manual. Section 7.1.c.2 was added to alloTM 'for installation of accessory equipment that is in accordance with an approved manual and would not be.subject to a Design Review process. Therefore, no fees would be required. Planning Commission Report Aboveground' Utility Design Guidelines September 10, 2001 Page 10 Qrdinance No. 1232 Ordinance No.1232 is included to accompany the Design Guidelines for placement of aboveground utility facilities on public properties and in the public right-of-way. Ordinance No. 1232 is an enabling ordinance which supports the guidelines by outlining findings and mitigation measures for impacts associated with aboveground utility facilities. The ordinance also establishes application requirements and designates the Community Development Director as the reviewing authority. Appeal procedures are also included pursuant to Section 9272f of the Tustin City Code. Environmental Documentation An 'Initial Study/Negative Declaration has been prepared in accordance with the provisions of the California Environmental Quality Act (CEQA) for the proposed ordinance and guidelines amendment (Exhibit A of Resolution No. 3774 - Attachment 1). Since the proposed ordinance and guidelines do not involve any specific construction or installation of aboveground Utility facilities, no significant impacts would result from the adoption of the proposed ordinance and guidelines. Any impacts would be evaluated in conjunction with a specific Design Review application. To ensure that all forms of aboveground utilities (i,e. cables, wires, pedestals, antennae, light poles, wireless facilities, etc.) would be covered, the definition of "telecommunication facilities" was replaced with "utility facilities," These changes are reflected in the draft negative Declaration. City Attorney Review To ensure that the proposed Ordinance and Guidelines are enforceable and do not violate any Federal laws and policies, staff forwarded a copy of the Ordinance and Guidelines to the City Attorney. The City Attorney has reviewed and approved the form and content of Ordinance No. 1232 and Guidelines, as proposed. J~ina Willkom - Associate Planner Elizabe~l~ A. E~in~ack Community Development Director Attachments' 1. Resolution No. 3774- Negative Declaration 2. Resolution No. 3775- Ordinance No. 1232 and Design Guidelines 3. Letters from'Utility Providers S:\CDD\PCREPOR'iAaboveground facilities guidelines.doc Attachments 1 and 2 of Planning Commission Report See Attachments B (Negative Declaration), C (Ordinance No. 1232), and D (Resolution 01-95) of City Council Report Attachment 3 of Planning Commission Report Letters from Utility Providers SON' An EDISON INTERNATIONAL® Company August 27, 2001 Kim Barone Schercr Region Manager Public Mfairs Ms. Justina Willkom, Planner City of Tustin Community Development Department 300 Centennial Way Tustin, CA 92780 Dear Ms. Willkom: Thank you for the opportunity to comment on the Draft Ordinance No. 1232 and Design Guidelines for Aboveground Telecommunications Facilities on Public Properties and in the Public Right-of-Way. While we appreciate your efforts to incorporate many of our suggested amendments to the original draft, we continue to have some issues which we would like to discuss with you regarding the current draft, dated August 13, 2001. Among our concerns are the following: 1. Section 5 (e) .(Development Guidelines - Landscaping) - We recommend that the second sentence regarding maintenance and replacement of dead or diseased plants be deleted. We suggest usage of the same language in Ordinance No. 1213, as a .lready adopted by the City Council. This language is found in Section 4.3 (Screening) of the Above Ground Cabinet Design Guidelines as well as Section 7.4 of this proposed Above Ground Utility Facilities Design Guidelines draft. 2. Section 7 (1)(c) (Aboveground Accessory Equipment) - in our last meeting we requested that the phrase, "no Design Review Fee will be required and" be reinstated as approved by the City Council in Ordinance No. 1213. We believed this was agreed to at our meeting and yet the' phrase remains stricken in the current draft. 3. Section 9 (f) (Lease Agreement or License.- Rental Fee Rate and Most Favored City_ Clause) - we request deletion of this clause. To reiterate,, we request and welcome the opportunity to discuss our remaining concerns with you prior to the next Planning Commission meeting. I can be reached at (714) 973- 5548. Once again, thank you for the oppommity.to have input relating to this important matter. Sincerely, E O. Box 11982 Santa Aha, CA 92711-1982 714-973-5548 Fax 714-973-5752 baronek@sce.com City of Tustin Response to draft ordinance'no. 1232 August 27, 2001 Page 2 Cc' Larry R. Todd, SCE Public Affairs Alan Llorens, Edison Carder Solutions Thomas K. Braun, Senior Attorney, SCE -John E. Stratman, Jr. Directqr External Affairs 17310 Red Hill AvenL. Irvine, California 92614 (949) 440°6638 Office ((949) 250-0515 Fax ?uite 270 PACIFIC ir,,~l BELL® August 27, 2001 Ms. Justina Willkom Associate Planner City of Tustin 300' Centennial Way Tustin, CA 92780 RECEIVED Dear Ms. Willkom: I would like to thank you and the members of the Community Development staff for the mount of time that has been set aside to meet with Pacific Bell. We would also like to express our thanks for your work on our suggestions with regards to the proposed Ordinance Nol 1232 and Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-Way. During our meeting on May 24, we were able to discuss some of the concerns Pacific Bell had with the above stated proposed ordinance. Although many of our concerns were addressed and rectified, some issues have not been. I would like to take the time to outline those areas that are still a concern to Pacific Bell, in hopes they too will be accepted favorably. Favorable acceptance would enable us to stand beside you in endorsing this ordinance when it is presented to the Planning Commission. Pacific Bell is concerned with the landscaping provisions that can be found in Section 5, sub-section e. It is the practice of Pacific Bell to replace appropriate landscaping when removed or damaged during 'construction. However, it is not the practice of Pacific Bell. to continue maintenance of those landscapes. We would suggest that this section is changed to read, "any removal of landscaping necessary to install aboveground facilities shall be replaced with landscaping materials similar in number, type and size as approved by the Directors of' Community Development and Public Works." Secondly, during our initial meeting Pacific Bell suggested some changes in terminology. At this time we would once again like to suggest the following changes. In Section 4.2, sub-section c, we would ask that the word located be changed to considered. So that this section would read, "Design Review approval'for aboveground accessory equipment associated with the operation of the utility facilities shall be considered in accordance .... in Section 7 of these guidelines." Furthermore, we would ask that Section 7.1, sub- section a., be changed to read, "Installation of replacement aboveground accessory Ordinance Letter Page 2 equipment shall be approved," instead of, may be approved. We feel that by completing these suggested changes it will expedite the approval process for both City staff and companies alike. In addition, Pacific Bell would ask that the term adjacent, which can be found in Section 7:1.-1 be defined more clearly, as well as, to whom the term stealth facility would apply. Lastly, we would like to address SectiOn 9, sub-section f, which addresses the Rental Fee Rates and Most-Favored City Clause. Specifically, we would ask that the most-favored city claUse be taken out of the proposed ordinance. We feel that this section is merely a "safety blanket" for the City of Tustin to add new regulations as new ideas from neighboring cities are developed. In saying this, we feel that this section-is not fair to our company and'the many agreements that Pacific Bell has' engaged in with .the Ci.ty in'the . past and will be working on in the' future. In simple terms, Pacific Bell feels that this is not a good and fair business practice and would strongly encourage,..and kindly ask, City staff to remove this section prior to seeking Planning Commission approval. As bOth concerned business partners 'and corporate citizens of the City of Tustin, the opportunity allowed to us to assist staff in accomplishing the City's goal of a uniform set of abovegrOund facility guidelines has been a serious one. We thank you for both your assistance and continued support with this matter. Please feel free to contact me should you have any concerns. Sincerely, ~, Director, External Affairs cc: Elizabeth A. Bi'nsack Karen Peterson William Huston : .jii:~.:~'.,',"~,..:,.:i.~,:,'.:;;;~ ~i'~ SOUTHERNE. D! $oCALI FOR~., ® An EDISON 'INTERNATIONAL® Company May 15,2001 Ms. Elizabeth A. Binsack, Director Conununity Development Department City of Tustin 300 Centemfial Way Tustin, CA 92780 RECEIVED 1 B 2001' GO Nll DEVELOCt ENi .. .. KimBarone Scherer. Region Manager Public Affairs Subject: Proposed Ordinance No. 1232 Dear Ms. Binsack: I am writing on behalf of Southern .California Edison in response to your request .for comment regarding the City's proposed Ordinance No. 1232 relating.to Design Guidel~es for Ab0veground Telecommunication Facilities on Public Properties and'the Public Right of Wa~. As you know, Edison, along with other utility compmfies, .worked with the City staff for nearly one year to come to agreement regarding the City's Above Ground Cabinet Desigaa Ordhaance (No. 1213). Although we appreciate your -willingness to postpone the Planning Commission hearing on this new proposal, we are disappohated that we were not given oppommity to work with you again regarding the language of this draft ordinance prior to its initial April 23 Plmming Con~nission heating date. After an initial .review, we are seriously concerned aborn the proposed ordinance and believe it is too broad and far-reachhag in its language and intent. The proposed. Aboveground Teleconmamfication Facilities ordinance appears to go way beyond, what was proposed mad eventually ratified by the City Council for tl~e Above Crrotmd Cabhaet Design Ordinance. As written, it appears .to place unreasonable burdens and potentially excessive'costs on our ratepayers. We would like to request tl~e oppommity to meet with City staff to discuss our concerns with the new proposal as well as our recommendation'to keep Ordinance 1213 intact, as approved by City Council in December 1999. .. Again, thank you .for this oppommity to address this important matter. I look.forward to hearh~g from you in fl~e near future. Shacerely, Khn Scherer Region Manager Justina Willkom, Associate Pimmer Larry Todd, Southem California Edison P. o. Box 11982 Santa Ana, CA 92711-1982 ' 714-973-5548 Fax 714-973-5752 baronek@sce.com Director External Affairs 17310 Red Hill Avenue, Irvine, California 92614 (949) 440-.6638 Office ((949) 250-0515 Fax May 15,. 2001 270 RE'CEIVED MAY 1 G 2001 · COMMUNITY DEVELOPMENT PAC! r,~ I~ BE LL® Ms. Elizabeth A. B insack Director, Commtmity Development City of Tustin 300 Centennial Way Tustin, CA 92780 Re: Proposed Ordinance No. 1232 Dear Ms. B insack: : Thank you for allowing Pacific Bell to formally respond to the City of Tustin's proposed Ordinance NO.. 1232 and Design. Guidelines for Aboveground Telecommunications Facilities on Public Properties and in the ~Public Right-of-Way..Pacific Bell is very concerned .that this Ordinance is an attempt by the City to regulate the way utilities conduct'business within the City without obtaining input from affected industry members. Unfommately, the Proposed Ordinance appears to "do away" with the work that was done by representatives from the City, Pacific Bell, and'Southern California Edison during the better part of 1999 on what was then proposed Ordinance No.. 1213.. Pacific Bell was satisfied with the final document that the City Council passed on December 06, 1999 and was ready to work with the City to implement this new ordinance. We are pUZzled as to why the city believes it .is now necessary to scrap all this hard work and start over with a new ordinance that contains many onerous provisions that would be costly to execute for both the City. and Pacific Bell. .. As you may expect, Pacific Bell would like an oppommity' to meet with you and members of your staff to discuss what looks like an ordinance that is intended for those wireless carders that conduct bUSiness within the City limits. .. We would encourage you and members of your staff to rethink your position and leave Ordinance 1213 intact. Once again, thank you for your continued time and assistance on this very important issue. As both concerned business Partners and corporate citizens of the City of.Tustin, the oppo .mmity allowed to assist staff is a serious one..By doing so, it assists Pacific Bell in accomplishing its objectives, which are to provide the best telecommunication service quality available to your valued citizens. I look forward to hearing from you soon. Binsack Letter- May 15,200i Page 2 Sincerely, (..,/John E. Stratman, Jr. Director, External Affairs Mr. Bill HUston, City Manager · i The Consulting i ilnl .... , , Group, Inc., May 14, 2001 Justina Willkom City. of TuStin Community Development Department 300 Centennial Way. Tustin, Ca 92780 RECEIVED · MAY 1.5 2001 COMMUNITY DEVELOPMENT l_ l,! Re: Proposed Telecommunications Ordinance No..12.32 .This 'office.represents Cingular Wireless (formerly known as Pacific Bell Wireless). The Cingular Wireless Telecommunications system in Tustin provides enhanced voice and data communications, as well as significant public health and safety benefits for motorists and medical, fire, Police and emergency response personnel. Cingular Wireless provides the next generation of wireless services for the benefit .of residents and businesses in Tustin, as well as for visitors to the community. To effectively provide these services to the community, Cingular Wireless has constructed a number of antenna sites in Tustin, in accordance with the City's current planning and zoning regulations. As demand for these services increases in the city of Tustin,. Cingular Wireless may need to add a few more antenna sites. ~' Cingular Wireless has revieWed the Draft Ordinance and takes this opportunity to make a number of comments.' We have been informed that this Draft Ordinance is intended to be sent to'the Planning Commission for consideration' on June 11, 2001. · Section 1 Findings, Item F, Bullet 1. States: "Public safety could be negatively impacted if the telecommunication facilities and their accessory equipment cabinets are' over concentrated in specific areas, close to intersections thus impacting motorist visibility; adjacent to Sensitive residential or institutional uses; ........ How is being adjacent to residential or institutions a public safety concern? Section 2, Part 6,. Item 7260 'Purpose and Findings ,. States: "Reasonable compensation for permitting private use of public property and the public right of Way is also necessary to offset the right of way maintenance cost ...... " Cingular Wireless is a regulated "telePhone Corporation".. It holds a registration, in lieu of a Certificate of' Public Convenience and Necessity issued by the California Pubic Utilities. Commission; authorizing it to provide wireless telecommunications services throughout the state. The use of the right of way by telephone corporations is already a permitted use under state franchise. It is not a conditional right and is not subject to governmental conditions. It is a · vested right protected by the state and federal constitutions. With respect to the facilities installed in the public right of way, Section 7901 of the PUC code, prohibits local jurisdictions from charging monetary compensation in order to use the right of 18500 Von Karman Avenue, Suite 870 · Irvine, CA 92612 °-Phone: '(949) 477-3010 · Fax: (949) 477-2370 . way. Are these maintenance cost being 'charged to all utilities and,'users of the public right.of way? Section 5' Development Guidelines, Item a) States "Aboveground TelecommUnication facilities shall' be designed as stealth facilities with concealed antennas to be Placed within existing structures such as building, utility poles, ..... It is impossible to place an antenna within a utility pole. Section 7,1 Process, Item b, bullet 1. States "No cabinet may be located adjacent to a front-yard area of a residentially zoned or used property." .' Cingular Wireless is a regulated "telephone Corporation". it holds a registration in lieu of a Certificate of Public Convenience and Necessity issued'by the California Pubic Utilities Commission; authorizing it to provide wireless telecommunications services.throughout the state. 'The use of the right of. way by telephone corporations is already a permitted use under. state franchise. It.is not a conditional right and is not subject to governmental conditions, it is a vested right protected by the state and federal constitutions. Conclusion Cingular Wireless would like to work cioseiy with the City to achieve an Ordinance, which balances reasonable local regulatory concerns with both the rights .of the wireless companies under State federal laws and the practiCalities of wireless' telecommunications. As currently written, the Draft Ordinance is a good first effort, but it needs some work. The comments and observations made here in are done in an effort to assist the City in developing its next draft. Cingular Wireless appreciates this opportunity to comment, and will make itself available at any time to answer any questions, which the Commission may have concerning our service to the Tustin community. :verY truly yours, Manager - Right of Way (714)883-5749' ' tholte@tcgsite.com MACKENZIE & A. LB~TON LLP ONE Pos'r STA~, SU1TE 500 SAN FRANCISCO, CALIFORN~ 94104' i il TELBPI-.IONE 41..5 / 2.~8-4000 ~AC.~LE 415 / 2,88-4010 May 15,. 2001 By Facsimile (714). 573-3113 Iustina Willkom Associate Planner Community DevelOpment Department City of Tustin 300 Centenniel Way Tustin, CA 92780 Bv Facsimile (714) 835-77 8_7. Lois Jeffrey, Esq. Woodruff, Spradling & Smart 701 South Parker St # 8000 Orange, CA 92868 4760 Re:. City of Tustin's Proposed Ordinance and Design Guidelines for Above-Ground Telecommunication Facilities on Public.. properties and ~n, the Pub.ho Right-of-Way Dear Ms. Willkom and Ms. Jeffrey: · . We are counsel to AT&T Wireless Services, with our principal area of Practice in telecommunications law, particularly real estate, access and land use issues. We are writing in connection with the City of Tustin's Proposed Ordf~ance and Design 'Guidelines for Above-Ground-Telecommunication FaCilities on Public Properties and in the 'Public Right-of:Way (the Ordinance")-. The major issue addressed in this letter is the City' s proposed tmatmem of wireless facilities placed/n the public fight-of-way. ,As you are .aware, the Ordinance states that applicants will be required to entei.into a "Right-of-Way Agreement." We understand the City has not yet prepared a draft version Of that Agreement, but the Ordinance states the City will charge "[r]easonable compensation for permitting private use of public property and the public right-of:way." (Ordinance, Part 6, Section 7260.) We . believe the City may not lawfully impose'fees or any other burdensome requirements upon AT&T Wireless' use of the public rights-of-way." ' The .AT&T W/reless system, which carries telephone calls using radio signals, requires a series 'of antenna sites in. order to operate. In response to comm.tmity concerns about .visual impact, AT&T Wireless intends to install some of these sites in the public rights-of-waY. The fight-of-way sites are typically smaller "microcell" sites, with antennas mounted.to' existing utility poles, o.r similar existing structures. 'Use of the' fights- of-way carries an important public benefit, in that it reduces the. need for tall sumd-flone antenna towers while providing necessary telephone service. From the legal standpoint, there are various basic requirements applicable to wireless amtenna sites. AT&T Wireless is a telephone cOrporation providing 'wireless telecommumcations services to the gener~ public and'to emergency personnel, including' fire, police and ambulance services. It has been issued a Certificate of PubLic Convenience Iustina ..W. illkom Lois Jeffrey, Esq. May 15, 2001 Page 2 i . and Necessity by' the'Pubhc Utilities commission'and is also hcensed and regulated by the Federal Communications Commission ("FCC").' Certain principles.of state law apply to AT&T Wireless by virtue of its status as a'telephone corporation. As a telephone corporation, AT&T Wireless .is entitled as a matter of law under Section 7901 of'the California Public Utilities Code to mst.all equipment facilities '"along any public road and. highway" provided its facilities do not "incommode". public use of the roadway.! Under Section 7901 a local jmisdiction does not have discretion to deny a telephone corporation access to a public fight-of-way or to chazge compensatory fees; typically the.fight-of-way/nstallations involve iSsu~ce of an encroachment permit to place fac/lifies on utility poles or street lights. . In addition, the federal Telecommunications Act of 1996 (the "Act") c0mains fundamental 1/mits on the fight of a local.jurisdiction to. regulate the placement of wireless facilities. 47 USC Section 332(c)(7)(B) provides that local regulations' , (!) shall not unreasonably discriminate among pro¥idem of function'ally · equivalent, services; and . (II) shall not prohibit or have the effect of prohibith~g the provision of personal wireless services. with respect to radio frequency emissions, the Act states in 47 USC section 332(c)(7)(iv) that: . No State or local govemmem or i~xqtmmentality thereof may'-regulate tl3. e placement, construction, and modffication of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commkssion's regulations concerning such emissions. · In' addition, the. Act requites that localities act on.siting requests '"within a reasonable period of time," and that decisions to deny an application must be .supported by "substm~tial evidence." 47 U SC Section 332(c).(7)(B)(ii) and (iii). The limits on a city's ability to restrict wireless l'acilities in public fights-of- Way have been made even more clear in City_' of_Auburn -v. O. we.st Corporation, -- F. 3d --, 2001 WL 410043 (9~ Cir. (Wash)), a decision which was fled just three weeks ago, on April 24, 2001. " · Our overall concern with respect to the new Ordinance is to ensure that it provides streamlined processh~g and complies with both state law a~d the Telecommunicat/orks Act. , ~ In re.; GTE MobilNet o{ San Tose_, L.P.,_e_ec~, 22 c.P.U.C. 2d 25 (Cal. Pub. Util. C0n'um. 198'6). .} _. luszina Willkom ( Lois Jeffrey, Esq.. ~' May 15, 2001 Page 3 I o .Sta.~¢ Law Prohibit~ the City_ from !mg.osing..C.ompensatorv Fees for Use of the Right_of, Way '. .. AT&T Wireless is a telephone corporation under the Public Utilities Code (the "Code"). A "telephone corporation" includes: every corporation or person owning, .c°ntrolling, operating, or managing any telephone line for compensation wi~in this state .... Code § 234.. "Telephone hne" includes: ail conduits,, ducts, poles, wires, cables, insmlmen,ts, and appliances, and 'all other real estate, fixtures, and personal property owned, controlled, operated, or managed in connection with or to facilitate communication by telephone, whether such communication is had with or without the use of transmission wires. Code §233. The Code therefore inclUdes within the definition'of telephone corporation AT&T Wireless's provision of cellular .wireless. service, and the installation of cable runs necessary to provide such service. The C,,~'fornia Pubh.c Utilities Commission ("CPUC") has ruled that a cellular carrier is a type of telephone corporation,'' and has the right, under Code Section 7901, to install cellular facilities "'along any public'road and highway." In re: · GTE MobilNet of San Jose, L.P,,. etc., 22 C.P.U.C. 2d 25 (CM. Pub. Util. Comm. .1986). There the CPUC went on to .add: It has long been settled that the bUSiness of supplying the people with various forms of telephone service is not a mimic;pal alfa.; .it is a matter of statewide concern, and the Legislature, pursuant to the authority contained in Section 23 of Article XII of the California Constitution, has vested in this Commission the exclusive jurisdiction to supervise' mad regulate ' telephone utilities (Pac.Tel.. &Tel. Co. v C~ty of LOS Angeles (1954) .44 C 2d 272). In re' GTE M0bilNet. of San J0~e, L.P;, etc.., 22 C.P.U.C. 2'd 25, 198'6 Cal.' PUC LEXIS 568, pp: 15-16. AT&T Wireless; as a telephone corporation, may use the public rights of - way. Code §7901 provides a.state statutory franchise to telephone corporations to use the public right of way: Telegraph or telephone corporations may. construct lines of telegraph or. telephone ',dong and upon any public road or highway,-along or across any of the waters .or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures Justina Willkom . Lois Jeffrey., Esq. May 15, .2001 Page 4 of their lines, in suCh manner and at such points as not m incommode the public use Of the road or highway or in~rmpt the navigation of the watem. The C'alifomia Supreme'Court has stated that this language "is a continuing offer extended to telephone and.telegraph compames to use the highways, which offer when accepted by the construction and maimenm~ce of lines constitutes a binding contract based'on adequate consideration and that the vested right established thereby cannot'be impaired' by subsequent acts' of the Legislature." _Co.unty of L.,A, ¥. Southem~ Cal. Tel. Co., (1948) 32 C. 2d 378, 38.4; 196 P. 2d 773, .a~r~eal dismissed, 336 U.S. 929 (1949) (citations omitted). The rights acquired are "vest~c~ rights which the constitutions, both state and federal, protect." Id. at 385 (citations.omitted). Furtheh-nOre, AT&T Wireless, as a telephone corporation, may use the public rights of way without payment of.compensation. In County_ 'of'L.A.v.' Southern · .Cai: Tel. Co. the Coumty sought to compel the defendant telephone company to obtain a county franchise and to pay for the privilege of maint~g' its lines and poles within unincorporated County areas. The County 'alleged, among other Claims, that the 'Section 7901 grant of a '.'free franchise", constituted m~ unconstitutional gift' tO the telephone corporation. The. Court, .in soundly .rejecting this claim, held: "It does not follow,. however, that because telephone and telegraph compm~ies are permitted without charge to construct lines -along the highways the privilege granted is a gift". Id:.at 384. The Court reli.ed on the public bertef~t provided by the telephone corporation: "Obviously, the state. receives a substantial benefit from the continued operation of such a system." Id. at 384. The Court'further rejected 'all'of the County's claims and prohibited the imposit/on of fees for the privilege of' m',fin~ng Ih~es'and poles. In explah~ng the public policy behind § 7901, one court has stated that the noncompensatory gran~ of state easements 'along roads, highways and .waterways spares the [telephone] companies the expense of acquiring easements over privately owned land~s; to cause them wasteful expense would have been contrary to. the State's purpose to encourage their'entrance into the State..' COunty of Los. Angeles. v. General Te.l~hone Co., 249 C'~. App. 2d 903, 907-8 (1967), It is therefore well-settled in law and in practice that a Calitbma local government cannot charge a telephone corporation such as AT&T .Wkeless compensatory fees for the use of the public fight of way. Such charges are prohibited based on a statewide policy to' encourage entrance and reduce costs ~o customers. 2. Burd.en.$0me Requirements .. Local regulations that have the effect of prohibiting wireless service are · barred by the Telecommunications Act. In a very recent decision, the Nh~th Circ~fit Co.urt of Appeals held that fight-of, way ordinances including such features as "a detailed application form, .... documentation of.licenses, certain .specified items, and '[s]uch other and further information as may be requested by the City'" had the overall impact of creating a barrier to' service and were invalid under the Telecommunications Act. Ci~ o.f Au. bum v. Owest Corporation,.-- F.3d --, 2001 WL 410043 (9~ Ck.(Wash)) There the court stated:. Susti.na Willkom Lois. Jeffrey., Esq.. May 15,200'1 Page 5 "Each of these requirements individually 'ha[s] the effect of prohibiting Qwest and other companies from providing teleconununicafions services... Taken together, they create a substantial and unlawful barrier to entry into and pm~icipation in the .-. telecommunications markets.'" (City ofAubum, s_ggr_a, Slip Opinion at p. 5170. In the present situation, there are certain reqttirements which, individu',flly and taken together, are unduly burdensome and are Unjustified under the circumstances. · . A. .The "Absolute" C04ocafion Requirement. The Guide~es require a. "signed statement that 'the applicant agrees to allow for co-location of 'additional telepcommunication facilities on the same structures or within, the same site location." (Section 4.2(e)(5)). The difficulty 'here is that co-location is not' always .feasible - particularly on street lights and utility poles, where there is very 'limited'. space or where there is potential interference. We therefore suggest that. the City add the proviso' "where · technically feasible" at the mad of tt~S section. B. Undergrounding. The City reserves the fight to require .that 'all telecommunications facilities' be placed .undergrom~d when technologically feasible. (Sections 5(i) and 7.2.) Undergrounding of equipment is sometimes feasible' from. the technical standpoint but .eXtremely costly because of the need for ongoing m'amtenance access, the dm~ger of moiSu~re seepage, or is"s~uply unjustified given the relatively small size of the inst'alhttion. In light of the' basic right of a .telephone corporation to place its facilities, in the right of way, the Ordinance must require'a specific justification for undergrounding: for example where specific traffic issues'require that equipment be placed Underground at a certain street comer in order to ensure that the pubt/c's use of the right-of- way is not signfficmafly impaired. "' C' Required Remov'al. Under section 5(h), the City reserves the fight to require removal or relocation of any facility on just ninety .days' notice "when determined tO be in the public interest." We' believe the length of notice is far too short to permit AT&T Wireless to locate alternative site, and We believe the "public interest" standard requires definition. If, ]?or' example, there is. a demonstratect traffic safety issue which poses au threat to public 'safety, then the City may be justified in requiring relocation on just.nh~ety '.days. The Guidelines should lengthen notice to 180 days ~n 'all but.very urgent circumstances posing aaa immediate threat to public safety and the Guidelines should specify the "public interest" issues that might necessitate relocat/on- i.e. traffic or pedestrian s',ffety. '. 3. Lease R~_uiremen. ts. . For use of no._gn-~ght-of-way Public Property, the Guidelhaes require that the 'City's lease with the applicant contain certain clauses. We believe certa/n of these clauses. should be stricken. · A. Most Favored 'C~_W. Cla..u. se.' The'Lease with the City is to provide for market rent, with a CPI. adjus .maent at the commencement of each renewal term. Beyond this however, the Development Guidelines state that: ~ustina Willkom Lois J~ffrey~ Esq. May .1.5, 2001 Page 6 . Should the Grantee, after the execution of the Lease Agreement enter toro a · Lease Agreement with another mtmicip~W or agencY in the Los Angeles- Anaheim-Riverside Metropolitan Statistical Area which agreement contains fin~ciM benefits that are superior to. those in the .existing Lease Agreement, the City shall have the fight 'to require that the Grantee modify the Lease A~eement to incorporate the sm~ne or substant/ally similar benefits or other terms. This requirement contradicts (and essentially negates) the essence of a lease contract and injects a high degree' of uncerta/nty into'any applicant's investment in any installation located in Tustin..'We do not'believe the City has the legal fight to impose sUch a requirement, which, would require ongoing'm-negotiation of any lease on public property. The City has already adequately protected itself by including CPI rent increases. B. Lease Non-Transferable without City Consent. As a matter of general practice, telecommurdcafions leases must be transferable in the event of a change in control, merger or acquisition of subtantially all. assets .by mother entity. We suggest that the City therefore include such an exception to its'requirement of .priOr written consent to any trm~sfer of the 'leasehold. These are our initial, comments. 'We would like to review the proposed agreement-forms, as soon as they are available. We appreciate the chance, to provide further' h~put in such a way as to provide a practical and effective application process that will help AT&T Wireless meet its increasing, customer demand. Sincerely yours, Sarah L..Burbidge for Mackenzie & All ~ritton LLP ' C: Daniel Smith, Esq. ..Leslie Daigle Attachment B of October 1, 2001 City Council Staff Report Resolution No. 01-93 RESOLUTION NO. 01-93 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, ADOPTING THE NEGATIVE DECLARATION AS ADEQUATE FOR THE ADOPTION OF ORDINANCE NO. 1232 AND THE DESIGN GUIDELINES FOR ABOVEGROUND UTILITY FACILITIES ON PUBLIC PROPERTIES AND IN THE PUBLIC RIGHT-OF-WAY The City Council of the City of Tustin does hereby resolve as follows' The City Council finds and determines as follows: A. That the adoption of a new ordinance and guidelines for aboveground utility facilities on public property and in the public right-of-way is considered a "project" pursuant to the terms of the California Environmental Quality Act. Bi An Initial Study and a Negative Declaration have been prepared for this project and have been distributed for public review. The Planning Commission at their meeting of September 10, 2001, recommended that the City Council adopt the Negative Declaration related to Ordinance No. 1232 and the Design Guidelines for AbovegroUnd Utility Facilities on Public Properties and 'in the Public Right-of-way as adequate. Bi The City Council of the City of Tustin has considered evidence presented by the Community Development Director and other interested parties with respect to the subject Negative Declaration. El The City Council has evaluated the proposed Negative Declaration and determined that the proposed Ordinance and Design Guidelines will not result in any significant impacts and, therefore, no mitigation measures are necessary to reduce any significant impacts to a level of insignificance. II. A Final Negative Declaration, attached hereto as Exhibit A, has been completed in compliance with CEQA and State guidelines. The City Council has received and considered the information contained in the Negative Declaration prior to approving the proposed ordinance and the design guidelines and found that it adequately discusses the environmental effects of the proposed ordinance and design Resolution No. 01-93 Page 2 of 2 guidelines. On the basis of the Initial Study and comments received during the public hearing process, the City Council finds that there will not be a significant effect as a'result of the proposed ordinance and design guidelines. Further, the City Council finds that Ordinance No. 1232 and the Design Guidelines for Abovegmund Utility Facilities on Public Properties and in the Public Right-of-way involve no potential for any adverse effect, either individually or cumulatively, on wildlife resources as defined in Section 711.2 of the Fish and Games Code. The City Council hereby adopts the Final Negative Declaration for Ordinance No. 1232 and the Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-way. PASSED AND ADOPTED at a regular meeting of the Tustin City Council, 'held on the lS~ day of October, 2001. TRACY WILLS WORLEY Mayor PAMELA STOKER City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) CERTIFICATION FOR RESOLUTION NO. 01-93 PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 01-93 was duly and regularly introduced, passed, and adopted at a regular meeting, of the Tustin City Council, held on the 1s~ day of October, 2001. COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER City Clerk Exhibit A of Resolution No. 01-93 INITIAL STUDY COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 (714)'573-3100 · Ao BACKGROUND Project Title: Design Guidelines and Ordinance for Aboveground Utility Facilities on Public Properties and in the Public Right-of-way. Lead Agency: City of Tustin 300 Centennial Way Tustin, California 92780 Lead Agency Contact Person: Justina Willkom Phone: (714) 573-3174 Project Location:' Citywide Project Sponsor's Name and Address.: N/A General Plan Designation: All land use designations. Zoning' Designation: Project Description: Surrounding Uses: All zoning districts. Adoption of new guidelines and enabling ordinance for aboveground utility facilities on public properties and in the public fight-of-way. The new guidelines will set forth criteria and regulation for placement of utility facilities to reduce potential negative impacts on the community. North: County of Orange South: City oflrvine East: County of Orange. and City of Ir vine Wesf: City.of Santa Ana Other public agencies whose approx~al is required: Orange County Fire Authority Orange County Health Care Agency South Coast Air Quality Managem6nt District Other City of Irvine City of Santa Ana Orange County. EMA 'lBo .. "ENVIRO~NTAL'FA ')ORS POTENTIALLYAFFECTEI ') The environmental factors checked below Would be potcnti.ally affected by this project, involving at least one impact that is a ."Potentially Significant Impact" as indicated by .th& Checldist in S¢ctionD below. [~]Laud Use and Planning [~Population and Housing [~Geological Problems ["]Water ]'-]Air Quality [-~Transportation & CircUlation [-]Biological Resources ["~Energy. and Mineral Resources Co DETERMINATION.: '- On the baSis of this initial evaluation: ['-]Public Services ["']Utilities and Service Systems [-']Aesthetics [-']C~mral Resources [--]Recreation [--]Mandatory Findings of 'Significance . . I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. .. ['~ I find that although .the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project.. A NEGATIVE DECLARATION will be prepared. 0 [-] I fred that the proposed project MAY. have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is'required. .. . [-] I fred that the proposed project MAY have a significant effect(s) on the environment, but at least, one effect 1) has been. adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based 'on the earlier .analysis as described on attached sheets, if the effect is a "Potentially Significant Impact" Or "Potentially Significant Unless Mitigated." An E.NVIRO~~~ IMP.ACT .REPORT .is required, but it must analyze 0nly the effects that remain to. be addressed. . : o [-] I find that although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects 1) have been.analyzed adequately in an earlier EIR pursuant to applicable standards, and 2)' have been avoided or mitigated pursuant to that earlier ,EIR,-including revisiohs or mitigation measures' that are imposed upon the proposed project. · · [-] I find'that although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially Significant effects 1) have been analYzed adequately in .an earlier NEGATIVE DECLARATION pursuant 'to applicable standards, and 2) haVe been ivoided or mitigated pursuant to that earlier NEGATIVE DECLARA. TION, including revisions or mitigation measures that are imposed upon the proposed project. Preparer: . Justina Willkom ..... Elizabeth A. Binsack, Community Development Director Title Assg¢iate Plarm. e.r 1) 2) 3) 4) 6) 7) 8). 9) De ) EVALUATION OF ENVIRONMENTAL IMPACTS Directions A brief explanation is required for all answers except "No Impact" answers that are adequately supported by the information sources a lead agency cites in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced information sources show that the impact simply does not apply to Projects like .the one involved (e.g., the project falls 'outside a fault rapture zone). A."No Impact" answer should be eXPlained where it is based on project-specific factors and general standards (e.g., the project will not expose sensitive receptors to pollutants, based on a project-specific screening, analysis). All answers, must take into account the whole action involved, including off-site, onsite, cumulative project level, indirect, direct, construction, and operational impacts.. Once the lead agency has determined that a particular physical impact may. occur, the checklist answers must indicate whether the impact is potentially significant, less than significant with mitigation, or less than significant. "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect may be significant. If there are one or more "Potentially Significant Impact" entries when the determination is made, and EIR is required. . "Negative Declaration: Less Than Significant With Mitigation Incorporated" applies where the incorporation of mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less than Significant Impact." The lead agency must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level (mitigation measures from Section XVII, "Earlier Analyses," may. be cross- referenced). Earlier analyses may be used where, pursuant to the tiering, program'EIR, or other CEQA process, an effect has been adequately analyzed in an earlier EIR or negative declaration. Section 15063 (c) (3)(D). In this case, a brief discussion should identify the following: a) Earlier Analysis Used. Identify and state where they are available for review. b) Impacts Adequately Addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the 'earlier analysis. c) Mitigation Measures. For effects that ar.e "Less' than Significant with Mitigation Measures Incorporated," describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site-specific conditions for the project. Lead agencies are encouraged to incorporate into the checklist references to information sources for potential impacts (e.g., general plans, zoning 'ordinances). Reference to a previously prepared or outside document should, where appropriate, include a reference to the page or pages where the statement is substantiated. SupPorting Information Sources: A source list should be attached, and other sources used or individuals contacted should be cited' in the discussion. This is only a suggested form, and lead agencies are free to use different formats; however, lead agencies normally address the questions from this checklist that are relevant to a project's environmental effects in whatever format is selected. 'The explanation of each issue should identify: ' a) the significance criteria or threshold, if any, used to evaluate each question; and, b) the mitigation measure identified, if any, to reduce the impact to less than significance. EVALUATION OF ENVIRONMEN ,L IMPACTS I. AESTHETICS- Would the project: a) Have a substantial adverse effect on a Scenic vista? b) Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character or quality of the site. and its surroundings? d) Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area? II. AGRICULTURE .RESOURCES: In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site .Assessment Model (1997) prepared by the Califomia Dept. of Conservation as an optional model to use in'assessing impacts on agriculture and farmland. Would the project: a) Convert Prime Farmland, Unique Fan, land, or Farmland of Statewide Importance (Farmland), as shown on the maps' prepared pursuant to the Farmland Mapping and Monitoring Program of the Califomia Resources Agency, to non- agricultural use? b) Conflict with existing zoning for agricultural Use, or a Williamson Act contract? c) Involve other changes in the existing environment which, due to their location or nature, could result in conversion of ' Farmland, to non-agricultural use? III. AIR QUALITY: Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: a) Conflict with or obstruct implementation of the applicable air quality plan? b) Violate any air quality standard or contribute substantially to an existing or projected air quality.violation?- c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non- attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant concentrations? .. e) Create objectionable odors affecting asubstantial number '. of people? Potentially Significant Impact . Less Than Significant With Mitigation Incorporation Less Than Significant Impact [2] No Impact IV. BIOLOGICAL RESOURCES: - Would the project: a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special shams species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the California Department offish and Game or U.S. Fish and Wildlife Service? c) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? -. d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with .established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? . f) Conflict with the provisions of an adopted Habitat Conservation .Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? V. CULTURAL RESOURCES: - Would the project: a) Cause a substantial adverse change in the significance of a historical resource as defined in § 15064.5? b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to § 15064.5? c) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? d) Disturb any human remains, including those interred outside of formal cemeteries? VI. 'GEOLOGY AND SOILS: - Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving: Potentially Significant Impact Less Than Significant With Mitigation Incorporation Less Than Significant Impact [3 D. D. [5] [3 O. No Impact i) Rupture of a known earthquake fault,, as delineated on the most recent Alquist-Priolo Earthquake Fault Zoning Map issued by the State GeOlogist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. ii) Strong seismic ground shaking? iii) Seismic-related gro .trod failure, including liquefaction? iv) Landslides? b) Result in. substantial soil erosion or the loss of topsoil? · c) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liqUefaction or collapse? d) Be located on expansive soil, as del'reed in Table 18-1-B of the Uniform Building Code (1994), creating substantial risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative waste water disposal systems where sewers are not available for the disposal of waste water? VII. HAZARDS AND HAZARDOIJ.$ MATERIALS: Would the project: a) Create a significant hazard to the public or the- 'environment through the routine transport, use, or disposal of hazardous materials7 b) Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emisSions or handle hazardous or acutely hazardous materials, substances, or waste within one-quarter mile of an existing or proposed school? · d) 'Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government' Code Section 65962.5 and, as'a result, would it create a .significant hazard to the public or the environment? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in· a safety hazard for. people residing or working in the project area?' · f) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? Potentially Significant Impact [5] .~ Than Significant With Mitigation Incorporation Less Than .Significant Impact No Impact g) Impair. implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? h) Expose people or. structures to a significant risk of loss, injury Or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? VIII, HYDROLOGY AND WATER QUALITY: -Would the project: a) Violate any water quality standards or waste discharge requirements? .b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would' be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate Of pre- existing nearby wells would drop to a level which would not support existing land uses or. planned uses for which permits have been granted)?. c) Substantially alter the existing drainage pattem of the. site or area, including, through the alteration of the course of a stream or fiver, in a manner which would result in substantial erosion or siltation on- or off-site? d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or fiver, or substantially increase the rate or amount of ' surface runoff in a manner which would result in flooding on- or off-site? e) Create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff?. f) Otherwise substantially degrade water quality? g) Place housing within a lO0-year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? h) Place within a lO0-year flood hazard area structures which would impede or redirect flood flows7 i) Expose people or structures to a significant risk of loss, injury or death'involving flooding as.a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? IX. LAND USE AND PLANNING- Would the project: a) Physically divide an established community? Potentially Significant Impact Less Than Significant lVith Mitigation Incorporation Less Than Significant Impact No Impact E] [3 b) Conflict with any applicable land.use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c) Conflict with any applicable habitat conservation plan or natural community conservation plan? X. MINERAL RESOURCES- Would the project: a) Result in the loss of availability of a known mineral resource that would be of value to the region and the residents · of the state? b) Result in the loss of availability of a locally-important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? Potentially Significant Impact Less Than Significant ~th 'Mitigation Incorporation Less Than Significant impact No Impact E] E] E] E] XI, NOISE- Would the project result in: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? .. b) Exposure of persons to or generation of excessive groundbome vibration or groundbome noise levels? c) A substantial permanent increase in ambient noise levels - in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? e) For a project located within an airport land use plan. or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f). For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excess noise levels? XII,POPULATION AND HOUSING- Would' the project: a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? b) Displace substantial numbers of existing housing,' necessitating the construction of replacement housing elsewhere? " .. [3 [5] E] E] c) Displace substantial numbers of People, necessitating the construction of replacement housing elsewhere? XIII. PUBLIC SERVICES a) Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services: Fire protection? Police protection? Schools? Parks? Other public facilities? XIV. RECREATION- a) Would the project increase the use of existing neighborhood and regional parks or other recreational facilities such that. substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include recreational facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? XV. TRANSPORTATION/TRAFFIC - Would the project: a) Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i.e. result in a substantial increase in either the number of ' vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design feature (e.g. sharp curves or dangerous intersections) or 'incompatible uses '(e.g., farm equipment)? e) Result in inadequate emergency access? f) ReSult in inadequate parking capacity? Potentially Significant Impact Less Than Significant ~Vith Mitigation Incorporation [23 [23 Less Than Significant Impact No Impact [23 g) Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? XVI. UTILITIES AND SERVICE SYSTEMS- Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of whiCh could cause significant environmental effects? · . d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? e) Result in a determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and regulations related to solid waste? XVII. MANDATORY FINDINGS OF.SIGNIFICANCE a) Does the project have the potential to degrade the quality of the environment,' substantially reduce the habitat of a fish or' wildlife species, eause·a fish or wildlife population to drop below self-sustaining levels, threaten' to eliminate a plant or animal eommunity~ reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that are individually limited, but cumulatively considerable? ("Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the 'effects of past projects, the effects of other current projects, and the effects of probable future projects)? c) Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? Potentially Significant Impact Less Than Significant With Mitigation Incorporation [2 Less Than Significant Impact No Impact [2 [2 ATTACHMENT A EVALUATION OF.ENVIRONMENTAL IMPACTS ORDINANCE AND DESIGN GUIDELINES FOR ABOVEGROUND UTILITY FACILITIES ON pUBLIC PROPERTIES AND IN THE PUBLIC RIGHT-OF-WAY .BACKGROUND The City's objective in adopting the ordinance and design guidelines is to promote safety, aesthetics and land use compatibility between aboveground utility facilities and neighboring land uses. Aboveground utility facilities are typically located in the public right-of-way and highly visible because of their size and/or height, thereby potentially impacting the aesthetics of the community. Public safety could be negatively impacted if the 'utilitY facilities and their accessory equipment cabinets are overconcentrated in specific areas, close to intersections thus impacting motorist visibility, adjacent to Sensitive residential or institutional uses, obstruct traffic signals, signs or other public safety devices 'located within the City's right-of-way. The requirement of a Design Review allows the City to examine aesthetics issues .by 'analyzing items such as height and 'bulk of the facilities, colors, visibility, screening and relationship to adjacent structures, and design. There would be no physical improvement or changes in the environment as a result of the adoption of the ordinance and. design guidelines. Impacts of potential future projects would be evaluated in conjunction with each future project. 1. AESTHETICS Items a through d -~ "No impact"' The proposed ordinance and design guidelines would establish standards that mitigate impacts associated with installation of aboveground utility facilities, on public properties and in the public right-of-waY. No physical improvements are currently proposed in conjunction with the adoption of the ordinance and design guidelines. The proposed ordinance and design guidelines will not have any effects on aesthetics in the area including scenic vistas or scenic resources, including, but not limited to, trees, rocks outcropping, and historic buildings within a state scenic highway. The proposed ordinance and design guidelines will not degrade the existing visual character or quality of the plan area or its surroundings. Impacts related to any future 'proiects would be identified and evaluated in conjunction with a specific project. ' Sources: Tustin Zoning Code Tustin General Plan Mitigation/Monitoring Required: None Required A boveground Utility Ordinance and design guidelines Initial Study - Attachment A Page 2 of 8 ) . . AGRICULTURAL .RESOURCES Items a through c- "No Impact's': The proposed ordinance and design guidelines Would establish standa~'ds-that mitigate impacts associated with. installation of aboveground utility facilities on public properties and in the public right-of-way; however, no physical improvements are currently proposed in conjunction with the ordinance and design guidelines. The proposed ordinance and design guidelines will have no impacts on any farmland, nor will it conflict with existing zoning for agricultural use or a Williamson Act. contract. The ordinance and design guidelines will. not result in conversion of farmland to a non-agricultural use. Impacts related to any future Projects would be identified and evaluated in conjunction with a specific project. Sources: ..... Tustin General Plan Mitigation/Monitoring Required: None Required AIR QUALITY , Items a through e.- "No Impact. The proposed ordinance and design guidelines would establish standards that mitigate impacts associated with installation of aboveground utility facilities on public properties and in the public right-of-way; however, no physical improvements are currentlY proposed in conjunction with the ordinance and design guidelines. The ordinance and design guidelines will not conflict with or obstruct implementation of any applicable air plan, violate any air quality standard, result ina cumulatively considerable increase of any criteria pollutant as applicable by federal or ambient air quality'standard, nor will it expose sensitive receptors to substantial pollutant concentrations or create objectionable odor affecting a substantial number of people. Impacts related to any future projects would be evaluated when a specific project is proposed. Sources: South'Coast Air Quality Management District .Rules and · . Regulations 'Tustin General Plan Mitigation/MOnitoring ReqUired' None Required 4. · BIOLOGICAL RESOURCES.. Items a ,through f- "No Impact": The proposed ordinance and deSign guidelines would establish standards that mitigate impacts associated with installation of aboveground utility facilities on public properties and in the'public right-of-way; however, no physical improvements are currently proposed in .conjunction with Aboveground Utility Ordinance and design guidelines Initial Study - Attachment A Page 3 of 8 Se o the ordinance and design guidelines. No impacts to any unique, rare,, or endangered species of plant, or animal life identified in local or regional plans, policies, or regulations by the California Department of Fish and. Game or U.S. Fish and'Wildlife Service would occur as a result of this ordinance and design guidelines. Impacts related to any future projects would be evaluated when a specific project is proposed. Sources' Tustin General Plan Mitigation/Monitoring Required: None Required CULTURAL RESOURCES Items a through d -"No Impac?' The proposed ordinance and design guidelines would establish standards that mitigate impacts associated with installation of aboveground utility facilities on public properties and in the public right-of-way; however, no physical improvements are currently proposed i'n conjunction with the ordinance and design guidelines. The ordinance and design guidelines will not adversely affect any historical resources or archaeological resources or destroy or disturb a unique paleontological resource, ,human remains, or geological feature. Impacts related to any future projects would be identified and evaluated in conjunction with a specific project. Sources' Cultural Reso'urces District Tustin Zoning Code General Plan Mitigation/Monitoring Required' None Required GEOLOGY AND SOILS Items a (I), a (ii), a (iii), a (iv), b, c, d and e- "No Impact": The proposed ordinance and design guidelines would establish, standards that mitigate impacts associated with installation of aboveground utility facilities on public properties.and 'in the public right-of-way; however, no physical improvements are currently proposed in conjunction with the ordinance and design guidelines. The proposed ordinance and design guidelines will not expose people to potential adverse geologic impacts, including the risk of loss, injury, or ,death involving the rupture of a known earthquake fault, strong seismic ground shaking, landslides, soil erosion, or loss of top, soil, nor is the project on unstable or expansive soil. Impacts related to any future projects would be identified and evaluated in conjunction with a specific project. Sources' Tustin General Plan Aboveground Utility Ordinance and design guidelines Initial Study - Attachment A Page 4 of 8 . o . Mitigation/Monitoring Required: None Required HAZARD AND HAZARDOUS MATERIALS. ..... .Items a through h- "No Impact,: The proposed ordinance and design guidelines would establish standards that mitigate impacts associated with installation of aboveground utility facilities on public 'properties and in the public right-of-way; 'however, no physical improvements are currently proposed in conjunction with ".the ordinance and design guidelines. The proposed ordinance and design guidelines will not result in significant hazards (i.e. explosion, hazardous materials spill, interference with emergency response plans, wildland fires, etc.), nor is the project area located within an airport land use plan or vicinity of a private airstrip. Impacts related to future projects Would be evaluated when a specific project' is proposed. Sources' ~ , orange County Fire Authority Orange County Health Agency Tustin. Generai Plan. Mitigation/Moni.torin. g Required: None Required HYDROLOGY'AND WATER QUALITY, Items a through i.- "No Impact": The proposed ordinance and design guidelines would establish standards that mitigate impacts associated with installation of aboveground utility facilities on public properties and. in the public right-of-way; however, no physical improvements are currently proposed in conjunction with the ordinance and design guidelines. The ordinance and design guidelines will not result in any Change in the amount or direction of surface or groundWaters. Impacts related to any future projects would be identified and evaluated in conjunction with a specific project. Sources: , Tustin General Plan Mitigation/.M.,onitoring Required: None Required LAND USE AND PLANNING Items a thmuqh c- "No Impact": The proposed ordinance and design guidelines would establish standards that mitigate impacts associated with installation of aboveground utility facilities on public proPerties and in the public right-of-way.. No physical improvement is proposed in conjunction with the ordinance and design guidelines.' The ordinance and design guidelines are consistent with the Aboveground Utility Ordinance and design guidelines Initial Study- Attachment A Page 5 of 8 10. 11. intent of the City's .General Plan to provide an aesthetically pleasing'environment. The proposed ordinance and design guidelines will not physically divide an established community or conflict with any applicable habitat conservation plan. Sources' Tustin General Plan Tustin Zoning Code Mitigation/Monitoring Required.' None Required MINERAL RESOURCES Items a and b- "No Impact": The proposed ordinance and design guidelines would establish standards that mitigate imPacts associated with installation of aboveground utility facilities on public properties and in the public right-of-way. No physical improvement is proposed in conjunction with the ordinance and design guidelines. The proposed ordinance and design guidelines will not result in loss of a known'mineral resource or availability of a locally important mineral resource recovery site delineated on the general plan or other applicable land use maps. Impacts related to any future projects would be identified and evaluated in conjunction with a specific project. Sources: Tustin General Plan Mitigation/Monitoring Required' None Required NOISE , Items a through f- "No Impact": The proposed ordinance and design guidelines would establish standards that mitigate impacts associated with installation of aboveground utility facilities on public properties and in the public.right-of-way. No physical improvement is proposed in conjunction with the .ordinance and design guidelines. The proposed ordinance and design guidelines will not expose persons to' noise levels in excess of standards established in the general plan, noise ordinance and design guidelines, or excessive ground vibrations, nor will it create a permanent increase in the existing ambient noise levels. Impacts related -to anY future projects would be .identified and eValuated in conjunction with a specific project. Sources: Tustin City Code Tustin General Plan Mitigation/Monitoring Required: None Required .. Aboveground Utility Ordinance and design guidelines Initial Study - .Attachment A Page 6 of 8 12. POPULATION AND HOUSING Items a, b, and c- '."No Impact".: The proposed ordinance and design guidelines would establish standards that mitigate impacts aSsociated with installation of aboveground utility facilities on public properties and in the public right-of-way. No physical improvement is proposed in conjunction with the ordinance and design guidelines. As such no impact associated with the increase in population is anticipated. Sources: Tustin General Plan Mitigation/Monitoring Required' None Required .' 13. PUBLIC SERVICES Item a-" No Impact"' The proposed ordinance and design guidelines would establish standards that mitigate impacts associated with installation of aboveground utility facilities on public properties and in the 'public right-of-way. No physical improvement is proposed in conjunction with the ordinance and design guidelines. The proposed ordinance and design guidelines Will not create demand for alteration or addition of government facilities or services (fire and police protection, schools, parks, etc.). Impacts related to any future projects would be identified and evaluated in conjunction with a specific project. Sources: Tustin General Plan Mitigation/Monitoring Required: None Required 14'. RECREATION .Items a and b - "No Impact": The proposed ordinance and design guidelines would establish standards that mitigate' impacts associated with installation of aboveground utility facilities on public properties and in the public right~of-way. No physical improvement is proposed in conjunction with the ordinance and design guidelines. The ordinance and design guidelines would not increase demand for neighborhood parks or recreational facilities. Impacts related to any future projects would be identified and evaluated in conjunction with a specific project. Sources: Tustin General Plan Mitigation/Monitoring ,,Required,' None Required Aboveground Utility Ordinance and design guidelines Initial Study - Attachment A Page 7 of 8 15. 16. 17. TRANSPORTATION/TRAFFIC Items a through g -';No Impact,,: The proposed ordinance and design guidelines would establish standards that mitigate impacts associated with installation of aboveground utility facilities on public properties and in the public right-of-way. No physical improvement is proposed in conjunction with the ordinance and design guidelines. No alteration in the traffic .generation and circulation patterns within the project area would be affected by the proposed ordinance and design guidelines.. The proposed ordinance and design guidelines will not result in changes to air traffic patterns, emergency access, level: of service standards, or conflict with adopted policies, plans or programs supporting alternative transportation. Impacts related to any future projects would be identified and evaluated' in conjunction with a specific project. Sources: Tustin General Plan Mitiga,tion/Monitorinq Required: None Required UTILTIES AND SERVICE SYSTEMS .............. !_rems a.through g - "No ImPact"' The proposed ordinance and design guidelines would establish standards that mitigate impacts, associated with installation of aboveground utility facilities on public'properties and in the public right-of-way. No physical improvement is proposed in conjunction with the ordinance, and design guidelines. The adoption of the ordinance and design guidelines will have no impacts to water treatment, water supply, wastewater treatment, and solid waste disposal. Impacts related to any future projects would be identified and evaluated in conjunction with a specific project. Sources: , Tustin General Plan Mitigation/Monitoring Required' None Required MANDATORY FINDINGS OF SIGNIFICANCE .. Items a throuqh c- "No Impact"' The purpose of the proposed ordinance and design' guidelines is to maintain an aesthetically pleasing environment and promote the health, safety, and welfare of the community by providing standards .that mitigate impacts associated with installation of aboveground utility facilities on public proper[ies and in the public right-of-way. There would be no physical improvement or changes in the environment as a result of the adoption of the ordinance and design guidelines. Impacts of potential future projects would 'be evaluated in conjunction with each future A boveground Utility Ordinance and design guidelines Initial Study- Attachment A Page 8 of 8 project. The ordinance and design guidelines do not have the potential' to degrade the quality of the environment, achieve short-term environmental goals to the disadvantage of long-term goals, nor produce significant negative indirect or direct effects on humans. S:\CDD~JUSTINA\current planning\Environmental\aboveground facilities nd attachment A.doc COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 (7~ 4) ~ 7~-~ ~ O0 NEGATIVE DECLARATION Project Title: Design Guidelines for Aboveground Utility Facilities on public properties and in the public right- of-way. Project Location: Citywide Project Description: Adoption of new ordinance and guidelines for aboveground utility facilities on public properties and in the public right-of-way. The new ordinance and guidelines will set forth criteria and regulation for placement of utility facilities to reduce potential negative impacts on the community Project Proponent: City of Tustin, 300 Centennial Way, Tustin, CA 92780 Lead Agency Contact Person: Justina Willkom Telephone' (714) 573-3174 · The Community Development Department has conducte~l an Initial Study for the above project in accordance with the City of Tustin's procedures regarding implementation of the California Environmental Quality Act, and on the basis of that study hereby finds: That there is no substantial evidence that the project may have a significant effect on the environment. That potential significant effects were identified, but revisions have been included in the project plans and agreed to by the applicant that would avoid or mitigate the effects to a point where clearly no significant effects would occur. Said Mitigation Measures are included in Attachment A of the Initial Study which is attached hereto and incorporated herein. Therefore, the preparation of an Environmental Impact Report is not required. The Initial Study which provides the basis for this determination is attached and is on file at the Community Development Department, City of TUstin. The public is invited to comment on the appropriateness of this Negative Declaration during the review period, which begins with the public notice of Negative Declaration and extends for twenty (20) calendar days. Upon review by the Community Development Director, this review period may be extended if deemed necessary. REVIEW PERIOD ENDS 4:00 P.M. ON May 1, 2001. Elizabeth A. Binsack Community Development Director Attachment C of October 1, 2001 City Council Staff Report Ordinance No. 1232 l0 12 14 15 19 20 2! 22 23 25 26 2? 28' 29 ORDINANCE NO. 1232 AN ORDINANCE OF T-HE CITY COUNCIL OF THE CITY OF TUSTIN, AMENDING PART 6, CHAPTER 2 OF ARTICLE 7 OF THE TUSTIN CITY CODE TO ESTABLISH DESIGN REVIEW OF ABOVEGROUND UTILITY FACILITIES ON PUBLIC PROPERTY AND IN THE PUBLIC RIGHT-OF-WAY. The City Council of the City of Tustin does hereby ordain as follows' Section 1. FINDINGS The City Council of the City of Tustin finds and determines as follows' A, On December 6, 1999, the City COuncil adopted the Aboveground Cabinets Design Guidelines. These guidelines regulate aboveground cabinets for power supply equipment within the public right-of-way. These guidelines do not regulate utility facilities located aboveground such as antennas attached to utility poles, street light poles, utility towers, or other structures within the public right-of-way. B, Currently, there are no guidelines in place for aboveground utility facilities on public properties such as parks, community facilities, or other City-owned properties. New comprehensive guidelines are needed to establish design criteria prior to installation of any aboveground utility facilities on public properties or public right-of- way. ~ C, The adoption of permanent regulations and guidelines for any aboveground telecommunications on public property and in the public right-of-way will serve to reduce the potential for negative impacts on the community. D. Failure to implement aboveground utility facilities regulations through, the adoption of this ordinance will result in the installation of a substantial number of aboveground utility facilities without controls needed to protect the public health, safety, and community aesthetics. E. Traffic signal controller cabinets are exempted because they are different in nature and function and provide essential services. The traffic signal control cabinets by nature must be located where traffic can be controlled at intersections. l0 14 l? 20 2! 2.2 24 25 26 28 Ordinance No. 1232 Page 2 of 7 F. Irrigation controller cabinets are also exempted because they must be located in close proximity to available power sources. The requirements and restrictions imposed by this Ordinance are necessary to protect the health, safety, and aesthetics of the City of Tustin as follows' 1. Design Review Approval for Installation of Aboveground Utility Facilities on Public Property and in the Public Right-of-Way. The City's objective is to promote safety, aesthetics, and land use compatibility between aboveground utility facilities and neighboring land uses. Aboveground utility facilities are typically located in the public right-of-way and highly visible because of their size and/or height, thereby potentially impacting the aesthetics of the community. Public safety could be negatively impacted if the aboveground utility facilities and their accessory equipment cabinets are: overconcentrated in specific areas, close to intersections thus impacting motorist visibility; adjacent to sensitive residential or institutional uses; obstruct traffic signals, signs, or other public safety devices located within the public right-of-way. The requirement of a Design Review allows the City to examine aesthetics issues by analyzing items such as height and bulk of the facilities, colors, visibility, screening and relationship to adjacent structures, and design. 2. Screening Criteria and Guidelines. The City's objective is to promote and protect safety and the aesthetic environment by requiring the use of subdued colors, non-reflective materials, and screening of the aboveground utility facilities and their accessory equipment with landscape materials. 3. Site Selection Order of Preference. The City's objective is to promote and protect safety and the aesthetic environment by requiring that aboveground utility facilities be located in areas that are the least obtrusive. 4. Sign Restrictions. The City's objective is to promote safety and aesthetics by promoting information necessary to be provided at the facilities while restricting sign clutter. 1 Removal Required for Abandoned Facilities. The City's objective is to promote and protect an aesthetic and safe environment by requiring that facilities be removed within ninety (90) days if they are not in use. Abandoned facilities that are l0 12 14 l? t8 20 2! 24 25 2d 2? Ordinance No. 1232 Page 3 of 7 not promptly removed would contribute to the blighting of the community and would present potential safety hazards related to vandalism and unauthorized use of the abandoned facilities. G, That the Planning Commission considered this Ordinance on September 10, 2001, and recommended that the City Council adopt this enabling Ordinance. H, That a public hearing was duly noticed, called, and held on said Ordinance on.October 1,2001, by the City Council. That the proposed ordinance is consistent with the General Plan Land Use goals and policies, particularly: Goal 1' Goal 4: Policy 6.2' Policy 6.12' Policy 8.3' Policy 8.6' Provide for a well balanced land use pattern that accommodates existing and future needs for housing, commercial, and industrial land, open space, community facilities and services, while maintaining a healthy, diversified economy adequate to provide future City services; Assure a safe, healthy, and aesthetically pleasing community for residents and businesses; Encourage and promote high quality design and physical appearance in all development projects; Review and revise, as necessary, the City's development standards to improve the quality of new development in the City and to protect the public health and safety. Coordinate the construction of all public utilities to minimize disruption of vehicular traffic and negative impacts on roadways. Encourage planned improvements to electricity, natural gas, and communication services systems. J, A Final Negative Declaration has been adopted for this Ordinance in accordance with the provisions of the California Environmental Quality Act (CEQA). Section 2. Ordinance No. 1213 and Part 6 Chapter 2 of Article 7 of the Tustin City Code are hereby amended to read as follows: PART 6 DESIGN REVIEW OF ABOVEGROUND UTILITY FACILITIES ON PUBLIC PROPERTY AND IN THE PUBLIC RIGHT-OF-WAY l0 14 l? 20 2! 22 24 25 2? 28 Ordinance No. 1232 Page 4 of 7 7260 PURPOSE AND FINDINGS The purpose of this Part 6 is to maintain a safe and aesthetically pleasing environment in the public right-of-way and on City-owned properties by regulating the location, color, screening, and other aspects of aboveground utility facilities. Aboveground utility facilities come in a variety of forms that include, but are not limited to, cables, wires, conduits, ducts, pedestals, and antennae to transmit, receive, distribute, provide, or offer utility services. Their accessory equipment typically is contained in enclosures, cabinets, artificial rocks, or boxes to house a variety of uses such as controls for signals, electronics and wiring for cable television and telecommunications, or power sources. Often these facilities are located aboveground on existing structures such as utility or light poles and have the tendency to proliferate to ensure user coverage. Such proliferation can result in visual clutter, blocking visibility to signs and other structures, preventing access for the disabled, distracting motorists travelling along the right-of-way, and can be noisy. Reasonable regulations for locating the aboveground utility facilities and their accessory equipment are necessary to promote the health and aesthetic welfare of the people of Tustin. Reasonable compensation for permitting private use of public property and the public right-of-way is also necessary to offset the right-of-way maintenance costs. 7261 LEASE AGREEMENT REQUIRED No person shall place, construct, install, own, control, operate, manage, maintain, or use any aboveground utility facilities and their accessory equipment in, above, beneath, or across any public property, exclusive of the public right-of-way, without first obtaining a Lease Agreement or License in accordance with the Design Guidelines. Franchises and Right- of-Way Agreements for telecommunication facilities in the public right-of- way are governed by State and Federal regulations and pertinent provisions of Chapter 7 of Article 7 of the Tustin City Code. 7262 DESIGN REVIEW REQUIRED No person shall place, construct, install, own, control, operate, manage, maintain, or use any aboveground utility facilities and their accessory equipment without compliance with the Design Review requirements in Tustin City Code Section 9272 and with this Part 6. This requirement applies to existing and future franchisees and any other person who wishes to locate replacement or new aboveground utility facilities and their l0 14 l? 19 20 2! 22 24 25 26 27 28 Ordinance No. 1232 Page 5 of 7 accessory equipment on public property and in the public right-of-way. Aboveground utility facilities' located within Redevelopment Project areas shall be consistent with the respective redevelopment plans. No Design Review approvals or any permits can be issued unless the Redevelopment Agency can make a finding of conformity. Existing aboveground utility facilities and accessory equipment installed prior to the effective date of this ordinance shall not be subject to this requirement. 7263 APPLICATION FOR DESIGN REVIEW An applicant shall submit a plan of the proposed location of all aboveground utility facilities including their accessory equipment located in cabinets, enclosures, or boxes to the Director of Community Development ("Director"). Information shall also be provided as to the dimensions, proposed colors, screening materials, noise levels, and whether there will be interference with the public radio system anticipated. The applicant shall pay a fee to cover the anticipated staff time to review and process the application. 7264 DESIGN REVIEW PROCESS Upon the application being found complete by the Director, or designee, the Director or designee shall review the plan (the "Plan") using the criteria set forth in the Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-way adopted by resolution of the City Council. If the utility facilities are to be located within redevelopment areas, then a finding of conformity by the Redevelopment Agency would need to be made prior to the Director consideration of the Design Review. The Director may conditionally approve or deny the application. Amendments to the Plan shall be reviewed and approved by the Director concurrent with or prior to issuance of an encroachment permit, Lease Agreement or License, as provided for in the Design Guidelines, or Right-of-Way Agreement as defined in Chapter 7 of Article 7 of the Tustin City Code. The aboveground utility facilities and their accessory equipment must be installed pursuant to the approved Plan. The noise generated from the aboveground utility facilities, including their accessory equipment, shall comply with the City's noise regulations. 7265 APPEALS Appeals of the Director's decisions may be taken and heard in accordance with Section 9272(f)of the Tustin City Code. l0 14 16 17 19 20 23 24 26 2'/ 28 Ordinance No. 1232 Page 6 of 7 7266 TERM/ABANDONMENT (a) An aboveground utility facility is considered abandoned if it no longer provides service. If the use of the facility is discontinued for any reason, the operator shall notify the City of Tustin in writing no later than thirty (30) days after the discontinuation of use. If no notification is provided to the City, the facility shall be deemed discontinued. (b) Aboveground utility facilities, including their accessory equipment, that are no longer being used shall be removed promptly no later than ninety (90) days after the discontinuation of use. Such removal shall be in accordance with proper health and safety requirements.. All affected areas shall be restored to their original condition at the operator's expense. (c) The Design Review approval shall remain valid for the term of the Lease Agreement, License, Right-of-Way Agreement, or as long as the encroachment permit is valid. If the Lease Agreement, License, Right-of-Way Agreement, or Encroachment Permit is terminated, notice and evidence thereof shall be provided to the Director. Upon termination or expiration of the Lease Agreement, License, Right- .of-Way Agreement, or Encroachment Permit, the aboveground utility facilities, including their accessory equipment, shall be removed from the public property or the public right-of-way. Section 3. SEVERABILITY All of the provisions of this ordinance shall be construed together to accomplish the purpose of these regulations. If any provision of this part is held by a court to be invalid or. unconstitutional, such invalidity or unconstitutionality shall apply only to the particular facts, or if a provision is declared to' be invalid or unconstitutional as applied to all facts, all of the remaining provisions of this ordinance shall continue to be fully effective. PASSED AND ADOPTED by the City Council of the City of Tustin at a regular meeting on the 1st day of October, 2001. Tracy Wills Worley, Mayor Pamela Stoker City Clerk l0 14 l? 20 2! 22 24 25 2? 29 Ordinance No. 1232 Page 7 of 7 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO. 1232 PAMELA STOKER, City Clerk and ex-officio of the City Council of the City of Tustin, California, does hereby certify that the whOle number of the members of the City Council is five; that the above and foregoing Ordinance No. 1232 was duly and regularly introduced at a regular meeting of the Tustin City Council, held on the 1st day of October, 2001 and was given its second reading, passed and adopted at a regular meeting of the City Council held on the 15th day of October, 2001 by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: Pamela Stoker, City Clerk Attachment D of October 1, 2001 City Council Staff Report Resolution No. 01-95 RESOLUTION NO. 01-95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA AMENDING RESOLUTION NO. 99-84 BY ADOPTING DESIGN GUIDELINES FOR ABOVEGROUND UTILITY FACILITIES AND THEIR ACCESSORY EQUIPMENT ON PUBLIC PROPERTY AND IN THE PUBLIC RIGHT-OF-WAY. The City Council of the City of Tustin does hereby resolve as follows: The City Council finds and determines as follows' Al That telephone, internet, cable, and personal wireless telephone (cellular) servicing the City are expanding and upgrading their services and will require installation of additional equipment such as abovegroUnd accessory equipment, antennas attached to utility poles, street light poles, or other structures on public properties or in the public right-of-way. Bi On December 6, 1999, the City Council adopted the Aboveground Cabinets Design Guidelines. These guidelines regulate aboveground cabinets for power supply equipment within the public right-of-way. These guidelines do not regulate utility facilities located aboveground such as antennas attached to utility poles, street light poles, utility towers, or other structures within the public right-of-way. Gl Currently, there are no guidelines in place for aboveground utility facilities on public properties such as parks, community facilities, or other City-owned properties. New comprehensive guidelines are needed to establish design criteria prior to installation of aboveground utility facilities on public properties or in the public right-of-way. Bi That guidelines and development standards are needed to promote and protect the public health, safety, and general welfare and preserve and enhance the quality of the City relating to the orderly development of aboveground utility facilities and their accessory equipment. E,, That a public hearing was duly called, noticed, and held by the Planning Commission on September 10, 2001, and the Planning Commission recommended approval of the Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-Way and Ordinance No. 1232. Resolution No. 01-95 Page 2 of 14 II. Fi That a public hearing was duly called, noticed, and held by the City Council on October 1,2001. In adopting the Design Guidelines for Aboveground Utility Facilities on Public Property and in the Public Right-of-Way, the City Council finds and determines: That the guidelines provide standards that mitigate impacts typically associated with installation of aboveground utility facilities and their accessory equipment on public property and in the public right-of- way, including measures to reduce their visual imPact. B, That the guidelines require approval of an Encroachment Permit and/or Design Review process which would ensure that aboveground utility facilities and their accessory equipment are developed in an orderly manner with respect to location, size, and screening. Gl Traffic signal controller cabinets are exempted because they are different in nature and function and provide essential services. The traffic signal control cabinets by nature must be located where traffic can be controlled at intersections. Irrigation controller cabinets are also exempted because they must be located in close proximity to available power sources. Bi That fair and reasonable compensation shall be secured for permitting private use of public properties by utility providers. El That it is appropriate for the City Manager, on. behalf of the City Council, to accept discretionary applications for use of public properties and/or public right-of-way. Fi That the Director of Community Development should be authorized to approve, approve with conditions, or deny the Design Review application in accordance with the Design Guidelines adopted herein. For projects located within redevelopment project areas, the Redevelopment Agency shall make a finding of conformity to the respective redevelopment plans concurrently or prior to consideration of the Design Review application. No Design Review approvals shall be granted without a finding of conformity by the Redevelopment Agency. G A Final Negative Declaration has been prepared and adopted in accordance with the provisions of the California Environmental Quality Act (CEQA). Resolution No. 01-95 Page 3 of 14 III. The City Council hereby amends Resolution No. 99-84 by adopting the Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-Way attached hereto as Exhibit "A" to be followed when considering an Encroachment Permit and/or Design Review application for the installation of aboveground utility facilities and their accessory equipment on public properties and in the public right-of-way. PASSED AND ADOPTED at a regular meeting of the Tustin City Council, held on the 1st day of October, 2001. Tracy Wills Worley Mayor Pamela Stoker City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 01-95 was duly passed and adoPted at a regular meeting of the Tustin City Council, held on the l't day of October, 2001 by the following vote; COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: Pamela Stoker City Clerk Exhibit A of Resolution No. 01-9'5 Design Guidelines for Aboveground Utility Facilities on Public Properties and in the Public Right-of-way EXHIBIT A DESIGN GUIDELINES FOR ABOVEGROUND UTILITY FACILITIES ON PUBLIC; PROPERTIES AND IN THE PUBLIC; RIGHT-OF-WAY SECTION 1' PURPOSE AND INTENT The purpose of these guidelines is to implement Part 6 of Chapter 2 of Article 7 of the Tustin City Code (Ordinance No. 1232) and regulate the placement and design of aboveground utility facilities and their accessory equipment' in conjunction with any City- permitted use of public properties and public right-of-ways. These guidelines are intended to protect the health, safety, aesthetics, and welfare; and secure fair and reasonable compensation for permitting private use of public property. SECTION 2: DEFINITIONS For purposes of these guidelines, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used indicates otherwise. "Aboveground Accessory Equipment" or "Accessory Equipment" means any aboveground equipment located in enclosures, cabinets, artificial rocks, boxes, or other structures to facilitate the operation of their associated utility facilities. "Aboveground Utility Facility" or "Utility Facilities" means any aboveground public or private plant, equipment, and property including, but not limited to, cables, wires, conduits, ducts, pedestals, antennae, utility poles, street light poles, utility towers, or other structures and their supports, electronics, and other appurtenances used or to be used to transmit, receive, distribute, provide, or offer utility services. This includes facilities for personal wireless services as defined in the Telecommunication Act of 1996, 47 U.S.C. § 332(c)(7). "City" means the City of Tustin. "Council" means the City Council of the City of Tustin. "Co-location" means the locating of more than one aboveground utility facility provider on a single structure-mounted, roof-mounted, or ground-mounted utility facility. "Director" means the Community Development Director of the City of Tustin. "Grantee" means a person who has been granted a Lease Agreement or License pursuant to this policy and guidelines. "Interference" means any instances of interference with public safety radio equipment preventing clear radio reception which includes, but is not limited to, static, unwanted signal, and distortion of sounds or reception. Exhibit A of Resolution No. 01-95 Page 5 of 14 "Lease Agreement or License" means a contract agreement between the City and a person pursuant to this policy and guidelines. The contract may be in the form of a lease if the City owns a fee interest in the property or in the form of a license if the City has a leasehold interest in the property. "Person" means and includes, but is not limited to, corporations, companies or associations, firms, partnerships, limited liability companies, and individuals and includes their lessors, trustees, receivers, and successors in interest. "Public property" means any property in which the City of Tustin and/or the City's Redevelopment Agency holds a legal interest, except the public right-of-way. "Public right-of-way" means and includes all public streets, easements now or hereafter owned in fee or easement by the City. sidewalks, and utility "Public Works Director" means the Director of Public Works of the City. "Stealth Facility" means any aboveground utility facility which is disguised to appear as another natural or artificial man-made object that is prevalent in the surrounding environment or which is architecturally integrated into a building or other concealing structure. "Utility Provider" means and includes any person that proposes to or does own, control, operate, or manage plant, equipment, or any other facility on public property or in the public right-of-way for the provision of an utility service. "Utility Service" means and includes any electrical, gas, heat, water, telephone, pipeline, sewer, or telegraph services or commodity, where the service is performed for, or the commodity delivered to, the public or any portion thereof. SECTION 3: APPLICABILITY These guidelines regulate the installation of new and replacement aboveground utility facilities and their accessory equipment on public properties or in the public right-of- way. SECTION 4: PROCESS 4.1 Application Process The City Manager or designee may accept a discretionary application for use of public property and/or Public right-of-way for aboveground utility facilities and process the application in accordance with Tustin City Code Section 9272 related to the Design Review process. At the City Manager's sole discretion, a request to submit an application may be denied. Authorization to submit an application does not commit the City to approve the proposed use. Exhibit A of Resolution No. 01-95 Page 6 of 14 4.2 Upon the application being found complete by the Community Development Director ("Director") or designee, using the criteria set forth in these guidelines and Tustin City Code Section 9272, the Director may approve, conditionally approve, or deny the application. The Director reserves the right to, or if required will, forward any application to the Planning Commission and/or City Council for consideration and action. For projects located within redevelopment project areas, a finding of conformity to the respective redevelopment plans shall be made concurrently or prior to consideration of the Design Review application. No approvals shall be granted unless the Redevelopment Agency can make a finding of conformity. Upon the approval of the application, the Grantee shall obtain all applicable permits prior to installation of the aboveground utility facilities and their accessory equipment including, but not limited to, Lease, License, Right-of-Way Agreement under Chapter 7 of Article 7 of the Tustin City Code, electrical permit, building permit, encroachment permit, owner authorization, and other required permits by the .City or any other agencies such as Federal Aviation Administration (FAA), Federal Communication Commission (FCC), Public Utility Commission (PUC), or other County, State or Federal agencies. However, existing franchises or agreements need not be reconsidered by the City Council unless the franchise agreement requires such consideration. Design Review al Design Review approval in accordance with Tustin City Code Section 9272, shall be required prior to the placement, construction, installation, operation, establishment, or modification of any aboveground utility facilities on public property and in the public right-of-way. b= A Design Review application shall be accompanied with a statement to indicate that the utility facilities will not interfere with the Public Safety Radio Equipment. If interference occurs after the installation, the utility providers shall take immediate action to eliminate the interference and pay all associated fees for compliance. Gl Design Review approval shall remain valid for the term of the Lease Agreement or License and/or Right-of-Way Agreement including any extension thereof or as long as the encroachment permit is valid. Upon termination or expiration of the Lease Agreement or License, Encroachment Permit, Right-or-.Way Agreement or upon the failure of Grantee to build the facility within 180 days of its approval, the Design Review approval for the facility shall become null and void and the facility shall be removed within thirty (30) days from such termination or expiration. Exhibit A of Resolution No. 01-95 Page 7 of 14 d, Design Review approval for aboveground accessory equipment associated with the operation of the utility facilities shall be considered in accordance with the process and criteria as outlined in Section 7 of these guidelines. e,, In addition to the information requested in the Development Application Form, the following items shall be required for an aboveground utility facility: · A statement providing .the reason for the location, design, and height of the proposed aboveground utility facilities; Evidence satisfactory to the City demonstrating location or co- location unfeasible on existing structures, light or utilities poles/towers, and existing 'sites for reasons of structural support capabilities, safety, available space, or failing to meet service coverage area needs; = A photo simulation of the proposed aboveground utility facility in true scale. 1 A site plan showing the locations of all proposed and existing aboveground utility facilities. 1 A screening plan showing the specific placement of landscaping or any other proposed screening materials to be used to screen the aboveground utility facilities, including the proposed color(s); and, J A signed statement that the applicant agrees to allow for co- location of additional aboveground utility facilities on the same structures or within the same site location, or whether such co- location is unfeasible, and the reasons for such unfeasibility. SECTION 5: DEVELOPMENT GUIDELINES Aboveground utility facilities on public property and in the public right-of-way shall be placed in locations where there is little or no interference with public use of the properties and the rights or reasonable convenience of property owners who adjoin the properties. Aboveground accessory equipment located inside cabinets, enclosures, artificial rocks, boxes, or other structure shall be subject to criteria listed in Section 7 of these guidelines. The following criteria shall apply: al Stealth Facility. Abovegmund utility facilities shall be designed as stealth facilities with concealed antennas to be placed within existing structures such as buildings, utility poles, light poles, utility towers, freestanding signs, score boards, towers, or fencing and shall blend into the surrounding environment or be architecturally integrated. Exhibit A of Resolution No. 01-95 Page 8 of 14 b, Co-location. Aboveground utility facilities shall be co-located with existing aboveground utility facilities where possible, Whenever any existing utility facilities are located underground within the public right-of-way, the utility providers with permission to occupy the same public right- of-way shall co-locate their utility' facilities underground. C~ Colors. Any part of aboveground utility facilities visible to public view shall have subdued colors and non-reflective materials which blend with surrounding materials and colors and shall be covered with an anti-graffiti material. Screenings. For building- or structure-mounted facilities, screening shall be compatible with the existing architecture, color, texture, and/or materials of the building or structure. el Landscaping. When landscape screening is proposed or required, the landscaping shall be compatible with the surrounding landscape area and shall be a type and variety capable of screening the aboveground utility facilities. All landscaping areas shall be adequately maintained which include, but not limited to' trimming, mowing, weeding, removal of litter, fertilizing, regular watering, and replacement of diseased or dead plants. Signs. Any signs attached to aboveground utility facilities shall comply with the City of Tustin Sign Code. g, Accessory Equipment. Accessory equipment associated with the operation of the utility facilities shall be designed, located and be made part of the structures (i.e. as part of the base or support structure) or be located within buildings, enclosures, or cabinets in accordance with Section 7 of these guidelines. he Required Removal. The City, in accordance with the Lease Agreement or License, Right-of-Way Agreement, or Encroachment permit, as applicable, reserves the right to require the removal or relocation of any aboveground utility facility when determined to be necessary to protect public health, safety, and welfare by giving ninety (90) days notice. Undergrounding.. The City reserves the right to require that all utility facilities including their accessory equipment be placed underground when technologically feasible. SECTION 6' DEVELOPMENT STANDARDS Development standards including height limits for any aboveground utility facility on public property and in public right-of-way shall be determined pursuant to the Design Review process. Exhibit A of Resolution No. 01-95 Page 9 of 14 SECTION 7: ABOVEGROUND ACCESSORY EQUIPMENT Aboveground accessory equipment for aboveground utility facility located inside cabinets, enclosures, artificial rocks, boxes, or other structure shall be subject to the following criteria: 7.1 Process a~ Replacement Aboveground Accessory Equipment that are the Same Size as Existing Aboveground Accessory Equipment. Installation of replacement aboveground accessory equipment shall be approved in conjunction with issuance of an Encroachment Permit provided the replacement aboveground accessory equipment is the same size or smaller than the existing aboveground accessory equipment and the aboveground accessory equipment complies with the height requirements set forth in Section 7.3 herein. b. New Aboveground Accessory Equipment or Replacement Aboveground ' Accessory Equipment that are Larger than Existing Aboveground Accessory Equipment. Installation of new aboveground accessory equipment or replacement aboveground accessory equipment that are larger than the existing aboveground accessory equipment may be approved in conjunction with issuance of a concurrent Encroachment Permit/Design Review application, provided that each the following requirements are met: · No aboveground accessory equipment may be located adjacent to a front-yard area of a residentially zoned or used property. w The aboveground accessory equipment complies with the height requirements set forth in Section 7.3 herein. 3. The aboveground accessory equipment complies with the requirements of the Americans with Disabilities Act. e No aboveground accessory equipment may be located in an area that obstructs line of sight at an intersection, driveway, or alley. Gl Comprehensive Manual in Lieu of a Design Review. · A comprehensive manual may be submitted in lieu of a Design Review application for new or replacement aboveground accessory equipment that meet each of the requirements of Section 7.1(b) above. The manual shall contain sufficient information to verify compliance with the above requirements such as type and size of the proposed aboveground accessory equipment. When a project Exhibit A of Resolution No. 01-95 Page 10 of 14 is located within redevelopment project areas, the comprehensive manual shall also be submitted to the Redevelopment Agency for finding of conformity to the respective redevelopment plans. Upon approval of the comprehensive manual, the applicant shall obtain an Encroachment Permit. The Community Development and Public Works Departments shall review the Encroachment Permit application. 1 Installation of aboveground accessory equipment in accordance with an approved comprehensive manual shall not be subject to a Design Review process. al New Aboveground Accessory Equipment or Replacement Aboveground Accessory Equipment that cannot comply with Requirements for Concurrent Encroachment Permit/Design Review [Section 7. l(b)] Installation of new aboveground accessory equipment or replacement aboveground accessory equipment that are larger than the existing aboveground accessory equipment and cannot comply with the requirements for a concurrent Encroachment Permit/Design Review [Section 7.1(b)] require a Design Review prior to issuance of Encroachment Permits. e. System Upgrades System upgrades which require substantial installation of new and replacement aboveground accessory equipment shall require Design Review approval prior to issuance of Encroachment Permits when Design Review is required by these guidelines. ^ comprehensive Master Plan depicting the locations of all new and replacement aboveground accessory equipment shall be submitted concurrently with the Design Review application. 7.2. Development Guidelines Location, size, and screening of proposed aboveground accessory equipment will be considered by the Community Development Department in accordance with the following criteria' a. Location 1. Whenever feasible, accessory equipment should be installed underground. If it is not technologically feasible to install an accessory equipment underground, the utility provider shall submit a letter of explanation regarding the hardship associated with or unfeasibility of underground installation. One letter may be included in the comprehensive manual described in Section 7.1(c) for all proposed accessory equipment within the manual. Exhibit A of Resolution No. 01-95 Page 11 of 14 m When underground installation is not feasible, the following order of preference shall be considered for aboveground installation of accessory equipment of any size: a. Aboveground accessory equipment should be designed as stealth facility. b! Aboveground accessory equipment should be located adjacent to non-residential properties in an area where no modification to the existing right-of-way would be required and existing landscaping is present to screen the accessory equipment. C, Aboveground accessory equipment should be located adjacent to side or rear yards of residential properties, preferably on major streets where no modification to the. existing right-of-way would be required and existing landscaping is present to screen the accessory equipment. d. Aboveground accessory equipment should be located as closely as possible to the shared property line between the front yards of residential properties where no sight distance from driveways would be obstructed. 3. Consideration shall be given to the humber of existing aboveground accessory equipment within a particular area and over- concentration of aboveground accessory equipment shall be avoided. Over-concentration is defined as more than one (1) aboveground accessory equipment installed adjacent to the same side of a property. If a sufficient distance separation is not technologically feasible: a. Aboveground accessory equipment shall be located as far as possible from existing aboveground accessory equipment; and, b. The accessory equipment owner/installer shall submit a letter of explanation regarding the hardship associated with or unfeasibility of installing the aboveground accessory equipment at a sufficient distance from an existing aboveground accessory equipment. e Aboveground accessory equipment located in parkway areas should be located at the same distance from the curb as other aboveground accessory equipment along the parkway to create a uniform Setback distance and appearance. Exhibit A of Resolution No. 01-95 Page 12 of 14 7.3 7.4 7.5 Si Aboveground accessory equipment shall not: a. Obstruct line of sight requirements driveways; at intersections or b. Obstruct or hinder opening of vehicle doors; Gl Obstruct disabled access along public sidewalks to the extent that a minimum of four (4) feet clear sidewalk would not be maintained; d. Interfere with any existing or proposed improvement projects. Height am The height of.any replacement aboveground accessory equipment that are larger than existing or new aboveground accessory equipment to be located adjacent to the front, side, or rear yards of residentially zoned properties may not exceed the permitted height of fencing as determined at the property line in residentially zoned areas. be The height of any replacement aboveground accessory equipment that are larger than existing or new aboveground accessory equipment located in non-residential areas will be considered on a case-by-case basis. Screening al In residentially zoned areas, aboveground accessory equipment shall be enclosed or screened to match or complement surrounding features such as fencing, buildings, or landscaping. The use of a matching accessory equipment color or applied paint, texturing, or faux finishing, or other techniques shall be applied in accordance with manufacturer. recommendations. b. The use of crash posts is discouraged. However, if shown to be necessary, the exterior finish of the crash post should be painted the color of the aboveground accessory equipment. C. Access openings shall face away from street frontages whenever feasible. STANDARD CONDITIONS OF APPROVAL al Noise emanating from an aboveground accessory equipment shall not exceed the City's adopted Noise Ordinance standards. b,, The accessory equipment owner company shall file the accessory equipment identification number, company name, person responsible for Exhibit A of Resolution No. 01-95 Page 13 of 14 maintenance of the accessory equipment, and the phone number with the Public Works Department. This information may be included in the comprehensive manual described in Section 7.1(c) of these guidelines. C, The aboveground accessory equipment shall not bear any signs of advertising devices (other than certification, warning, or other required seals or signage). d, Aboveground accessory equipment shall be constructed or treated with appropriate materials which discourage or repel graffiti and the accessory equipment owner shall be responsible for removing graffiti from accessory equipment within forty-eight (48) hours. Accessory equipment owners shall be responsible for costs associated with any necessary enforcement action related to graffiti removal. el Any removal of landscaping necessary to install the aboveground accessory equipment shall be replaced with landscaping materials similar in number, type, and size as approved by the Directors of Community Development and Public Works. gl The utility provider or accessory equipment installing entity shall be responsible for reconstruction of in-kind facilities within the Public right-of- way that are damaged or modified during installation of aboveground accessory equipment. , Prior to installation, the utility provider shall provide notification to adjacent property owners within a one hundred (100).foot radius indicating the type, location, and size of aboveground accessory equipment that will be installed and the estimated start and ending dates of construction. hi The aboveground accessory equipment shall be constructed of a material that will be rust resistant (i.e. stainless steel, etc.). The utility provider shall be responsible for treating any rust by either repainting or any other method recommended by the manufacturer that eliminates the rust. SECTION 8' ABANDONMENT A abovegr°und utility facility and/or its accessory equipment is considered abandoned if it no longer in service or is in default pursuant to default provisions in any lease agreement, license, Right-of-way Agreement or any other applicable agreements or licenses. ^ written notice of the determination of abandonment by the City shall be sent or delivered to the Grantee. The Grantee shall have ninety (90) days to remove the facility at the Grantee's sole cost and expense or provide the Community Development Department with evidence that the use has not been discontinued. Such removal shall be in accordance with proper health and safety requirements. If the use of the aboveground utility facility and/or its accessory equipment is discontinued for any reason, the Grantee shall notify the City of Tustin in writing no later Exhibit A of Resolution No. 01-95 Page 14 of 14 than thirty (30) days after the discontinuation of use. Aboveground utility facilities and their accessory equipment that are no longer being used shall be removed within ninety (90) days after the discontinuation of use. Such removal shall be in accordance with health and safety requirements. ,All disturbed areas shall be restored to original conditions at the Grantee's expense. If the facility is not removed within the required ninety (90) day period, the City shall be entitled to remove the facility at the Grantee's sole cost and expense. The Grantee shall execute such documents of title to convey all right, title, and interest in the abandoned aboveground utility facility and its accessory equipment to the City. SECTION 9' LEASE AGREEMENT OR LICENSE All persons wishing to construct, attach, install, operate, maintain, or modify a aboveground utility facility and its accessory equipment on public property, exclusive of the public right-of-way, in which the City has ownership, easement, leasehold, or any other possessory interest after approval of a Design Review application shall obtain a Lease Agreement or License and any other approval required under these guidelines. A lease Agreement or License shall be subject to approval of the City Attorney's office and the City Manager's office as to the specific terms and conditions required. S :\CDD\CCRESOS\01-95.doc