HomeMy WebLinkAbout2003-12-09; City Council; NS-684; Prohibit Wireless Communication Facilities...ORDINANCE NO. NS- 684
AN URGENCY ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF CARLSBAD, CALIFORNIA, TO
PROHIBIT THE ISSUANCE OF PERMITS FOR THE
PLACEMENT OF WIRELESS COMMUNICATION
FACILITIES IN THE PUBLIC RIGHT OF WAY.
WHEREAS, the City Council has carefully considered the issues in
the attached agenda bill and the recommendations of the staff; and
WHEREAS, the City has recently obtained two preliminary
applications for the construction of wireless communication facilities, including
antenna and ground equipment, in the public right of way; and
WHEREAS, the City’s municipal code requires a conditional use
permit for quasi-public facilities such as wireless communication facilities, and the
City’s adopted Policy No. 64 regarding “Review and Operation Guidelines for
Wireless Communication Facilities”, do not specifically address standards for
consideration of location of wireless communication facilities in the public right of
way; and
WHEREAS, changes in wireless telecommunications technology,
additional licenses granted by the Federal Communication Commission and the
increased demand for wireless communication services have led to a significant
increase in the demand for wireless communication facilities within the City; and
WHEREAS, the citizens of Carlsbad have expressed significant
concern relating to the location of wireless communication facilities within the City;
and
WHEREAS, the citizens of Carlsbad have also expressed a desire
that this City receive adequate wireless telecommunication services provided that
the facilities are designed and located to minimize safety and aesthetic concerns;
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and
WHEREAS, information received from the industry and other
governmental agencies that have studied current technology establishes that
wireless communication facilities can be designed and installed in a number of
ways that will minimize health, safety, and aesthetic concerns; and
WHEREAS, the City has the responsibility to manage the public right
of way in order to protect the health, safety and welfare of citizens and others
presently using the right of way; and
WHEREAS, the City requires time to study the feasibility of allowing
location of wireless communication facilities in the public right of way, and there are
a number of other potential sites for wireless communication facilities within the City
located outside of the right of way; and
WHEREAS, the City requires time to study the feasibility of collocation
of wireless communication facilities within the public right of way, since Policy No.
64 encourages collocation of wireless communication facilities to minimize
aesthetic impacts; and
WHEREAS the City requires the time to study the potential safety
hazards to persons and property of poles, antennas and equipment boxes in the
public right of way; and
WHEREAS, the City requires the time to study whether fair and
reasonable compensation can be charged for use of the public right of way by
telecommunication providers; and
WHEREAS, local federal and state court decisions have disagreed on
the right of wireless communication facilities to locate in the public right of way
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assuming other adequate sites within the City are available, and at least one
tentative state court ruling on the subject is pending; and
WHEREAS, processing applications for wireless communication
facilities in the public right of way at the present time, without the information
necessary to determine if such facilities can be designed to allow for collocation
given the height limitations for structures in the public right of way, and without
consideration of the coverage limitations of each facility requiring numerous sites to
adequately provide for competing providers, would not be in the best interests of
the public health, safety, and welfare; and
WHEREAS, processing applications for wireless communication
facilities in the public right of way at the present time without the information to
determine if location of such facilities in the right of way will present unacceptable
safety hazards to pedestrians and automobile traffic as well as adjacent properties,
particularly if there is a necessity for numerous such facilities in the public right of
way in order to accommodate the various telecommunications carriers;
NOW, THEREFORE, the City Council of the City of Carlsbad,
California does declare that an emergency exists in that the issuance of right of way
or conditional use permits for wireless communication facilities without adequate
study of the requirements of the entire spectrum of wireless providers and without
study of the ability of wireless providers to eliminate or minimize safety and
aesthetic concerns is likely to result in adverse effects on the health, safety and
welfare of the citizens of Carlsbad,
NOW, THEREFORE, the City Council of the City of Carlsbad,
California does resolve as follows:
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Ordinance No. NS-684 5
1.
2.
That the above recitals are true and correct.
That the Planning Director study the propriety of location of
wireless communication facilities in the public right of way with the assistance of
the Public Works/Engineering Department, the Telecommunications Policy Team
and outside telecommunications consultants; and
3. Moratorium:
a. That pending review and study and report or
recommendation of the Planning Director, no permit shall be issued for the
construction, placement, erection, or alteration of any structure in the public right of
way to accommodate a wireless communication facility.
b. That applications of wireless communication providers for
cell sites in locations within the City other than the public right of way shall continue
to be processed and considered in accordance with existing municipal code
provisions and Policy No. 64.
4. In order to maintain the status quo and preserve the health,
safety and general welfare pursuant to Government Code sections 65858 and
36937, it is necessary for this ordinance to effect immediately.
5. Following the adoption of this ordinance, the City Council shall
hold a public hearing on January 20, 2004 to consider extending this
ordinance for up to ten (IO) months and fifteen (15) days pursuant to Government
Code section 65858(a). This City Clerk is directed to notice the hearing since
required by Government Code section 65090.
6. The City Council may amend this ordinance from time to time if
it finds there are changed circumstances in the facts that lead to its adoption
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EFFECTIVE DATE: This urgency ordinance shall be effective
immediately upon passage and shall remain in full force and effect for 45 days from
its date of adoption unless the City Council extends the interim ordinance or until
the City Council has received, considered, and acted upon the Planning
Commission recommendation for a zone code amendment of Chapter 21.42
pertaining to conditional use permits for quasi public facilities, and any
corresponding amendments to Title 21 or Title I1 as deemed appropriate,
whichever is sooner.
SEVERABILITY CLAUSE: If any section, subsection, sentence,
clause, phrase or part of this urgency ordinance is for any reason held to be invalid
or unconstitutional by the final decision of any court of competent jurisdiction, such
decision shall not affect the validity of the remaining parts of this urgency
ordinance. The City Council hereby declares that it would have adopted this
urgency ordinance and each section, subsection, sentence, clause, phrase or part
thereof irrespective of the fact that any or more sections, subsections, clauses,
phrases, or parts be declared invalid or unconstitutional.
Furthermore, if the entire Ordinance or its application is deemed
invalid by a court of competent jurisdiction, any repeal of the Carlsbad Municipal
Code by this Ordinance will be rendered void and cause such Carlsbad Municipal
Code provision to remain in full force and effect for all purposes.
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Ordinance No. NS-684
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INTRODUCED, PASSED AND ADOPTED at a regular meeting of the
City Council of the City of Carlsbad on the 9th day of December , 2003, by
the following vote, to wit:
AYES: Council Members Lewis, Finnila, Kulchin, Hall and Packard
NOES: None
ABSENT: None
APPROVED AS TO FORM AND LEGALITY
ATTEST:
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