HomeMy Public PortalAbout19-1929U - Amending Carson Municipal Code Article VII for the Regulation of Small Wireless Facilities in the Public Rights of WayURGENCY ORDINANCE NO. 19-1929U
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARSON,
CALIFORNIA AMENDING CARSON MUNICIPAL CODE ARTICLE VII FOR THE
REGULATION OF SMALL WIRELESS FACILITIES IN THE PUBLIC RIGHTS OF
WAY
WHEREAS, pursuant to the California Constitution, Article XI, section 7; California Government Code
section 37100 and other applicable law, the City Council of the City of Carson may make and
enforce within its limits all local, police, sanitary and other ordinances, resolutions and other
regulations not in conflict with general laws.
WHEREAS, California Government Code sections 36934 and 36937 authorize the City
Council to adopt an Urgency Ordinance for the immediate preservation of the public peace,
health, or safety.
WHEREAS, during the last decade, significant changes in federal laws that affect local authority over
personal wireless service facilities and other related infrastructure deployments have occurred,
including, but not limited to, the following:
• On November 18, 2009, the Federal Communications Commission ("FCC') adopted a Declaratory
Ruling on the proceeding titled Petition for Declaratory Ruling to Clarify Provisions of Section
332(c)(7)(8) to Ensure Timely Siting Review, 24 FCC Rcd. 13994 (rel. Nov. 18, 2009), which
imposed procedural restrictions on state and local permit application reviews such as
presumptively reasonable times for action. After a petition for judicial review, the U.S. Supreme
Court in City of Arlington v. FCC, 569 U.S. 290 (2013), upheld the FCC's authority to issue these
rules;
• On February 22, 2012, Congress adopted the Middle Class Tax Relief and Job Creation Act, which
amended the Communications Act to mandate approval for certain "eligible facilities requests" to
collocate and/or modify existing wireless towers and/or base stations;
On October 17, 2014, the FCC adopted a Report and Order in the rulemaking proceeding titled
Acceleration of Broadband Deployment by improving Wireless Facilities Siting Policies, 29 FCC Rcd.
12865 (rel. Oct. 21, 2014), which implemented regulations for "eligible facilities requests" and
imposed new procedural restrictions on application reviews. The U.S. Court of Appeals for the
Fourth Circuit in Montgomery Cnty. V. FCC, 811 F.3d 121 (4th Cir. 2015), denied petitions for
review;
• On October 9, 2015, Governor Edmund Brown signed Assembly Bill No. 57 (Quirk) into law, which
creates a "deemed -approved" remedy for when a local government fails to act on applications
for certain wireless facilities within the presumptively reasonable times established in the FCC's
I 2009 Declaratory Ruling and 2015 Infrastructure Order;
LJ • On August 2, 2018, the Federal Communications Commission ("FCC') adopted a Third Report &
Order and Declaratory Ruling in the rulemaking proceeding titled Accelerating Wireline and
Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd.
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7705 (rel. Aug. 3, 2018) (the "August Order"), that formally prohibited express and de facto
moratoria for all personal wireless services, telecommunications services and their related
facilities under 47 U.S.C. § 253(a) and directed the Wireless Telecommunications Bureau and
Wireline Competition Bureau to hear and resolve all complaints on an expedited basis; and
• On September 26, 2018, the FCC adopted a Declaratory Ruling and Third Report and Order in the
same rulemaking proceeding, --- FCC Rcd. ---, FCC 18-133 (rel. Sep. 27, 2018) (the "September
Order"), which, among many other things, creates a new regulatory classification for small
wireless facilities, alters existing "shot clock" regulations to require local public agencies to do
4-0 more in less time, establishes a national standard for an effective prohibition that replaces the
existing "significant gap" test adopted by the United States Court of Appeals for the Ninth Circuit
and provides that a failure to act within the applicable timeframe presumptively constitutes an
effective prohibition.
WHEREAS, in addition to the changes described above, local authority may be further impacted by other
pending legislative, judicial and regulatory proceedings, including but not limited to:
• The "STREAMLINE Small Cell Deployment Act" (S. 3157) proposed by Senator John Thune that,
among other things, would apply specifically to "small wireless facilities" and require local
governments to review applications based on objective standards, shorten the shot clock
timeframes, require all local undertakings to occur within the shot clock timeframes and provide
a "deemed granted" remedy for failure to act within the applicable shot clock; and
• Further orders and/or declaratory rulings by the FCC from the same rulemaking proceeding as
the August Order and September Order; and
• Multiple petitions for reconsideration and judicial review filed by state and local governments
against the August Order and September Order, which could cause the rules in either order to
change or be invalidated.
WHEREAS, given the rapid and substantial changes in applicable law, the active and effective federal
prohibition on reasonable moratorium ordinances to allow local public agencies to study these
changes and develop appropriate responses and the significant adverse consequences for
noncompliance with these changes in applicable law, the City Council desires to amend the
Carson Municipal Code to allow greater flexibility and responsiveness to new federal and State
laws in order to preserve the City's traditional authority to the maximum extent practicable (the
"Amendment').
WHEREAS, on April 2, 2019, the City Council held a duly noticed public meeting on the proposed
Amendment, reviewed and considered the staff report, other written reports, public testimony
and other information contained in the record.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CARSON HEREBY FINDS, DETERMINES AND ORDAINS
AS FOLLOWS:
SECTION 1. FINDINGS.
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The City Council finds that:
A. The facts set forth in the recitals are true and correct and incorporated herein by this reference.
The recitals constitute findings in this matter and, together with the staff report, other written
reports, public testimony and other information contained in the record, are an adequate and
appropriate evidentiary basis for the actions taken in this Urgency Ordinance.
B. State and federal law have changed substantially since the City last adopted regulations for
wireless facilities in the City.
C. State and federal law requires local governments to act on permit applications for wireless
facilities within a prescribed time period. Failure act within the prescribed timeframes may result
in either an automatic approval or significant legal presumptions against the City that render legal
defenses significantly more difficult and costly.
D. Federal law requires state and local agencies to cite their own local authority and substantial
evidence for any denial. Failure to provide such authority or evidence may result in a reversal
and/or mandates to approve applications by a federal court. On April 15, 2019, further
restrictions on local authority and regulations for "small wireless facilities" will become effective.
E. The City lacks regulations for "small wireless facilities" in the public right-of-way and the
management of applicable "shot clocks" that govern the time in which the City must approve or
deny a wireless facility application.
F. The expeditious adoption of wireless facilities regulations are necessary to protect the City's
visual character from potential adverse impacts or visual blight created or exacerbated by
telecommunications infrastructure and promote access to high-quality, advanced
telecommunication services for the City's residents, businesses and visitors.
G. The adoption of this Urgency Ordinance is necessary to preserve the public health, safety, and
welfare as, without such adoption, wireless facilities approved without updated regulations could
create: (1) land use conflicts and incompatibilities between comparable facilities; (2) visual and
aesthetic blight and public safety concerns arising from the excessive size, noise or lack of
camouflaging of wireless facilities; (3) traffic and pedestrian safety hazards due to the potentially
unsafe nature of unregulated siting of wireless facilities in the public rights-of-way.
H. The Amendment is consistent with the General Plan, Carson Municipal Code and applicable
federal and state law.
I. The Amendment will not be detrimental to the public interest, health, safety, convenience or
welfare.
SECTION 2. ENVIRONMENTAL REVIEW.
Pursuant to California Public Resources Code § 21065 and the California Environmental Quality Act
("CECW') Guidelines § 15378, the City Council finds that this Urgency Ordinance is not a "project"
because its adoption is not an activity that has the potential for a direct physical change or reasonably
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foreseeable indirect physical change in the environment. Accordingly, this Urgency Ordinance is not
subject to CEQA.
Even if this Urgency Ordinance qualified as a "project" subject to CEQA, the City Council finds that,
pursuant to CEQA Guidelines § 15061(b)(3), there is no possibility that this project will have a significant
impact on the physical environment. This Urgency Ordinance merely amends the Carson Municipal Code
to authorize the City Council to regulate small wireless facilities and other infrastructure deployments.
This Urgency Ordinance does not directly or indirectly authorize or approve any actual changes in the
physical environment. Applications for any new small wireless facility or other infrastructure deployment,
and/or change to an existing small wireless facility or other infrastructure deployment, would be subject
to additional environmental review on a case-by-case basis. Accordingly, the City Council finds that this
Urgency Ordinance would be exempt from CEQA under the general rule.
SECTION 4. AMENDMENT TO ARTICLE VII.
Section 7300 is added to the Carson Municipal Code as follows:
7300 Small Wireless Facilities.
Notwithstanding any other provision of this Code all "small wireless facilities" as defined
by the FCC in 47 C.F.R. § 1.6002(1), as may, be amended or superseded, are subject to a
permit as specified in a City,Council policy, which may be adopted, amended and or
repealed by a resolution of the City Council. All small wireless facilities shall comply with
such policy. If the policy is repealed and not replaced, an application for a small wireless
facility shall be processed pursuant to Article IX.
SECTION 5. CONFLICTS WITH PRIOR ORDINANCES.
If the provisions in this Urgency Ordinance conflict in whole or in part with any other City regulation or
ordinance adopted prior to the effective date, the provisions in this Urgency Ordinance will control.
SECTION 6. SEVERABILITY.
If any section, subsection, paragraph, sentence, clause, phrase or term (each a "Provision") in this
Urgency Ordinance, or any Provision's application to any person or circumstance, is held illegal, invalid or
unconstitutional by a court of competent jurisdiction, all other Provisions not held illegal, invalid or
unconstitutional, or such Provision's application to other persons or circumstances, shall not be affected.
The City Council declares that it would have passed this Urgency Ordinance, and each Provision therein,
whether any one or more Provisions be declared illegal, invalid or unconstitutional.
SECTION 7. EFFECTIVE DATE.
This Urgency Ordinance is enacted pursuant to the authority conferred upon the City Council by
Government Code Sections 36934 and 36937 and shall be in full force and effect upon its adoption by a
four-fifths (4/5) vote of the City Council.
SECTION 8. PUBLICATION.
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No later than 15 days after its adoption, this Urgency Ordinance (or a summary) together with the names
of each City Council members who voted for or against this Urgency Ordinance shall be published in the
manner required by law.
PASSED and ADOPTED by the City Council of the City of Carson at a regular meeting on this 2nd day
of April, 2019.
APPROVE"O FORM:
ATTEST:
Donesia Gause-AI na, MMC, City Clerk
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STATE OF CALIFORNIA j
COUNTY OF LOS ANGELES j ss.
CITY OF CARSON )
I, Donesia Gause-Aldana, City Clerk of the City of Carson, California, hereby attest to and certify that the
foregoing ordinance, being Ordinance 19-1929U was adopted by the Carson City Council at its meeting
held on the 2nd day of April, 2019, by the following roll call vote:
AYES:
NOES:
ABSTAIN:
COUNCIL MEMBERS: Robles, Hicks, Davis -Holmes, Hilton, Dear
COUNCIL MEMBERS: None
COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES j ss.
CITY OF CARSON j
t�
Donesia Gause-Aldana, MMC, City Clerk
V--"
I, Donesia Gause-Aldana, City Clerk of the City of Carson, California, do hereby certify that
Ordinance No. 19-1929U has been duly and regularly published according to law and the order of the City
Council of said City and that same was so published in Our Weekly, a newspaper of general circulation on
the following date(s):
Introduction of Ordinance - Summary: March 28, 2019
Adoption of Ordinance —Entirety April 11, 2019
In witness whereof, I have hereunto subscribed my n this day of
2019.
�r
Donesia Gaus Aldana, MMC, City Clerk
ORDINANCE NO. 19-1929U
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