HomeMy WebLinkAbout09 - OB-2 - Ordinance 12-6 Adopting Amendment to Tit - 9/4/2012CITY COUNCIL AGENDA REPORT
MEETING DATE: SEPTEMBER 4, 2012
ITEM NUMBER:
SUBJECT: SECOND READING OF ORDINANCE 12-6 ADOPTING AN AMENDMENT TO TITLE 19,
CHAPTER 1, ARTICLE 4, SECTIONS 19-14 AND 19-15 REGARDING WIRELESS
TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY
DATE: AUGUST 23, 2012
FROM: PUBLIC SERVICES DEPARTMENT/ENGINEERING DIVISION
PRESENTATION ERNESTO MUNOZ, PUBLIC SERVICES DIRECTOR
BY:
FOR FURTHER INFORMATION CONTACT: FARIBA FAZELI, INTERIM CITY ENGINEER,
(714)754-5335
RECOMMENDATION:
Give second reading and waive further reading to Ordinance 12-6, amending Title 19, Chapter
1, Article 4, Sections 19-14 and 19-15, of the Costa Mesa Municipal Code related to
requirements for wireless telecommunications facilities in the public right-of-way.
ANALYSIS:
On August 21, 2012, City Council gave first reading to Ordinance 12-6. Staff has no further
information on this item.
ERNES MUNOZ
Public Services Director
ATTACHMENT: 1 - Ordinance No. 12-6
FARIBA FAZELI
Interim City Engineer
DISTRIBUTION: Chief Executive Officer
City Attorney
Deputy CEO/Director of Economic and Development
Finance and IT Director
City Clerk Division
ATTACHMENT
ORDINANCE NO. 12-6
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF COSTA MESA TO AMEND TITLE 19,
CHAPTER 1, ARTICLE 4, SECTIONS 19-14 AND 19-
15 REGARDING TELECOMMUNICATIONS
FACILITIES IN THE PUBLIC RIGHT OF WAY.
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY ORDAIN AS
FOLLOWS:
SECTION 1: TITLE 19 CODE AMENDMENT. Title 19, Chapter 1, Article 4 of the
Costa Mesa Municipal Code is hereby amended to read as follows
A. Section 19-14 is amended to include to read as follows:
"Sec. 19-14. - Antennas for telecommunications services.
The city's zoning code sets forth the city's regulatory requirements relating to the siting and
construction of various types of wireless telecommunications facilities commonly used in
providing or receiving wireless telecommunications services on public and private property,
excluding the public rights-of-way.
Sec.19-15. — Wireless telecommunications services provided by telephone corporations in
the public rights-of-way.
(A)
The city council finds and determines as follows:
(1)
The Federal Telecommunications Act of 1996 ("FTCA") preempts and declares invalid all
state rules that restrict entry or limit competition in both local and long-distance telephone
service.
(2)
The California legislature has delegated to the Public Utilities Commission ("CPUC") its
primary authority to regulate local telephone competition, and to issue certificates of public
convenience and necessity to new entrants that are qualified to provide competitive local
telephone exchange services and related telecommunications service, whether using their
own facilities or the facilities or services provided by other authorized telephone corporations.
Section 7901 of the California Public Utilities Code applies equally to wireless carriers and
wireless equipment. Wireless carriers have been determined by the courts to be included in
the CPUC definition of "telephone corporation" in Section 7901, and the definition of
"telephone line" in Section 7901 has been determined by the courts to be broad enough to
include wireless equipment.
(3)
Section 234 (a) of the California Public Utilities Code defines a 'telephone corporation" as
"every corporation or person owning, controlling, operating, or managing any telephone line
for compensation within this state."
(4)
Section 616 of the California Public Utilities Code provides that a telephone corporation "may
condemn any property necessary for the construction and maintenance of its telephone line."
(5)
Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain
their powers of control to supervise and regulate the relationships between a public utility and
the general public in matters affecting the health, convenience, and safety of the general
public, including matters such as the use and repair of public streets by any public utility and
the location of the poles, wires, mains, or conduits of any public utility on, under, or above
any public streets.
(6)
Section 7901 of the California Public Utilities Code ("Section 7901") authorizes telephone and
wireless corporations to construct telephone or wireless telecommunication lines along and
upon any public road or highway, along or across any of the waters or lands within this state,
and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other
necessary fixtures of their lines, in such manner and at such points as not to incommode the
public use of the road or highway or interrupt the navigation of the waters.
(7)
Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to
exercise reasonable control as to the time, place, and manner in which roads, highways, and
waterways are accessed, which control must be applied to all entities in an equivalent
manner, and may involve the imposition of fees. Specifically, it has been determined by the
courts that a municipality has authority to regulate the placement and appearance of
telecommunications equipment installed on its public rights-of-way, and that a municipality
need not grant wireless providers blanket permission to install their equipment throughout a
municipality, but may require wireless providers to go through a site-specific permitting
process provided it is not so burdensome that it runs afoul of Section 7901.
(8)
Section 50030 of the California Government Code provides that any permit fee imposed by a
city for the placement, installation, repair, or upgrading of telecommunications facilities, such
as lines, poles, or antennas, by a telephone corporation that has obtained all required
authorizations from the CPUC and the FCC to provide telecommunications services, must not
exceed the reasonable costs of providing the service for which the fee is charged, and must
not be levied for general revenue purposes.
(9)
Section 1455 of Title 47 of the United States Code mandate approval by local agencies of
certain eligible facilities requests for modification of an existing wireless tower or base station
that does not substantially change the physical dimensions of such wireless tower or base
station.
(B)
In recognition of and in compliance with the statutory authorizations and requirements set
forth above in paragraph (A), the following regulatory provisions are applicable to users of
telecommunications equipment in the public right-of-way ("PROW"), including but not limited
to wireless telecommunications providers, which desire to provide telecommunications
service by means of facilities that are proposed to be constructed within the city's public
rig hts-of-way:
(1)
Users of telecommunications equipment in the PROW must apply for and obtain, the
following, as deemed applicable by the City Engineer:
(a) A "Wireless Telecommunications Use Permit" is required for certain specified wireless
telecommunications structures pursuant to the criteria set forth in Subsection (C) below;
(b) A Wireless Telecommunications "Master Plan" is required for the approval of certain
specified design prototypes of wireless telecommunications structures;
(c) An excavation permit, an encroachment permit, and/or a building permit may be required
as applicable.
(2)
In addition to the information required by this Code in connection with an application for any
required permit, a telephone corporation must submit to the city the following supplemental
information:
(a) A copy of the certificate of public convenience and necessity issued by the CPUC to the
applicant, and a copy of the CPUC decision that authorizes the applicant to provide the
telecommunications service for which the facilities are proposed to be constructed in the city's
public rights-of-way; provided, however, that these requirements may be waived by the city
where the applicant has submitted these documents in connection with a prior application,
and there have been no amendments or supplements to these documents.
(b)
If the applicant has obtained from the CPUC a certificate of public convenience to operate as
a "competitive local carrier," the following additional requirements are applicable:
(1)
As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has
timely filed with the city a quarterly report that describes the type of construction and the
location of each construction project proposed to be undertaken in the city during the
calendar quarter in which the application is filed, which information is sufficient to enable the
city to coordinate multiple projects, as may be necessary.
(2)
If the applicant's proposed construction project will extend beyond the utility rights-of-way, the
applicant must establish that it has filed a petition with the CPUC to amend its certificate of
public convenience and necessity and that the proposed construction project has been
subjected to a full-scale environmental analysis by the CPUC, as required by Decision No.
95-12-057 of the CPUC.
(3)
The applicant must inform the city whether its proposed construction project will be subject to
any of the mitigation measures specified in the Negative Declaration ["Competitive Local
Carriers (CLCs) Projects for Local Exchange Communication Service throughout California„]
or to the Mitigation Monitoring Plan adopted in connection with Decision No. 95-12-057 of the
CPUC. The city's issuance of a ministerial permit will be conditioned upon the applicant's
compliance with all applicable mitigation measures and monitoring requirements imposed by
the CPUC upon telephone corporations that are designated as "competitive local carriers.”
(C)
The purpose of this section is to establish the parameters for discretionary review of a
'Wireless Telecommunications Use Permif' and "Master Plan" to identify processing
procedures, regulations, review criteria, and findings for these requests.
(1) Any wireless telecommunications facility that is to be installed within the public right-of-
way shall require a Public right-of-way encroachment permit.
(2) Except as provided in Subsection (D) any wireless telecommunication facility that is
located in the city's public right-of-way and meets any of the following criteria shall require a
Wireless Telecommunications Use Permit or Master Plan:
(a) If the antenna is greater than 26 inches in length;
(b) If the volume of the Radio Box exceeds 2 cubic feet;
(c) If the facility requires an above ground cabinet/equipment; or
(d) If the facility is located within a 500 -foot radius of a residential zone.
(3) The Wireless Telecommunications Use Permit or Master Plan application shall be
subject to the same planning application review process as for a Minor Conditional
Use Permit as set forth in Title 13, Chapter III, Planning Applications, of the Municipal
Code, except as otherwise indicated in this section. This application process includes,
but is not limited to, a completed application, applicable processing fees, public notice,
and appeals process. The application processing fee is a user fee that shall be
adopted by City Council by resolution.
(4) The Zoning Administrator is authorized to act on and grant approvals of a discretionary
application for a Wireless Telecommunications Use Permit or Master Plan. The
Municipal Code provisions related to the Zoning Administrator's authority are found in
Title 13 of the Municipal Code. The Zoning Administrator shall serve as the final
decision authority or may forward any action to the Planning Commission for review.
An appeal or review of the Zoning Administrator's decision shall be according to the
procedures set forth in Title 2, Chapter IX Appeal, Rehearing and Review Procedure,
of the Municipal Code.
(5) The City Engineer is authorized to:
(a) Act on and grant approvals of ministerial permits related to wireless
telecommunications facilities in the public right-of-way that do not meet the thresholds
identified in Section (C) (2) (a), (b), (c), and (d).
(b) Forward any request related to a wireless telecommunications facility in the public
right-of-way to the Zoning Administrator for review. These may include, but not be
limited to, ministerial permits.
The application process for these referrals to the Zoning Administrator shall be subject
to the same procedures, purpose, conditions, review criteria, and findings as described
for a Wireless Telecommunications use Permit or Master Plan.
(6) Review criteria for the Wireless Telecommunications Use Permit or Master Plan
application shall consist of the following:
(a) The final review authority shall limit their review to the factors allowed under
federal and state law, including the following:
(1) Compatible and harmonious relationship between the proposed facility
and site development or use(s), that exists or has been approved for the
general neighborhood.
(2) Safety and compatibility of the design of the proposed facilities, relevant
structures, landscaping, luminaries and other site features which may include
functional aspects of the site development.
(3) Compliance with any performance standards for wireless
telecommunications facilities as prescribed elsewhere in the Municipal Code, or
by City policy;
(4) Consistency with the General Plan.
(b) The final authority may not consider any impact on the health, safety and
welfare, or any information, evidence, or consideration which exceeds the
authority allowed to it under federal or state law.
(7) Condition(s) of approval for the application shall assure compliance with the applicable
provisions of state and federal laws, assure compatibility with surrounding properties
and uses and protect the public health, safety and general welfare. These conditions
shall be within the authority allowed to the City pursuant to federal and state law.
Prior to processing an application, the Applicant shall furnish documentation from the
CPUC that the listed items below have been met.
(a) When the applicant is leasing access to an existing facility that CPUC approval
has been processed in accordance with Public Utilities Code Section 851.
(b) When the applicant plans deployment of their facility over existing utility Rights
of Way, that they have completed the necessary CPUC review under the
California Environmental Quality Act (CEQA) for any such proposed build -out.
(8) When granting an application, the final review authority shall find that the evidence
presented in the administrative record substantially meets any required conditions
listed below.
(a) The location and placement of wireless telecommunications facilities in
the public right-of-way are reasonably considered along with the
California Public Utilities Code provisions for right of access to the public
right-of-way.
(b) The proposed wireless telecommunications facility is substantially
compatible with developments and uses in the same general area and
would not be substantially detrimental to developments or uses within
the general area.
(c) The proposed wireless telecommunications facility will not be materially
detrimental to the health, safety and general welfare of the public in so
far as the local agency is authorized to determine under federal and state
law.
(d) Antennas and any poles or other structures erected to support antennas
shall be visually compatible with surrounding building and vegetation.
The final review authority may require that the antenna be painted in a
neutral color to complement the existing natural and built environment.
(9) The Wireless Telecommunication Use Permit or Master Plan shall be valid for a ten
(10) year period from the date of approval, unless otherwise indicated in a condition
imposed at the time of granting the application or unless otherwise exempted under
federal or state law. Prior to the expiration of the permit, the applicant may apply for a
ten-year extension of time. If notice was required for the original application, and a
public hearing on the extension is allowed under federal and state law, notice of the
public hearing for a time extension shall be given according to the procedures set forth
in this section.
(10) The city reserves all rights that it now possesses or may later acquire with respect to
the regulation of any cable or telecommunications service that is provided, or
proposed to be provided, by a telephone corporation. These reserved rights may
relate, without limitation, to the imposition of reasonable conditions in addition to or
different from those set forth in this section, the exaction of a fee or other form of
consideration or compensation for use of public rights-of-way, execution of a leasing
agreement, and related matters; provided, however, that such regulatory rights and
authority must be consistent with federal and state law that is applicable to cable or
telecommunications services provided by telephone corporations.
(11) The maximum height of the telecommunication facilities allowed within the public
right of way shall not exceed thirty five (35) feet (above the nearest top of curb
elevation grade level), unless such extension is required to comply with applicable
federal or state health and safety laws. (i.e. CPUC General Order 95).
(D)
Pursuant to Title 47 United States Code Section 1455 and notwithstanding any provision of
this Section to the contrary, a request for a modification of an existing wireless tower or base
station for the collocation of new transmission equipment or removal or replacement of
existing transmission equipment shall be approved ministerially without the processing of a
discretionary use permit provided that such modification does not substantially change the
physical dimensions of such tower or base station from the dimensions approved as part of
the original discretionary permit for the tower or base station. However, any modification to a
wireless tower or base station which substantially changes the physical dimensions of either
the tower or base station, and any other modification to a wireless telecommunications facility
that does not qualify as a wireless tower or base station (as defined in this section) shall be
subject to the permits and authorizations required by this article.
(E)
For purposes of this section, the following definitions shall apply:
(1) "Wireless telecommunications facility" shall have the same meaning as that set
forth in California Government Code 65850.6(d)(2) as may be amended from
time to time.
(2) "Wireless tower" means any structure built for the sole purpose or primary
purpose of supporting antennas and their associated facilities used to provide
services licensed by the FCC. A Distributed Antenna System installed pursuant
to a Certificate of Public Convenience and Necessity issued by the California
Public Utilities Commission, a water tower, utility tower, street light, or other
structure built primarily for a purpose other than supporting services licensed by
the FCC, including any structure installed pursuant to California Public Utility
Code Section 7901 is not a wireless tower for purposes of this definition.
(3) "Base station" means the power supplies, electronic equipment housed in
cabinets and antennas at an existing wireless tower site that together comprise
a wireless tower. Distributed Antenna System installed pursuant to a Certificate
of Public Convenience and Necessity issued by the California Public Utilities
Commission is not a base station for purposes of this definition.
(4) "Substantially change the physical dimensions" means any of the following, and
refers to a single change, or a series of changes over time (whether made by
the same or different entities) viewed against the initial approval for the tower or
base station that individually or cumulatively have any of the effects described
below:
(a) Changing any physical dimension of the wireless tower or base
station in a manner that creates a safety hazard, whether from wind
loading, stress on the wireless tower, or in any other manner.
(b) Changing the physical dimension of a wireless tower where the
changes would be inconsistent with the design of the wireless tower,
or make the wireless towers more visible.
(c) Changing the physical dimensions would require work that would
intrude upon the Public Right of Way, or any environmentally
sensitive area.
(d) Increasing by more than 10% any of the following: the height or width
in any direction of the wireless tower, or the area required for
structures required to support the wireless tower, such as guy wires
as approved and constructed through the discretionary permit
process; provided that in no event shall the height exceed the
maximum height permitted under the city's regulations.
(e) Increasing by more than 10% any of: the height or area
encompassed within any structure or object enclosing the wireless
tower, such as a fence or line of bushes.
(f) Increasing any of an existing antenna array's depth, circumference or
horizontal radius from the wireless tower in any direction by more
than 10%.
(g) Adding more than two antenna arrays to an existing wireless tower,
or adding antenna arrays that, if the array were an existing array,
would be of such depth, circumference or radius as to fall outside of
subsection (F) unless such arrays were approved pursuant to
Government Code Section 65850.6.
(h) The mounting of the new or replacement transmission equipment
would involve installing new equipment cabinet(s) not permitted under
the initial approval and that will not fit within the existing enclosure for
the wireless tower or base station or would require installation of a
new cabinet or enclosure, excluding new equipment and cabinets that
will be installed underground.
(5) A Wireless Telecommunications Master Plan contains design prototypes for
wireless telecommunication antenna facilities, locational criteria for each prototype,
number of facilities, and proposed screening and landscaping.
(6) A Wireless Telecommunications Use Permit is a discretionary request for the
approval of a wireless telecommunications facility in the public right-of-way.
(F)
Each application submitted under Subsection (D) of this Section shall be accompanied by:
{1) a detailed description of the proposed modification to the existing facilities;
(2) a photograph or description of the wireless tower as originally constructed, if
available, and, a photograph of the existing wireless tower and/or base station, and
a graphic depiction of the wireless tower and/or base station after modification,
showing all relevant dimensions;
(3) a description of all construction that will be performed in connection with the
proposed modification; and
(4) a signed statement by a professional engineer licensed and qualified in California,
attesting that the modifications to be performed will not trigger discretionary review
under this section.
Any permit issued under Subsection (D) of this Section will be conditioned, and may be
revoked and the wireless telecommunication facility required to be removed if (a) any
statement made with respect to the WTF is not accurate; or (b) the City Engineer finds that
the modifications necessitated discretionary review.
SECTION 2: ENVIRONMENTAL DETERMINATION. The project has been reviewed
for compliance with the California Environmental Quality Act (CEQA), the CEQA guidelines, and
the City's environmental procedures, and has been found to be exempt pursuant to Section
15061 (b) (3) (general rule) of the CEQA Guidelines, in that the City Council hereby finds that it
can be seen with certainty that there is no possibility that the passage of this ordinance
amending the Zoning Code will have a significant effect on the environment.
SECTION 3: INCONSISTENCIES. Any provision of the Costa Mesa Municipal Code or
appendices thereto inconsistent with the provisions of this ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to the extent necessary to affect
the provisions of this ordinance.
SECTION 4: SEVERABILITY. If any provision or clause of this ordinance or the
application thereof to any person or circumstances is held to be unconstitutional or otherwise
invalid by any court of competent jurisdiction, such invalidity shall not affect other provisions
or clauses or applications of this ordinance which can be implemented without the invalid
provision, clause or application; and to this end, the provisions of this ordinance are declared
to be severable.
SECTION 5: PUBLICATION. This Ordinance shall take effect and be in full force thirty
(30) days from and after the passage thereof, and prior to the expiration of fifteen (15) days from
its passage shall be published once in the DAILY PILOT, a newspaper of general circulation,
printed and published in the City of Costa Mesa or, in the alternative, the City Clerk may cause
to be published a summary of this Ordinance and a certified copy of the text of this Ordinance
shall be posted in the office of the City Clerk five (5) days prior to the date of adoption of this
Ordinance, and within fifteen (15) days after adoption, the City Clerk shall cause to be published
the aforementioned summary and shall post in the office of the City Clerk a certified copy of this
Ordinance together with the names and member of the City Council voting for and against the
same.
PASSED AND ADOPTED this day of 2012.
ERIC R. BEVER
Mayor of the City of Costa Mesa
ATTEST: APPROVED AS TO FORM:
Acting Deputy City Clerk of the City of Costa City Attorney
Mesa