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HomeMy WebLinkAbout2003-12-09; City Council; 17401; Prohibiting Wireless Communication FacilitiesCITY OF CARLSBAD - AGENDA BILL 7 9B# 17,401 MTG. 12-9-03 DEPT. CA TITLE: INTRODUCE AND ADOPT URGENCY ORDINANCE NO. NS-684 PROHIBITING THE ISSUANCE OF PERMITS FOR THE PLACEMENT OF WIRELESS COMMUNICATION FACILITIES IN THE PUBLIC RIGHT OF WAY. DEPT. HD. RECOMMENDED ACTION: Introduce and Adopt Urgency Ordinance No. , by a four-fifths vote of the City Council, pursuant to Government Code sections 65858 and 36937, prohibiting the issuance of permits for the placement of wireless communication facilities in the public right NS-684 ofway. intention And, Adopting Resolution No. 2003-321 Declaring the City Council's ITEM EXPLANATION: No. 64 regardin the lacement of Wireless Communication to have staff study and recommend revisions to the Municipal Code and Policy Facilities in txe Pubyic Right-of-way. The Planning Department has received two preliminary applications to install wireless facilities in the public right of way. Both applications are to erect new poles and construct an equipment cabinet as well as an underground vault. To date, no wireless telecommunication facilities have located in the right of way and neither the Municipal Code nor Policy No. 64 specifically address the issue of whether such facilities should be allowed in the public right of way. In most instances, the public right of way is zoned consistently with the adjacent properties on either half of the right of way. The applications currently pending are for installation of new poles. Because such poles and the accompanying equipment would constitute additional obstructions in the right of way, safety is a primary concern. In addition, since poles in the right of way are typically limited in height, the opportunity for co-location appears to be limited and may result in multiple applications for additional poles from both the current applications and other providers, cumulatively resulting in unacceptable aesthetic and safety impacts. The propriety of prohibiting wireless communication facilities from locating in the public right of way has resulted in conflicting court decisions. Lawsuits are currently pending against the City of San Marcos and the County of San Diego. The City of San Marcos case is currently defending a case pending in state court which has resulted in the San Diego Superior Court issuing a tentative ruling which favors the City, disallowing wireless communication facilities in the public right of way if alternative sites are available. This ruling remains subject to a hearing, scheduled for December 5, 2003, and an ultimate written order. MORATORIUM: Government Code section 65858 permits the City Council to adopt an interim ordinance prohibiting the issuance of permits for the placement of wireless communication facilities in the public right of way which may be in conflict with a contemplated zone code amendment that it intends to study within a reasonable time. The urgency ordinance requires a four- fifths vote of the City Council and is effective for 45 days and may be extended after notice in a public hearing for an additional 10 months and 15 days. Government Code section 36937, which would be applicable to Title 11 regulations for the issuance of right of way permits, provides for the immediate adoption of an ordinance when necessary for the preservation of the health and safety of the public. I The prohibition on the issuance of permits for the placement of wireless communication facilities in the public right of way, which includes the entire City of Carlsbad, would prevent the issuance of permits for placement of wireless communication facilities in the public right of way until the City Council can formulate a policy that is in the best interest of the public health, welfare, and safety, and pending amendment of the Municipal Code and Policy 64 regarding “Review and Operation Guidelines for Wireless Communication Facilities”. The City Council’s adoption of the urgency ordinance would give the Planning Director, with the assistance of the Public WorkdEngineering Department, the Telecommunications Policy Team and outside telecommunications consultants, an opportunity to study the issues and recommend a position on the location of wireless facilities in the public right of way, along with any code and/or policy changes necessary to implement those recommendations. Attached for the City Council’s consideration is Urgency Ordinance No. for introduction and adoption, giving legal affect to that determination. Following the adoption of this ordinance, the City Council shall hold a public hearing on January 20, 2004 to consider extending the ordinance for up to ten (1 0) months and fifteen (1 5) days pursuant to Government Code section 65858(a). the City Clerk is directed to notice the hearing as required by Government Code section 65090. NS-684 FISCAL IMPACT: There will be substantial expenditures of staff time in drafting the proposed zone code amendments and policy regulations as well as time and expeke billings in an unknown area for telecommunications outside counsel and outside engineering consultants with expertise in the field of telecommunications in an unknown amount. Staff is requesting authorization to make such expenditures, not to exceed $50,000. ENVIRONMENTAL REVIEW: The adoption of this ordinance will authorize staff to study and gather information regarding the prohibiting of issuance of permits for the placement of wireless communication facilities in the public right of way and, as such, is statutorily exempt from environmental review at this time per section 15262 of the California Environmental Quality Act. Any subsequent revisions to the urgency ordinance will require environmental review and analysis. EXHIBITS: 1. Urgency Ordinance No. NS-684 2. Resolution of Intention No. 2003-321 DEPARTMENT CONTACT: Michael Holzmiller, Planning Director . Page 2 of AB 17,401 12-9-03 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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; 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 Ordinance No. NS-684 Lt 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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: Ordinance No. NS-684 3 5 1 4 c 4 C c E 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 WorkdEngineering 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 4 lrdinance No. NS-684 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 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 11 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. 1111 1111 Ill/ Ill/ Ordinance No. NS-684 1 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: ’ (SEAL) Ordinance No. NS-684 6 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2003-321 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, DECLARING THE CITY COUNCIL'S INTENTION TO HAVE STAFF STUDY AND RECOMMEND REVISIONS TO THE MUNICIPAL CODE AND POLICY 64 REGARDING THE PLACEMENT OF WIRELESS COMMUNICATION FACILITIES IN THE PUBLIC RIGHT OF WAY WHEREAS, the City has recently obtained two preliminary applications for the construction of wireless communication facilities in the public right of way, including poles, underground vaults and equipment boxes; and WHEREAS, the City Council has determined that the City's authority to regulate wireless telecommunication carriers within the public right of way has been further defined by several recent court decisions and that at least one pending state court decision directly addresses that issue; and WHEREAS, the City Council has determined that the City requires time to study the feasibility of allowing location of wireless communication facilities in the public right of way and that in the interim there are a number of other potential sites for wireless communication facilities located outside of the public right of way; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows: 1. 2. That the above recitations are true and correct; That the City Council directs the Planning Director and staff to study and make recommendations regarding the siting of wireless communication facilities in the public right of way. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City Council held on the 9th day of December , 2003 by the following vote, to wit: AYES: Council Members Lewis, Finnila, Kulchin, Hall and Packard NOES: None ATTEST :SEAL) Page 2 of 2 of Resolution No. 2003-321