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HomeMy Public PortalAbout19) 8A Adoption of Urgency Ordinance No. 15-1000 Extend the Moratorium on on Wireless Facility--------~ ~ City Council February 17 , 2015 Page 2 of 3 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 . 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 . 5 . On January 20, 2015 , the City Council adopted Urgency Ordinance No. 15-998 which enacted a 45-day moratorium on wireless telecommunications facil ities . 6. On February 4 , 2015 , a notice of the public hearing was publ ished with the Temple City Tribune . ANALYSIS: Because Temple City does not have a wireless facilities ordinance , issues such as the location and design of wireles s facilities are addressed on a case-by-case basis th ro ugh 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 , location , and manner of construction of wireless facilities , includ ing 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 Mun icip al Code to adequately address these issues . Additional t ime 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 . The interim ordinance lasts for a 45 day period. However, if a jurisdiction provides notice pursuant to Section 65090 and holds a public hearing it can extend a moratorium for an additional 10 months and 15 days . An additional extension can be gra nted for another year. The total time period for a moratorium cannot exceed two years. Any extension also requires a four-fifths vote for adoption . 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 extend the moratorium by adopting Urgency Ordinance No . 15-1000 pursuant to the above provisions. As noted above , such an ordinance would be effective for ten months and fifteen days . Staff believes this should be sufficient time to prepare wireless facility City Council February 17, 2015 Page 3 of 3 regulati ons for Planning Commiss ion and City Council consideration. If additional time is required , Section 65858 allows the City Council to extend the moratorium up to an additional year. As noted in the attached urgency ordinance , staff bel ie ves that the proposed mo ratorium 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 fac i lities . The moratorium would not prohibit co-location of new antennas and equ ipm ent on an existing wireless facility or the maintenance , updating , repair, or improvement of an existing wireless facility provided that the physical dimensions of the wireless facility are not substantia lly changed . CONCLUSION: Th e Temple City Municipal Code needs to be updated to provide adequate regulations for wireless facilit ies . While new regulations are being contemplated , it is necessary and appropriate to extend t he existing 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: Extending the existing moratorium wou ld not in and of itself have any impact on the Fiscal Year 2014-15 City Budget. Staff will work with th e City Attorney's Office to prepare regulation s for wire less fa c il iti es , wh ich will in cur cos ts for the City Attorney's time and indirect costs in the form of staff time and resou rc es . However, these costs would be incurred even without the proposed moratorium . ATTACHMENT: A. Urg ency Ordinance No . 15-1000 ATTACHMENT A URGENCY ORDINANCE NO. 15-1000 AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TEMPLE CITY, CALIFORN IA, EXTENDING A MORATORIUM ON A LL NEW W IRELE SS TELECOMMUNICATION FACILITIES THE CITY COUNC IL OF THE CITY OF TEMPLE CITY ORDAINS AS FOLLOWS: SECTION 1. Findings. A. Pursuant to Government Code Sections 36937 and 65858 , the City Council ado pted Urg ency Ordinan ce No . 15 -998 on January 20 , 2015 , establ is hing a moratorium on the is suance of any new permit or other approva l for new or relocated wireless te lecommun ications facilit ies w ith in the City. The Urgency Ord inance, by law, is effective for only 45 days and is therefore set to exp ire on Ma rch 6 , 2015 . B. Pursuant to Go vernmen t Code Section 65858 , the City may , after notice and a pub li c hea r ing , extend the Urgency Ord in a nce for an additiona l 10 months and 15 days . C. The factual basis for extending the morator ium includes the fo llow ing : 1. Under Publi c Util ities Code Sect ion 7901 .1, the City is authorized to adopt reasonab le time, place , and manner regu lations with respect to the manner in which publ ic rig hts-of-w ay may be acce ssed by telephone compan ies , including wireless commun ication com pan ies that have been granted state authori zat io n perm itting the construction of fac ili t ies in public r ights-of-way . 2 . In addi ti o n, un der Section 332 of T itle 47 of the Un ite d States Code, the Ci ty may regulate the placement, construction , and modification of wire less telecommu nication facilities , subject to specified limitations. 3. As used in th is ordinance, "W irel ess Facilities " means all equipment in sta ll ed for the purpose of providing w ireless transmission of voice , data, image s, or other information inclu ding , but not lim ite d to , ce llul ar te lephone serv ic e , personal communications services , and pag ing se rvice s , consisting of equ ipment and network compo nents such as towers , utility poles , transmitters, base stations , and emergency power systems . 4. The T em ple City Municipal Code (TCMC) is sile nt with respect to the development, siting , in stallation , and operat io n of Wireless Fa ci li ties in C ity rights-of-way as well as on other public or pr iva te prope rty . Th e City has been re quir ing Wireless Faci litie s to apply for and receive a Conditional Us e Permit , even though Wireless Fac ili t ies are not expressly lis ted in the TCMC as requiring a Cond it ional Use Perm it. 5. State and fed eral la w address ing the scope and manner of local r egulat io n of Wireless Faci li ties co ntinues to deve lop and evo lve as evidenced by the followi ng cases an d rule c hanges : a. In Sprint T elephone PCS , L.P . v. County of San Diego (2008) 543 F.3d 57 1 ("Sprint Teleph one"), the Nin th C ircuit Court of Appeals overruled seven years of Nin th Circ uit jurisprudence re lati ng to 47 U.S.C. § 253 , a prov isio n of Federa l Telecommunications Act that , until this case was decided , had been interpreted to se vere ly li mit local authority to regulate Wireless Facilities. Urgency Ordinance No . 15-1000 Page 2 of 5 b. In Sprint PCS Assets . LLC v. City of Palos Verdes Estates (200 9) 583 F.3d 716 ("Sprint PCS "), the Ninth Circuit Court of Appeals set out sign ificant new standards establishing how local governments may consider and decide app lications for Wireless Facilities to be located within the public right-of-way . c. On February 22 , 2012, Section 6409(a ) of the Middle Class Tax Re lief anq Job Creat ion Act of 2012 ("Act") was enacted and changed how co-located W ireless Facilities must be eva luated , 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 discretio n in cons id ering co-location of W ireless Faci li ties in the public right-of-way , and on pub lic and private property. d.On October 17 , 2014 , the Federal Commun ic at ions Comm iss ion ("FCC ") issued a Report and Order updating its rules and procedu re s governing new and modified Wireless Facilities , which includes clarifications on local zoning powers w ith respect to W irele ss Faci li ties and the procedures for the review of siting appl ications . 6 . The City has recent ly rece ived and anticipates receiving additiona l requests by te lecommunications providers to establish new or expanded W ireless Facilities within the City . However, as noted above , the existing provisions of the TCMC are inadequate and time is needed to review , study, and revise th e TCMC to fully take into account the impacts related to the t iming , location, and ma n ner of construc tion of Wire less Facilities by multiple telecommunication providers within the publ ic rights-of-way as well as other public and private property , including the pub li c hea lth , safety , and welfare concerns of pedestrian and vehicular traffic. 7. The TCMC is in need of updating to protect the publ ic against the potent ia l health , safety , and we lfare dangers caused by multip le telecommun ication prov iders construct in g W ir eless Faciliti es throughout the City . The City requ ires additional time to prepare , evaluate and adopt reasonable regulations regard in g the use of the pub lic rights-of-way and other public and private property within the City for Wireless Facil ities. 8. The absence of this ordinance wou ld impa ir the order ly and effective implementatio n of contemplated amendments to the TCMC , and any further authorization to construct Wireless Facilitie s in the City 's rights -of-way or other pub li c or private property w ithin the City durin g the period of this moratorium may be in conflict with or may frustrate the contemplated updates and rev is ions to the TCMC. 9 . Without the enactment of this ord inance , multiple telecommunication p rovi ders could qu ickly receive perm its to install Wireless Facilities that pose a threat to the public health , safety, and welfare . For example, without this ord inance, W irel ess Fac ilities could: a . Create land use conflic ts and incompatib ili ties in cluding e xce ss ive heigh t of po les and towe rs ; b. Create visual and aesthetics blights and potential safety concerns arising from excessive size, heights, noise, or lack of camouflag ing of Wireless Urgency Ordinance No . 15-1000 Page 3 of 5 Facili ties including the associated pedestals , meters , equ ipment boxes, and power generators ; c. Create unnecessary visual an d aesthetic bl igh t by fail ing to utilize alternative technolog ies or capitalize on co-locat ion opportunities ; d. Cause substantial d isturbances to rights-of-way through the installation and ma intenance of Wireless Facilit ies ; e. Create traffic and pedestr ian safety hazards due to the unsafe location of W ireless Facil ities ; and · f. Negatively impact the predom in antly residential quality and character of the City. 10. The City Counc il furthe r finds that this moratorium is a matter of lo cal and City- w ide importance and is not directed towards any particular telecommun ication prov ider that currently seeks to establi sh a W ireless Fac ility. D. Pursuant to Government Code Section 65858(d), the City has issued a report re lative to the steps taken to alleviate the cond it ions that necessitated the adoption of Urgency Ordinance No. 15-998 , which report is in corporated herein by this reference . E. The C ity Coun cil finds tha t th ere is a cu rrent and immediate th rea t to the publ ic hea lth, safety , an d we lfare based on th e above f ind ings, an d upon that basis has determi ned that an ex tension of the moratorium enacted under Urgency Ordinance No . 15-998 prohibiti ng the issu ance of new permits o r approvals for new Wireless Fac ili ties in public r ights-of-way or other public or pr ivate property w ithin the C ity is warranted . SECTION 2. Environmental Review. The City Council finds that this urgency interim ord in ance is not subject to the Californ ia Env ironmental Qual ity Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a d irec t or reasonably foreseeable in direct physica l change in the env ironment), 15060(c)(3) (the activ ity is not a proj ect as defined in Section 15378), and 15061 (b)(3) (the activity w ill not have a sign ificant effect on the environment) of the CEQA Guidel i nes, Californ ia Code of Regu lat ions , Title 14 , Chapter 3. These findings are premised o n the fact that the adop tion of th is urgency interim ordinance will mainta in ex isting environmental co nd itions arising from the City 's current land use regulations withou t significant change or alte rat ion . SECTION 3 . Applicability . Th is ordinance applies to al l app li cat ions fi led but not complete and all new appl ications submitted to the City after the effectiv e date of th is ord inance for the insta ll ation or relocat io n of Wireless Faci li t ies within the City, i nclud ing within public rights-of-way and on other property . SECTION 4. Extensi on of Moratorium on New Wireless Facilities. A. Except as provided in Section 5 below , for a period of 10 months and 15 days from March 6 , 2015 , no permits or other approvals may be iss u ed for any: 1.1nstallation of a new W ireless Facility; 2 . Relocation of an existi ng Wireless Fa cility . B. Except to the extent otherwise proh ib ited by law, this temporary moratorium is not intended to, and does not, affect the acceptance and /or processi ng of permit appl ic ations deemed complete as of the effective date of this moratorium for any W ireless Fa cili t ies described in Urgency Ordin ance No . 15-1000 Page 4 of 5 Section 4(A ). City staff is hereby di rected to accept appli cations for W ire less Facility installations and re locations rece ived after the effective date of th is ord inance; however, any new standards for such Wireless Facilities and the perm itting thereof wh ich are adopted during the moratorium and are effective at the expiration of the moratorium will apply to such applications. Any time limits or mandatory approval time frames relative to the processing or action upon perm it appl icat ions for any W ireless Facilities described in Sect ion 4(A ) are to ll ed during the term of th is moratorium . The City Co uncil intends to terminate this morator ium as soon as reasonably feas ible with in a timeframe to allow the adopt ion of comprehens ive new land use regulations w ith respect to Wireless Fac ilit ies . SECTION 5. Exceptions . The provisions of th is ord i nance shall not be construed to proh i bit the issuance of perm its or approva ls for the following : A. The co-location of new ante nnas and other equipment on an existing Wireless Fac ility; B. The maintenance , updating , repa ir or improvement of an exi sting W ire less Facility , prov ided that the phys ical dimens ions of the W ireless Facil ity are not substantially changed . T he determination of whether the physica l d imensions will be substantially changed shall be in accordance with criteria stated in the FCC Report and Order dated October 17 , 2014 . SECTION 6. Legal and Pl anning Studies . The Commun ity Deve lopment Department and the City Attorney 's Office are di r ected to continue to study and analyze issues re lated to the establishmen( permitting , and operation of Wireless Facilities with i n the City , and the potential impacts of such Facilities on public health , safety and we lfare of the commun ity with respect to the concerns identified in t his ordinance , the des irability of such Facilities in various locations , and the extent of regulatory controls , if any , to impose on su c h Facilities. SEC T ION 7 . Seve rability . If an y section , subsect io n, sentence , clause , or phrase of th is ord i nanc e is for an y reason he ld to be inva lid or unconst itutiona l by a decis ion of any court of competent ju ri sd iction , such deci sion will not affect the vali dity of the rema ining port ions of th is ord ina nce . The City Co unc il hereby declares that it wou ld have passed th is ordinan ce and each and every se ction , sub section , sentence; clause, o r phrase not declared i nva li d or unconstitutiona l without regard to whether an y portion of the ordinance wou ld be subsequent ly decl ared 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 adopt ion by a four-f ifths vote of the City Council and wi ll extend for a period of 10 months and 15 da ys from March 6 , 2015 , at wh ich time it wil l automatica ll y expire unless extended by the City Council in accordance with Ca li forn ia Government Code section 65858 . . SECTION 9. Publicat ion . The City Clerk is directed to cause thi s ordinance to be publ ished in the manner requ ired by law . PASSED , APPROVED , AND ADOPTED th is 17th day of February, 2015 . Carl Blum , Mayor Urgency Ordinance No . 15-1000 Page 5 of 5 ATTEST : Peggy Kuo City Clerk APPROVE D AS TO FORM : Eric S . Vai l City Attorney I, Peggy Kuo , C ity Clerk of the City of Temple C ity, do hereby certify that the forego ing Urgency Ordinance No . 15-1000 was in troduced 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 17th day of February, 2015 by the following roll-call vote: AYES : NOES : ABSENT: ABSTAIN : COUNC ILM EMBERS : COUNC ILM EMBERS : COUNC ILMEMBERS : COUNCI LMEMBERS : Peggy Kuo CITY CLERK