17.10.130 SPECIAL PROVISIONS FOR SECTION 6409 APPROVALS.

(a) Applicability. This Section applies to all requests for approval to collocate, replace or remove transmission equipment at an existing wireless tower or base station located in the public rights-of-way submitted pursuant to Section 6409. However, the applicant may voluntarily elect to seek a major or minor wireless permit under Section 17.10.030.

(b) Additional Section 6409 Definitions. In addition to the definitions in Section 17.10.020, the abbreviations, phrases, terms and words used in this Section will have the following meanings assigned to them unless context indicates otherwise. Undefined phrases, terms or words in this section will have the meanings assigned to them in 47 U.S.C. § 153, as may be amended from time to time, and, if not defined therein, will have their ordinary meanings. In the event that any definition assigned to any phrase, term or word in this section conflicts with any federal or state-mandated definition, the federal or state-mandated definition will control.

(1) "eligible facilities request" means the same as defined by the FCC in 47 C.F.R. § 1.40001(b)(3), as may be amended.

(2) "eligible support structure" means the same as defined by the FCC in 47 C.F.R. § 1.40001(b)(4), as may be amended.

(3) "existing" means the same as defined by the FCC in 47 C.F.R. § 1.40001(b)(4), as may be amended.

(4) "site" means the same as defined by the FCC in 47 C.F.R. § 1.40001(b)(6), as may be amended.

(5) "substantial change" means the same as defined by the FCC in 47 C.F.R. § 1.40001(b)(7), as may be amended.

(c) Required Approval. Any request to collocate, replace or remove transmission equipment at an existing wireless tower or base station located in the public right-of-way submitted with a written request for approval under Section 6409 shall require an administrative approval in such form determined by the Director consistent with all valid and enforceable terms and conditions of the underlying permit or other prior regulatory authorization for the tower or base station (each amendment a "section 6409 approval"). Each section 6409 approval shall be subject to the Director's approval, conditional approval or denial without prejudice pursuant to the standards and procedures in this Section. However, the applicant may voluntarily elect to seek a major or minor wireless permit subject to the general standards and procedures in this Chapter.

(d) Decisions; Appeals.

(1) Administrative Review. The approval authority shall administratively review a complete and duly filed application for a section 6409 approval, and may act on such application without prior notice or a public hearing.

(2) Decision Notices. Within five days after the approval authority acts on an application for a section 6409 approval or before the FCC Shot Clock expires (whichever occurs first), the approval authority shall send a written notice to the applicant. In the event that the approval authority denies the application, the written notice to the applicant must contain: (1) the reasons for the decision; (2) a statement that denial will be without prejudice; and (3) instructions for how and when to file an appeal.

(3) Required Findings for Approval. The approval authority may approve or conditionally approve any application for a section 6409 approval when the approval authority finds that the proposed project:

(A) involves collocation, removal or replacement of transmission equipment on an existing wireless tower or base station;

(B) does not substantially change the physical dimensions of the existing wireless tower or base station; and

(4) Criteria for Denial without Prejudice. Notwithstanding any other provision in this Chapter, and consistent with all applicable federal laws and regulations, the approval authority may deny without prejudice any application for a section 6409 approval when the approval authority finds that the proposed project:

(A) does not meet the findings required in Section 17.10.130(d)(3);

(B) involves the replacement of the entire support structure; or

(C) violates any legally enforceable law, regulation, rule, standard or permit condition reasonably related to public health or safety.

(5) Conditional Approvals. Subject to any applicable limitations in federal or state law, nothing in this Section is intended to limit the approval authority's authority to conditionally approve an application for a section 6409 approval to protect and promote the public health and safety.

(6) Appeals. Any applicant may appeal the approval authority's written decision to deny without prejudice an application for section 6409 approval. The written appeal together with any applicable appeal fee must be tendered to the City Clerk within ten calendar days from the approval authority's written decision and must state in plain terms the grounds for reversal and the facts that support those grounds. The City Manager shall be the appellate authority for all appeals from the approval authority's written decision to deny without prejudice an application for section 6409 approval. The City Manager shall review the application de novo; provided, however, that the City Manager's decision shall be limited to only whether the application should be approved or denied in accordance with the provisions in this Section and any other applicable laws. The City Manager shall issue a written decision that contains the reasons for the decision, and such decision shall be final and not subject to any further administrative appeals.