HomeMy WebLinkAboutCC Ordinance No. 25-2276 adding City Code Title 14 Chapter 14.30 Small Wireless Facilities In Public Rights-Of-Way1 01276.0006 2037689.1
ORDINANCE NO. 25-2276
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AMENDING CITY CODE BY ADDING CHAPTER 14.30 - SMALL WIRELESS
FACILITIES IN PUBLIC RIGHTS-OF-WAY
The City Council of the City of Cupertino finds that:
WHEREAS, the rapid expansion of small wireless facilities in the City’s public rights of
way has created a need to establish ordinances and regulations to ensure the orderly
construction of this infrastructure within the City and to protect the unique aesthetic
characteristics of the City; and
WHEREAS, the City Council of the City of Cupertino has considered the regulation of
small wireless facilities at various City Council meetings, including meetings held on
May 16, 2017, May 15, 2018, July 16, 2019, May 5, 2020, September 15, 2020, April 20, 2021,
and December 16, 2022, and
WHEREAS, the City Council included the further evaluation of an ordinance to regulate
small wireless communication facilities in its City Work Program for fiscal years 2022-23,
2024-25, and the current City Work Program for 2025-26, and
WHEREAS, the City Council provided direction on a draft ordinance presented at the
December 16, 2022 meeting, and that input has been incorporated herein, and
WHEREAS, the City Council held a duly noticed public hearing on September 16, 2025,
and after considering all testimony and written materials provided in connection with
that hearing introduced this ordinance and waived the reading thereof.
NOW, THEREFORE, THE CITY COUNCIL OF THE OF CITY OF CUPERTINO
DOES ORDAIN AS FOLLOWS:
SECTION 1. Adoption.
The Cupertino Municipal Code is hereby amended to add the following new section(s):
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Chapter 14.30 SMALL WIRELESS FACILITIES IN PUBLIC RIGHTS-OF-WAY
14.30.010 Purpose.
The purpose of this chapter is to establish a process for uniform standards for reviewing
and acting upon requests for the placement of small wireless facilities within the public
rights-of-way of the City consistent with the City’s obligation to promote the public
health, safety, and welfare, to manage the public rights-of-way, and to ensure that the
public is not incommoded by the use of the public rights-of-way for the placement of
small wireless facilities. The City recognizes the role of personal wireless facilities to
provide personal wireless service to the residents and businesses within the City. No
provision of this chapter shall be interpreted in a manner that violates state or federal
law.
14.30.020 Definitions.
A. The abbreviations, phrases, terms, and words used in this chapter will have the
following meanings assigned to them unless context indicates otherwise. Undefined
phrases, terms, or words in this chapter will have their ordinary meanings.
B. The definitions in this chapter shall control over conflicting definitions for the same
or similar abbreviations, phrases, terms, or words as may be defined elsewhere in the
Municipal Code.
C. Definitions.
1. “Applicant” means a person filing an application for placement or
modification of a small wireless facility in the public right-of-way.
2. “Application” means a formal request, including all required and requested
documentation and information, submitted by an applicant to the city for a wireless ROW
permit.
3. “City Manager” means the City Manager or their designee.
4. “Director” means the Director of the Department of Public Works or their
designee.
5. “Eligible facilities request” has the meaning as set forth in 47 C.F.R. Section
1.6100(b)(3), or any successor provision.
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6. “FCC” means the Federal Communications Commission or its lawful
successor.
7. “Permittee” means any person or entity granted a wireless ROW permit
pursuant to this chapter.
8. “Personal wireless services” has the same meaning as set forth in 47 U.S.C.
Section 332(c)(7)(C)(i).
9. “Public right-of-way,” “right-of-way,” or “ROW” means any public street,
public way, or public place within the City limits, either owned by the City, dedicated to
the City or granted by easement to the public for the purpose of travel, and which the
City has the responsibility to maintain or manage. “Public right-of-way,” “right-of-way,”
or “ROW” includes all or any part of the entire width of right-of-way, and above and
below the same, whether or not such entire area is actually used for travel purposes.
10. “Support structure” means any structure capable of supporting a base station.
11. “Small wireless facility,” “wireless facility” or “facility” means the
transmitters, antenna structures, and other types of installations used for the provision of
wireless services at a fixed location, including, without limitation, any associated
tower(s), support structure(s), and base station(s) used to provide personal wireless
services, as defined in 47 C.F.R. § 1.6002(l).
12. “Wireless regulations” means regulations adopted pursuant to
Section 14.30.040 and implementing the provisions of this chapter.
13. “Wireless ROW permit” means a permit issued pursuant to this chapter
authorizing the placement or modification of a small wireless facility of a design specified
in the permit at a particular location within the right-of-way.
14.30.030 Applicability.
A. Permit Required. Unless exempted, every person who seeks to place a small
wireless facility in the public rights-of-way or modify an existing wireless facility in the
public rights-of-way must obtain a wireless ROW permit authorizing the placement or
modification of the facility in accordance with this chapter.
B. Exemptions. This chapter does not apply to any of the following:
1. The placement or modification of facilities by the City or by any other agency
of the state solely for public safety purposes.
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2. The use of a mobile wireless facility to provide temporarily for wireless
services in the event of an emergency, for no longer than the duration of interruption in
services due to the emergency. This exception does not authorize the excavation,
movement, or removal of existing functional facilities.
3. Wireless communications facilities permitted under Chapter 19.136.
C. Other Legal Requirements. In addition to the requirements of this chapter, an
applicant seeking to place small wireless facilities in the right-of-way shall comply with
other applicable local, state, and federal laws and regulations, including but not limited
to applicable FCC regulations governing radio frequency emissions, the Americans with
Disabilities Act, and all applicable building standards. A valid wireless ROW permit
issued pursuant to the requirements of this chapter and the wireless regulations shall be
deemed to satisfy the requirements of Municipal Code Chapter 14.08.
D. Existing Wireless Facilities. Any permitted small wireless facility already existing
in the right-of-way as of the date of this chapter’s adoption shall remain subject to the
standards and conditions of the Municipal Code in effect prior to effective date of this
chapter, unless and until a renewal of such facility’s then-existing permit is granted, at
which time the provisions of this chapter shall apply in full force going forward as to
such facility. The review of any request for a renewal of a permit for such pre-existing
facilities shall be conducted pursuant to this chapter.
E. Public Use. Except as otherwise provided by state or federal law, any use of the
public right-of-way authorized pursuant to this chapter will be subordinate to the City’s
use and use by the public.
14.30.040 Wireless Standards and Regulations.
A. Adoption and Amendment Regulations. The Director shall develop wireless
standards regulations to implement the requirements of this chapter including
regulations governing eligible facility requests. The City Council shall approve the
adoption of the wireless regulations and shall approve any amendments to the wireless
regulations, except for minor modifications as set forth in Paragraph B. Applicants shall
engineer, design, and locate the small wireless facilities in accordance with the standards
and wireless regulations adopted by the City Council.
B. Minor Modifications. The Director may approve any modification of the wireless
regulations to the extent that such modification does not have the potential to
substantially enlarge or expand the scope of use of the right-of-way for the provision of
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personal wireless service, the potential to interfere with the use or management of the
right-of-way, or the potential to substantially impair public health, safety, and welfare
(“minor modification”). The Director shall notify the City Council of a proposed minor
modification of the wireless regulations at least 10 business days before the modification
takes effect. Prior to the effective date of a proposed minor modification, any
Councilmember may request that Council review the minor modification before it takes
effect. A request for review shall stay the implementation of the minor modification until
the City Council completes its review. The City Council may in its discretion approve,
modify, or reject the proposed minor modification.
14.30.050 Applications.
A. Application Procedures. The Director shall develop forms and procedures for
submission of applications for placement or modification of small wireless facilities and
proposed changes to any support structure consistent with this chapter.
B. Content of Application.
1. An applicant shall submit an application on the form approved by the
Director, which may be updated from time to time, but in any event shall require the
submission of all required fees, documents, information, and any other materials
necessary to allow the Director to make required findings and ensure that the proposed
facility will comply with applicable federal and state law and the Municipal Code and
will not endanger the public health, safety, or welfare.
2. An application for an eligible facility request shall be made in a form approved
by the Director and shall contain information sufficient to determine whether the
proposed facility complies with the requirements of 46 C.F.R. § 1.6100. An application for
an eligible facilities request shall be subject to the requirements of this chapter and the
wireless regulations to the extent expressly stated in this chapter or the regulations.
C. Public Notice. At least 21 days prior to when an application may be approved, the
applicant shall: (1) post notice at the proposed project site in a location near to and visible
from the right-of-way; (2) notify in writing, in a form approved by the Director, of the
filing of the application to property owners and residents of all property within a 300-
foot radius of the proposed project; and (3) provide the City with evidence that notice has
been provided pursuant to Subparagraphs (1) and (2). The applicant shall maintain and
replace the posted notice as necessary during the entire application review process until
the Director acts on the application and all appeals have been exhausted. The posted
notice shall be composed from durable quality and weather-resistant materials that will
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not deteriorate under normal circumstances for at least one hundred 180 calendar days.
The posted notice shall be at minimum 11 inches wide by 17 inches tall. The posted notice
shall not be placed in any location where it would obstruct travel or visibility for vehicles,
bicycles, pedestrians, or other users in the right-of-way.
D. Fees. Application fees shall be set by resolution of the City Council and shall be
required to be submitted with any application for a wireless ROW permit.
E. Review of Applications. Upon receipt of any fee established by this chapter, the
Director shall review an application for the placement or modification of a wireless
facility and shall issue any notices of incompleteness, requests for information, or conduct
or commission such studies as may be required to determine whether a permit should be
issued. If an application is incomplete, the Director may notify the applicant in writing,
specifying the material omitted from the application. The Director may in their discretion
deem any incomplete application withdrawn after 60 days.
14.30.060 Decisions of the Director.
A. Authority of Director. Subject to the rights of appeal provided herein, the Director
shall determine whether to approve, approve subject to conditions, or deny an
application. The Director may take such other steps as may be required to timely act upon
applications for placement or modification of wireless facilities, including issuing written
decisions and entering into agreements to mutually extend the time for action on an
application.
B. Findings. Except for eligible facilities requests, the Director shall approve an
application if, on the basis of the application and other materials or evidence provided in
review thereof, they find each of the following:
1. The application is complete and provides all information required by this
chapter and the wireless regulations.
2. The facility meets all applicable local, state, and federal health and safety
standards, including federal standards for radiofrequency emissions.
3. The facility complies with this chapter and all applicable wireless standards
and regulations.
The Director’s decision to approve, deny, or conditionally approve an application shall
be in writing and include the reasons for the decision.
C. Eligible Facilities Requests. For eligible facilities requests, the Director shall approve
an application if, on the basis of the application and other materials or evidence provided
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in review thereof, they find that the application meets the requirements set forth in 47
C.F.R. § 1.6100 and the proposed facility complies with all applicable state and federal
laws and regulations. The conditions of any permit previously issued for the eligible
facility shall apply to the maximum extent permitted by federal and state law and
regulations.
D. Conditions of Approval. All permits issued under this chapter shall include
conditions of approval sufficient to ensure compliance with the requirements of this
chapter and the wireless regulations, as may be set forth in the wireless regulations.
E. Independent Consultants. The Director may in their discretion select and retain
independent consultant(s) with expertise and appropriate credentials in
telecommunications, building or structural standards, and/or electrical or fire safety in
connection with the review of any application under this chapter. Such independent
consultant review may be retained on any issue that involves specialized or expert
knowledge in connection with an application, including but not limited to application
completeness or accuracy, engineering analysis, or compliance with FCC radio frequency
emissions limits. Nothing in this paragraph authorizes the City to evaluate the health
effects of a proposed wireless facility, except to determine that the facility complies with
radio frequency emissions limits established by the FCC.
F. Waivers. Requests for waivers from any requirement of this chapter or the wireless
regulations shall be made in writing to the Director. The Director may grant a request for
waiver only if (1) the applicant demonstrates that denial of an application would, within
the meaning of federal law, prohibit or effectively prohibit or materially inhibit the
provision of personal wireless services, or otherwise violate applicable state or federal
laws or regulations, or (2) with respect to a standard or requirement set forth in the
wireless regulations, the Director determines based on clear and convincing evidence that
a waiver of the standard or requirement is necessary to protect public health, safety, or
welfare, based on specific characteristics of the proposed facility. All waivers approved
pursuant to this Paragraph shall be granted only on a case-by-case basis and shall be
narrowly tailored so that the requirements of this chapter are waived only to the extent
necessary to comply with state or federal law or regulations or to protect public health,
safety, or welfare.
G. Notice to Interested Persons. The Director shall establish a procedure to allow any
interested person who receives notice pursuant to Section 14.30.050(D) to be notified of
any decision made pursuant to this Section.
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14.30.070 Appeals.
A. Right to Appeal; Appeal Fee. An applicant or any person entitled to receive notice
pursuant to Section 14.30.050(D) may request an administrative hearing to appeal the
director’s decision. In order to request a hearing, the affected person shall submit to the
City Clerk an administrative hearing form along with the full amount of any appeal fee.
The request for administrative hearing shall be incomplete if it does not include the
deposit in the full amount of any appeal fee. The deposit will be retained in a noninterest
bearing account until the matter is resolved. Any appeal fee shall be refunded to the
appellant if their appeal is granted. The administrative hearing form shall include the
location or address of the proposed wireless facility that is the subject of the appeal, as
well as the grounds for which the appeal is being submitted.
B. Time to Appeal. Appeals must be filed within five business days of the mailing of
decision notice of the Director unless a different time period is specified by the Director
in the notice. The Director may extend the time period for filing an appeal for good cause;
provided, however, an extension may not be granted where such extension would result
in approval of the application by operation of law. If a timely and complete request for a
hearing is not submitted, the Director’s decision shall be deemed final.
C. Administrative Hearing. If a timely and complete request for hearing is submitted,
the City Manager shall conduct an administrative hearing within 30 days of receipt of the
appeal or as soon thereafter as necessary to comply with applicable requirements of state
and federal law. The City Manager may decide all issues presented de novo. The
appellant and the applicant shall have the opportunity to present evidence; provided,
however, that rules of evidence and discovery do not apply to the administrative
hearings.
D. Decision on Appeal. The City Manager may affirm, reverse, or modify the Director’s
decision and may modify conditions of approval to ensure that the decision complies
with the requirements of this chapter and applicable local, state, and federal law. The City
Manager’s decision shall be in writing, shall explain the basis for the decision, and shall
be served upon the applicant and upon the appellant (if different) by first class mail to
the address stated on the request for hearing form. The written decision of the City
Manager shall be the final decision of the City effective on the date of mailing.
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14.30.080 Revocation of Permits; Removal of Equipment; Enforcement.
A. Revocation of Permit. A wireless ROW permit may be revoked (1) for failure to
comply with the conditions of the permit, any provision of the Municipal Code, or
applicable state or federal law; (2) if the permittee becomes ineligible for franchise rights
under state law; or (3) if the permittee’s FCC authorization to operate wireless facilities
and/or provide wireless service is terminated for any reason. The Director shall provide
the permittee notice and the opportunity to be heard prior to the revocation of any permit,
the procedures for which may be set forth more fully in the wireless regulations.
B. Removal of Wireless Facilities. The Director may order the removal of any wireless
facility upon revocation or termination of its wireless ROW permit and of any wireless
facility installed or modified after the effective date of the ordinance codified in this
chapter without a validly issued wireless ROW permit; provided, however that removal
of a support structure owned by the City, a utility, or another entity authorized to
maintain a support structure in the right-of-way need not be removed, but must be
restored to its prior condition, except as specifically permitted by the City. All entities
that own or control any part of a wireless facility shall be jointly and severally liable for
any costs incurred by the City in connection with enforcement of this provision and the
removal of the facility.
C. Administrative Penalties. In addition to any criminal, civil or other legal remedy
established by law that may be pursued to address violations of this chapter, the Director
may issue an administrative citation under Chapter 1.10 for the violation of any provision
of this chapter or any regulation adopted pursuant to Section 14.30.040.
14.30.090 Nondiscrimination.
In establishing the rights, obligations, and conditions set forth in this chapter, it is the
intent of the city to treat each applicant or public right-of-way user in a competitively
neutral and nondiscriminatory manner, to the extent required by law, and with
considerations that may be unique to the technologies, situation and legal status of each
particular applicant or request for use of the right-of-way.
SECTION 2: Severability and Continuity.
The City Council declares that each section, sub-section, paragraph, sub-paragraph,
sentence, clause and phrase of this ordinance is severable and independent of every other
section, sub-section, paragraph, sub-paragraph, sentence, clause and phrase of this
ordinance. If any section, sub-section, paragraph, sub-paragraph, sentence, clause or
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phrase of this ordinance is held invalid, or its application to any person or circumstance,
be determined by a court of competent jurisdiction to be unlawful, unenforceable or
otherwise void, the City Council declares that it would have adopted the remaining
provisions of this ordinance irrespective of such portion, and further declares its express
intent that the remaining portions of this ordinance should remain in effect after the
invalid portion has been eliminated. To the extent the provisions of this Ordinance are
substantially the same as previous provisions of the Cupertino Municipal Code, these
provisions shall be construed as continuations of those provisions and not as an
amendment to or readoption of the earlier provisions.
SECTION 3: California Environmental Quality Act.
This Ordinance is not a project under the requirements of the California Environmental
Quality Act, together with related State CEQA Guidelines (collectively, “CEQA”) because
it has no potential for resulting in physical change in the environment. In the event that
this Ordinance is found to be a project under CEQA, it is subject to the CEQA exemption
contained in CEQA Guidelines section 15303(d) because new construction or conversion
of small structures for utility extensions are categorically exempt. CEQA applies only to
actions which have the potential for causing a significant effect on the environment. In
this circumstance, the proposed action of adopting Cupertino Municipal Code Section
14.30, which regulates the installation of small wireless communication facilities in the
public right of way, would have no or only a de minimis effect on the environment. The
foregoing determination is made by the City Council in its independent judgment.
SECTION 4: Effective Date.
This Ordinance shall take effect thirty days after adoption as provided by Government
Code Section 36937.
SECTION 5: Publication.
The City Clerk shall give notice of adoption of this Ordinance as required by law.
Pursuant to Government Code Section 36933, a summary of this Ordinance may be
prepared by the City Clerk and published in lieu of publication of the entire text. The
City Clerk shall post in the office of the City Clerk a certified copy of the full text of the
Ordinance listing the names of the City Council members voting for and against the
ordinance.
INTRODUCED at a regular meeting of the Cupertino City Council on September 16,
2022, and ENACTED at a regular meeting of the Cupertino City Council on October 21,
2025 by the following vote:
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Members of the City Council
AYES: Chao, Moore, Fruen, Mohan
NOES: None
ABSENT: Wang
ABSTAIN: None
Liang Chao, Mayor
City of Cupertino
Date
Kirsten Squarcia, City Clerk Date
Floy Andrews, Interim City Attorney Date
10/27/2025
10/27/2025
10/23/2025