Loading...
HomeMy Public PortalAbout10A Adoption of Urgency Ordinance 15-998 To Enact A Moratorium On Wireless Telecommunications FacilitiesAGENDA ITEM 10.A. COMMUNITY DEVELOPMENT DEPARTMENT MEMORANDUM DATE: January 20 , 2015 TO: The Honorable City Council FROM: Bryan Cook , City Manager By: Michael D. Forbes , Community Development Director ~ SUBJECT: ADOPTION OF URGENCY ORDINANCE NO. 15-998 TO ENACT A MORATORIUM ON WIRELESS TELECOMMUNICATIONS FACILITIES RECOMMENDATION: The City Council is requested to introduce , read by title , waive further reading , and adopt Urgency Ordinance No . 15-998 (Attachment "A ") to enact a moratorium on wireless telecommunications facilities. BACKGROUND: 1. In 1996 , Congress enacted the Telecommunications Act of 1996. Among other provisions , the Act established the framework within which local government may regulate wireless telecommunications facilities (i.e. cellular phone antennas and towers). 2 . In 1996 and subsequent years , many ci ties across the country enacted local ordinances to regulate the development , siting , installation , and operation of wireless facilities consistent with the Telecommunications Act of 1996. Temple City has never enacted an ordinance to address wireless facilities located in the public right-of-way or on public or private property . The City has been requiring a Conditional Use Permit for wireless facilities under a Zoning Code provision that requires Conditional Use Permits for "radio or television towers and transmitters ." 3 . Throughout the 2000s and 201 Os , state and federal law addressing the scope and manner of local regulation of wireless facilities has continued to develop and evolve as a result of various court cases and Federal Communications Commission rules. Local ordinances have similarly evolved over time in response to regulatory changes at the state and federal level. Because Temple City has never enacted a wireless facilities ordinance , the Zoning Code has not been updated to reflect these changes. City Council January 20 , 2015 Page 2 of 3 4 . In 2014, AT&T Mobility applied for a Conditional Use Permit to construct a wireless facility at 9677 Longden Avenue. The proposed facility was opposed by many residents in the surrounding neighborhood and generated discussions with the Planning Commission and City Council about various issues related to the facility and wireless facilities in general. The City anticipates receiving additional requests in the coming months from wireless service providers to establish new or expanded wireless facilities within the City . ANALYSIS: Because Temple City does not have a wireless facilities ordinance , issues such as the location and design of wireless facilities are addressed on a case-by-case basis through the Conditional Use Permit process rather than in a comprehensive and consistent manner. The existing provisions in the Temple City Municipal Code do not address the impacts re lated to timing , locatio n , and manner of construction of wireless facilities, incl uding public health , safety , and welfare concerns related to such facilities. As such, it is necessary and appropriate at this time to update the Temple City Municipal Code to adequately address these issues . Additional time is needed to prepare , evaluate , and adopt reasonable regulations regarding wireless facilities . California Government Code Section 65858 allows a city to adopt an urgency ordinance to establish a moratorium on development that may be inconsistent with zoning regulations being contemplated by the city , as follows: Without following the procedures otherwise required prior to the adoption of a zon ing ordinance , the legislative body of a county, city , including a charter city , or city and county , to protect the public safety, health , and welfare , may adopt as an urgency measure an interim ordinance prohibiting any uses that may be in conflict with a contemplated general plan , specific plan , or zoning proposal that the legislative body , planning commission or the plann ing department is considering or studying or intends to study within a reasonable time . That urgency measure shall require a four-fifths vote of the legislative body for adoption . The interim ordinance shall be of no further force and effect 45 days from its date of adoption . After notice pursuant to Section 65090 and public hearing , the legislative body may extend the interim ordinance for 10 months and 15 days and subsequently extend the interim ordinance for one year. Any extension shall also require a four-fifths vote for adoption . Not more than two extensions may be adopted . To ensure that no new or relocated wireless facilities are approved that may be inconsistent with the new regulations , staff recommends that the City Council adopt an urgency ordinance pursuant to this provision . As noted above , such an ordinance would be effective for 45 days , after which t ime the City Council would be requ ired to hold a public hearing to further extend the moratorium for up to an additional 10 months City Council January 20 , 2015 Page 3 of 3 and 15 days , for a total period of one year . The City Council would have the option to further extend the ordinance , however one year should be adequate for staff to prepare wireless facility regulations for Planning Commission and City Council consideration . As noted in the attached urgency ordinance , staff believes that the proposed moratorium is necessary to protect the public health , safety , and welfare . As described in the ordinance , staff is recommending that the moratorium apply only to new and relocated wireless facilities . The moratorium would not prohibit co -location of new antennas and equipment on an existing wireless facility or the ma intenance , updating, repair, or improvement of an existing wireless facility provided that the physical dimensions of the wireless facility are not substantially changed . CONCLUSION: The Temple City Municipal Code needs to be updated to prov ide adequate regulations for wireless facilities . While new regulations are being contemplated , it is necessary and appropriate to adopt a moratorium on new wireless facilities to protect the public health , safety , and welfare . A moratorium will ensure that no new or relocated wireless facilities are constructed that may be inconsistent with the new regulations . FISCAL IMPACT: Adopting the proposed urgency ordinance would not in and of itself have any impact on the Fiscal Year 2014-15 City Budget. Staff will work with the City Attorney's Office to prepare regulations for wireless facilities , which will incur costs for the City Attorney's time and indirect costs in the form of staff time and resources . However , these costs would be i ncurred even w ithout the proposed moratorium . ATTACHMENT: A. Urgency Ordinance No . 15-998 ATTACHMENT A URGENCY ORDINANCE NO. 15-998 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORNIA, ESTABLISHING A MORATORIUM ON ALL NEW WIRELESS FACILITIES THE CITY COUNCIL OF THE CITY OF TEMPLE CITY ORDAINS AS FOLLOWS: SECTION 1. Findings. A. Under Public Utilities Code Section 7901 .1, the City is authorized to adopt reasonable time , place, and manner regulations with respect to the manner in which public rights -of-way may be accessed by telephone companies, including wireless communication companies that have been granted state authorization permitting the construction of facilities in public rights-of -way . B. In addition , under Section 332 of Title 47 of the United States Code , the City may regulate the placement, construction , and modification of wireless telecommunication facilities , subject to specified limitations . C. As used in this ord inance , "Wireless Facilities " means all equipment installed for the purpose of providing wireless transmission of voice , data , images , or other information including, but not lim ited to , cellular telephone service , personal communications services , and paging services, consisting of equipment and network components such as towers , utility poles, transm itters , base stations , and emergency power systems . "Wireless Facilities " shall not be deemed to include facilities constructed by and operated by suppliers of electric, gas , or water utilities . D . The Temple City Municipal Code (TC MC) is silent with respect to the development, siting , installation , and operation of Wireless Facilities in City rights -of-way as well as on other public or private property . The City has been requ i ring Wireless Facil ities to apply for and rece ive a Conditional Use Permit , even though Wireless Facilities are not expressly listed in the TCMC as requiring a Conditional Us e Perm it. E . State and federal law addressing t he scope and manner of loca l reg u latio n of Wireless Facilities continues to develop and evolve as evidenced by the following cases and rule changes : i. In Sprint Telephone PCS , L.P. v . County of San Diego (2008) 543 F .3d 571 ("Spri nt Telephone"), the Ninth Circuit Court of Appeals overruled seven years of Ninth Circuit juri sprudence relating to 47 U.S.C. § 253 , a provision of Federal Telecommunications Act that, until this case was decided , had been interpreted to severely limit lo cal authority to regulate Wireless Facilities . Urgency Ordinance No . 15-998 Page 2 of 7 ii . In Sprint PCS Assets , LLC v . City of Palos Verdes Estates (2009) 583 F .3d 716 ("Sprint PCS"), the Ninth Circuit Court of Appeals set out significant new standards establishing how local governments may cons ider and decide applications for Wireless Facilities to be located within the public right-of-way . iii . On February 22, 2012 , Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 ("Act") was enacted and changed how co -located Wire less Facilities must be evaluated , and in some cases must be approved , changing sixteen years of national jurisprudence relating to 47 U.S .C . § 332 that , until the passage of the Act allowed local governments wide latitude and discretion in considering co-location of Wireless Facil ities in the public right-of-way , and on public and private property. iv . On October 17, 2014 , the Federal Communications Commission ("FCC ") issued a Report and Order updating its rules and procedures governing new and modified Wireless Facil it ies, which include s clarifications on local zoning powers with respect to Wireless Facilities and the procedures for the review of siting applications . F . The City has recently received and anticipates rece1v1ng additional requests by telecommunications providers to establish new or expanded Wireless Fac ilitie s within the City . However, as noted above , the existing provisions of the TCMC are inadequate and time is needed to review, study, and revise the TCMC to ful ly take into account the impacts related to the timing , location, and manner of construction of Wireless Facilities by multiple telecommunication providers within the public rights-of-way as well as other public and private property, including the public health , safety, and welfare concerns of pedestrian and vehicular traffic . G . The TCMC is in need of updating to protect the publ ic against the potential health, safety, and welfare dangers caused by multiple telecommunication providers constructing Wireless Facilities throughout the City . The City requires additional time to prepare , evaluate and adopt reasonable regulations regarding the use of the public rights-of-way and other public and private property within the City for Wireless Facilities . H. The absence of this ordinance would impair the orderly and effective implementation of contemp lated amendments to the TCMC , and any further authorization to construct Wireless Facilities in the City's rights-of- way or other public or private property within the City during the period of this moratorium may be in conflict with or may frustrate the contemplated updates and revisions to the TCMC . Urgency Ordinance No . 15-998 Page 3 of 7 I. Without the enactment of this ordinance , multiple telecommunication providers could quickly receive permits to i nstall Wireless Facilities that pose a threat to the public health , safety , and welfare . For e xample , without this ordinance , Wireless Facilities could : i. Create land use conflicts and incompatibilities including excessive height of poles and towers ; ii. Create v isual and aesthetics blights and potential safety concerns arising from excessive size , heights, noise , or lack of camouflaging of Wireless Facilities including the associated pedestals , meters, equipment boxes , and power generators ; 11 1. Create unnecessary visual and aesthetic blight by fail ing to utilize alternative technolog ies or cap italize on co-location opportunities ; iv . Cause substantial disturbances to rights-of-way through the installation and maintenance of Wireless Facilities ; v . Create traffic and pedestrian safety hazard s due to the unsafe location of Wireless Facilities ; and vi . Negatively impact the predominantly residential qual ity and character of the City . J . The City Council further finds that this moratorium is a matter of local and City-wide importance and is not directed towards any particular telecommunication provider that currently seeks to establish a Wireless Facility. K. Government Code sections 36937 and 65858 authorize the adoption of an urgency ordinance to protect the public health , safety and welfare , and to prohibit certain land uses that may confl ict with land use regulations that the City's leg is lative bodies are considering or intend to study within a reasonable t ime . L. The City Council finds that there is a current and immediate threat to the public health , safety , and welfare based on the above findings , and upon that basis has determ ined that an urgency ordinance proh ib iting the issuance of new permits or approvals for new Wireless Facilit ies in public rights-of -way or other publ ic or private property within the City is warranted . SECTION 2. Environmental Review. The City Council finds that this urgency interim ordina nce is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably Urgency Ordinance No . 15-998 Page 4 of 7 fo reseeable ind irect phys ical change in the env ironment), 15060(c)(3) (the activity is not a project as defined in Section 15378), and 15061 (b)(3 ) (the activity wil l not have a signific ant effect on the env i ronment) of the CEQA Guidelines , Californ ia Code of Regulat ions , T itle 14 , Chapter 3 . These f indings are prem ised on the fact that the adoption of this urgency interim ordinance will maintain existing env ironmental conditions arising from the C ity 's current land use regulations without significant change or alteration . SECTION 3. Applicability. This ord inance applies to all applications filed but not complete and all new appl icat ions subm itted to the City after the effective date of this ordinance for the installation or relocation of Wireless Facilities within the City, i ncluding with in public rights-of-way and on other property . SECTION 4. Moratorium on New Wireless Facilities. A. Except as provided in Section 5 below, for a peri od of 45 days from the date of adoption of this ordinance , no permits or other approvals may be issued for any: 1. Installation of a new Wireless Facility; 2 . Relocation of an existing Wireless Facility . B. Except to the e xtent otherwise prohibited by law , this temporary moratori um is not intended to , and does not , affect the acceptance and/or processing of permit applications deemed complete as of the effective date of this moratorium for any Wireless Facilities described in Section 4 (A). City staff is hereby directed to accept applications for Wire less Facility installations and relocations received after the effective date of this ordinance ; however, any new standards for such W i reless Faci li ties and the permitting thereof which are adopted during the moratorium and are effective at the expiration of the moratorium will apply to such appl ications. Any time limits or mandatory approval time frames relative to the processing or action upon perm it applications for any Wireless Fac ilities described in Section 4(A) are tolled during the term of this moratorium . The City Council intends to term inate this moratorium as soon as reasonably feas ible within a timeframe to allow the adoption of comprehens ive new land use regulations with respect to Wireless Facilities . Urgency Ord i nance No . 15-998 Page 5 of 7 SECTION 5. Exceptions. The prov 1s 1ons of this ordinance sha ll not be construed to prohibit the issuan ce of permits or approvals for the following : A. The co-location of new antennas and other equipment on an existing Wireless Faci lity ; B. The maintenance , updating , repair or improvement of an existing Wireless Facility, provided that the physical dimensions of the Wireless Facility are not substantially changed . The determination of whether the physical dimensions will be substantially changed shall be in accordance with cr iteria stated in the FCC Report and Order dated October 17 , 2014 . SECTION 6. Legal and Planning Studies . The Community Development Department and the City Attorney 's Office are directed to study and analyze issues related to the establishment, permitti ng , and operation of Wire less Facil ities with in the City , and the potential impa cts of such Fa cil ities on public health , safety and welfare of the community with respect to the concerns identified in this ordinance , the des irability of such Facil ities in various locations, and the extent of regulatory controls , if any , to impose on such Facilities . SECTION 7. Severability. If any section , subsection , sentence , clause , or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction , such decision wi ll not affect the val idity of the rema i ni ng portions of this ordinance . The City Counci l hereby declares that it would have passed this ordinance and each and every section , subsection , sentence, clause , or phrase not declared i nvalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 8. Effective Date and Duration. Th is ordinance is an urgency ordinance enacted under California Government Code section 65858(a). This urgency ordinance is effective upon adoption by a four-fifths vote of the City Council and will extend for a period of 45 days from the date of adoption at which time it will automatically expire unless extended by the City Council in accordance with California Government Code section 65858 . SECTION 9. Publication . The City Clerk is directed to cause this ordinance to be publ ished in the manner requ ired by law . PASSED, APPROVED, AND ADOPTED this 20th day of January, 2015. Carl Blum , Mayor Urgency Ord i nance No . 15-998 Page 6 of 7 ATTEST: Peggy Kuo City Clerk APPROVED AS TO FORM: Eric S . Vail C ity Attorney Urgency Ordinance No . 15 -998 Page 7 of 7 STATE OF CALIFORNIA COUNTY OF LOS ANGELES CITY OF TEMPLE CITY ss . CITY CLERK'S CERTIFICATION OF THE ADOPTION OF ORDINANCE I, Peggy Kuo, City Clerk of the City of Temple City , do hereby certify that the foregoing Urgency Ordinance No . 15-998 was introduced and adopted , as an urgency measure pursuant to Californ ia Government Code section 36937 (b), at a regular meeting of the City Council on the 20th day of January , 2015 by the following roll-call vote : AYES : COUNCIL MEMBERS : NOES : COUNCIL MEMBERS : ABSENT : COUNCIL MEMBERS: ABSTAIN : COUNCIL MEMBERS : Peggy Kuo CITY CLERK