HomeMy WebLinkAbout2004-01-20; City Council; 17474; Ord NS-684 extensionCITY OF CARLSBAD - AGENDA BILL
AB# 17.474
MTG. 01/20/04
DEPT. PLN
EXTENSION OF URGENCY ORDINANCE NO. NS-684 TO
PROHIBIT THE ISSUANCE OF PERMITS FOR THE
PLACEMENT OF WIRELESS COMMUNICATION FACILITIES
IN THE PUBLIC RIGHT-OF-WAY
CITY ATTY.
RECOMMENDED ACTION:
That the City Council INTRODUCE AND ADOPT Urgency Ordinance No. NS-690 , to extend
Urgency Ordinance No. NS-684, by four-fifths vote of the City Council, pursuant to Government Code
sections 65858 and 36937, for ten (10) months and fifteen (15) days, to prohibit the issuance of
permits for the placement of wireless communication facilities in the public right-of-way.
ITEM EXPLANATION:
At its meeting December 9, 2003, the City Council adopted Urgency Ordinance NS-684 to prohibit
the issuance of permits for the placement of wireless communication facilities in the public right-of-
way and Resolution No. 2003-321 declaring the City Council’s intention to have staff study and
recommend revisions to the Municipal Code and City Council Policy No. 64 regarding the placement
of wireless communication facilities in the public right-of-way. At the City Council meeting of
December 16, 2003, the City Council authorized the Planning Director to expend up to $50,000 for
telecommunication consultants to assist in the study of placement of wireless communication
facilities in the public right-of-way (Resolution No. 2003-351).
Staff has not yet completed its study and recommendations and is therefore recommending that
Urgency Ordinance No. NS-690 be adopted by a four-fifths vote of the City Council,
pursuant to Government Code sections 65858 and 36937, to extend, for ten (IO) months and fifteen
(15) days, Urgency Ordinance NS-684 to prohibit the issuance of permits for the placement of
wireless communication facilities in the public right-of-way. This action will provide Planning
Department staff, with the assistance of the Public WorkdEngineering Department, the
Telecommunications Policy Team, and outside telecommunications consultants, with the necessary
time needed to complete its study and provide appropriate recommendations to the City Council.
ENVIRONMENTAL:
The adoption of this Urgency Ordinance will authorize additional time for staff to study and gather
information regarding 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.
FISCAL IMPACT:
There will be expenditures of staff time in formulating any recommendations to the City Council, as
well as time and up to $50,000 in expenditures for telecommunications experts previously authorized
by the City Council (Resolution No. 2003-351).
EXHIBITS:
1. City Council Urgency Ordinance No. NS-690
DEPARTMENT CONTACT: Gary T. Barberio, Principal Planner, (760) 602-4606,
gbarb@ci.carlsbad.ca.us
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ORDINANCE NO. NS-690
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA, EXTENDING URGENCY
PERMITS FOR THE PLACEMENT OF WIRELESS
FOR AN ADDITIONAL TEN MONTHS AND FIFTEEN DAYS.
WHEREAS, at its regular meeting of December 9, 2003, the City Council of the
City of Carlsbad, California adopted Urgency Ordinance No. NS-684 to prohibit the issuance of
permits for the placement of wireless communication facilities in the public right-of-way and
adopted City Council Resolution No. 2003-321 declaring the Council’s intention to have staff
study and recommend revisions to the Municipal Code and City Council Policy No. 64 regarding
the placement of wireless communication facilities in the public right-of-way; and
ORDINANCE NO. NS-684 TO PROHIBIT THE ISSUANCE OF
COMMUNICATION FACILITIES IN THE PUBLIC RIGHT-OF-WAY
WHEREAS, Government Code section 65858 authorizes extension of said
Urgency Ordinance, after notice and hearing, by a four-fifths vote for up to ten (IO) months and
fifteen (1 5) days; and a subsequent extension once for up to one additional year; and
WHEREAS, this ordinance is adopted pursuant to Government Code, Section
65858(a) allowing the extension of such urgency odinance as amended by a four-fifths vote of
its legislative body of ten (IO) months and fifteen (15) days or until staff reports its
recommendation to the City Council;
WHEREAS, Urgency Ordinance NS-684 is still necessary to protect the public
health, safety, and welfare while the study and recommendations are being completed.
NOW, THEREFORE, the City Council of the City of Carlsbad 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. The facts constituting the emergency are those set forth in
Agenda Bill 17,401, dated December 9, 2003, on file with the City Clerk and made a part hereof.
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NOW, THEREFORE, the City Council of the City of Carlsbad does resolve as
follows:
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.
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
alternation 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 City Council 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 take effect immediately.
5. 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.
EFFECTIVE DATE: This Urgency Ordinance shall be effective immediately upon
passage and shall remain in full force and effect for ten (IO) months and fifteen (15) days from
its date of adoption unless extended by the City Council according to law.
At least ten (IO) days prior to the expiration of this urgency ordinance, the City
Council shall issue a written report describing the measures it has taken to alleviate the
conditions that lead to the adoption of this urgency ordinance. The City Clerk of the City of
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Carlsbad shall certify to the adoption of this urgency ordinance and cause it to be published
once in a newspaper of general circulation in the City of Carlsbad within fifteen (15) days of the
adoption.
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 parts be declared invalid or unconstitutional.
Furthermore, if the entire urgency 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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INTRODUCED, PASSED, AND ADOPTED at a regular meeting of the City
Council of the City of Carlsbad, California, held on the 20th day of January , 2004
by the following vote, to wit:
AYES: Council Members Lewis, Finnila, Kulchin, Hall, Packard
NOES: None
ABSENT: None
ABSTAIN: None
AROVED AS TO FORM AND LEGALITY
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Zkd// i7474 /”* 12390 El Camino Real
San Diego, California
92130
FISH 8~ RICHARDSON P.C.
Frederick P. Fish
1855-1930
W.K. Richardson
1859-1951
BOSTON
DALLAS
DE LA WAR E
NEW YORK
SAN DIEGO
SILICON VALLEY
TWIN CITIES
WASHINGTON, DC
January 14,2004
Claude A. Lewis, Mayor
Ramona Finnila, Mayor Pro Tern
Matt Hall, Council Member
Ann J. Kutchin, Council Member
Mark Packard, Council Member
Office of the City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Telephone
858 678-5070
Facsimile
858 678-5099
Web Site
www.fr.com
Email
pascucci@fr.com
Re: Carlsbad Urgency Ordinance No. NS-684
Dear Mayor Lewis, Mayor Pro Tem Finnila, and City Council Members:
This firm represe ts Sprint PC . ’I am writing regarding the City of Carlsbad’s
moratorium on the issuance of permits for construction of wireless
telecommunications facilities il: the public right-of-way (“ROW’). We are informed
the Council will hold a public hearing on January 20,2004, to consider extending the
moratorium for an additional ten months and fifteen days. This moratorium conflicts
with federal law and, on behalf of Sprint, we respecthlly request that the City
Council reject any attempt to extend it.
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passage and enforcemen Q-f-2 o rgency Ordinance No. NS-684, which places a
Federal and state laws significzntly affect the siting of wireless telecommunications
facilities, particularly those in the right-of-way. In fact, federal law prohibits the
enforcement of legislation that results in a moratorium on the provision of wireless
telecommunications services.’ In 1996, Congress passed the Telecommunications
Act of 1996 (the “Act” or “TCA”) in an effort to limit the authority of local and state
governments to regulate installation of telecommunications facilities.2 As evidenced
below, the Urgency Ordinance violates several TCA provisions.
A. The Urgency Ordinance Violates the Prohibitions Established in Section
253(a) of the TCA.
Section 253(a) of the Act preempts state and local regulations that prohibit or have
the effect of prohibiting the provision of telecommunications service:
47 U.S.C. 9 332(c)(7) and 253(a).
President Clinton signed the TCA into law on February 8, 1996.
FISH 8r RICHARDSON P.C.
Claude A. Lewis, Mayor
January 14,2004
Page 2
No state or local statute or regulation, or other State or local legal
requirement, may prohibit or have the effect or prohibiting the ability of any
entity to provide any interstate or intrastate telecommunications servicc3
Within the Ninth Circuit Court of Appeals (which governs California and several
other western states), courts have interpreted section 253(a) to prohibit ordinance
provisions that retain discretion to deny permit^;^ local license requirement^;^ local
franchise requirements;6 collection of information about the description of
telecommunications services to be provided or a carrier’s hture business and
construction plans (Le., master plan^);^ and broad exercises of discretion by local
municipalities on the basis of open-ended criteria or criteria not related to the
permissible types of regulation described in the quoted text above.’ The Ninth Circuit
has recognized with approval similar prohibitions by other courts.’
The sole purpose of the Urgency Ordinance is to ban the issuance of permits for and
the installation of wireless telecommunications facilities. There is no dispute that this
ban halts the placement of wireless telecommunications facilities in the right-of-way.
In doing so, it impermissibly prohibits the provision of wireless telecommunications
services. The Agenda Bill for the Urgency Ordinance provides as follows:
The prohibition on the issuance of permits for the placement of wireless
communication facilities in the public right of way, which include 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
47 U.S.C. 6 253(a).
Cox Communications PCS, L.P. v. City of Sun Marcos, 204 F.Supp.2d 1260, 1266-67 (S.D. Cal.
@est Communications Cop. v. City of Berkeley, 146 F. Supp. 2d at 1097.
Id.
Id. at 1098.
Id.
Other decisions have held that section 253(a) prohibits local franchise requirements that do not fall
within a safe harbor provision, such as section 253(c) of the TCA (City ofAuburn at * 15-16; see also,
AT&T Communications v. City of Dallcs, 52 F. Supp. 2d 763,770 (N.D. Tex. 1999) (city’s
requirement of franchise in order to provide services was found to violate section 253(a) of the TCA)),
threats of penalties for failure to obtain a franchise or other municipal consent (Id. at *15 (citing AT&T
Communications v. City ofAustin, 975 F. Supp. 928, 939 (W.D. Tex. 1997)), requirements of
submission of proof of fmancial, technical, and legal qualifications (Id. at *17 (citing Bellsouth
Telecommunications, Inc. v. Town ofPalm Beach, 127 F. Supp. 2d 1348, 1355 (1999)), and
requirements of descriptions of systems, plans or purposes of the telecommunications facilities. (Id.
(citing Bellsouth Communications, Inc. v. City of Coral Springs, 42 F. Supp. 2d 1304, 1309 (1999).)
4
2002). 5
FISH 8r RICHARDSON P.C
Claude A. Lewis, Mayor
January 14,2004
Page 3
Policy 64 regarding “Review and Operation Guidelines for Wireless
Communications Facilities.”
Although the City asserts that the Urgency Ordinance “does not prohibit a provider
from applying for a permit,” it expressly prohibits issuance of such a permit.
Consequently, it violates section 253(a).
B. The Urgency Ordinance Impermissibly Discriminates Against Wireless
Service Providers in Favor of Non-Wireless Users of the Right-of-way.
Section 253(c) preserves limited state and local management of rights-of-way
provided that such management is competitively neutral and nondiscriminatory.” An
ordinance, policy, or denial that favors non-wireless service providers over wireless
service providers in the ROW violates the anti-discrimination provision. Similarly,
an ordinance, policy, or denial that shelters incumbent wireless providers by
subjecting new entrants to requirements that inhibit their ability to compete with
incumbents also violates this provision.” The Carlsbad moratorium only prohibits
installation of wireless facilities while allowing considerably more intrusive
installations. For example, while the moratorium is in effect, other utilities like
SDG&E or SBC may install miles of utility lines and supporting above-ground
equipment within the public right-of-way, including telemetric poles that are
indistinguishable from one of the Sprint proposals that is suspended by the
moratorium. Even if Sprint proposes hanging a single wireless transmission antenna
on one SDG&E pole - with no overhead lines - the City prohibits the Sprint
installation without consideration. Such treatment is discriminatory and arbitrary.
C. The Urgency Ordinance Exceeds the City’s Limited Authority to Impose
a Moratorium Under Section 332(c)(7).
Section 332(c)(7) of the TCA bans local or state regulations that rohibit or have the
effect of prohibiting the provision of personal wireless services: ,P
The regulation of the placement, construction, and
modification of personal wireless service fa~ilities’~ by
any State or local government or instrumentality thereof
lo 47 U.S.C. Q 253(c).
l2 Note that the language of section 332(c)(7)(B)(i)(II) closely tracks the language of 253(a).
l3 Personal wireless services include PCS services. See Sprint Spectrum L.P. v. Town of Durham, 1998
WL 1537756, *1 (N.H. 1998); Omnipoint Communications Enter, Inc. v. Town ofdmherst, 74 F. Supp.
2d 109, 111 (1998).
Sprint Spectrum L.P. v. Jefierson County, 968 F. Supp. 1457 (N.D. Ala. 1997). 11
FISH 8r RICHARDSON P.C.
Claude A. Lewis, Mayor
January 14,2004
Page 4
. . . shall not prohibit or have the effect of prohibiting
the provision of personal wireless services. 14
Section 332(b)(7) restricts a municipality’s ability to implement and enforce local
regulations that place a moratorium on issuance of permits and installation of
facilities. l5 In the first year or two after enactment of the Telecommunications Act of
1996, courts allowed municipalities to enact brief moratoria where they could
establish an exigent need to establish or modify wireless zoning ordinances to comply
with the TCA and address local concerns. l6 However, the TCA has now been law for
nearly eight years and no court has found a moratorium reasonable in recent years.
Courts have shown a keen willingness to reject unfounded justifications for
moratoria. For example, in Sprint v. Jeferson, the court concluded that a moratorium
that lasted for a total of approximately 270 days in three separate ninety day segments
exceeded the municipality’s authority under the TCA.17 In Jeferson, the county
enacted its third ninety-day moratorium approximately fifteen months after the Act
became law and fourteen months after the county enacted zoning legislation
addressing the issue. ’* In finding that the moratorium violated the TCA, the Jefferson
court reasoned that the moratorium could “hardly be considered a ‘necessary and
bona fide effort to act carefully.’” l9
Here, the City adopted the Urgency Ordinance approximately seven years and nine
months after enactment of the TCA. In fact, Sprint submitted its first application for
an encroachment permit in the ROW in June 2002. The issue of installation of
wireless facilities in the ROW is not new to the City in any respect. The City simply
cannot claim that the moratorium is a “necessary and bona fide effort to act
carefully.”
In addition, the City mistakenly relies on California Government Code section 65858
for the establishment of the moratorium period. The federal law discussed above
preempts state law in this area. The City’s stated intent to extend the moratorium
from forty-five days to an additional ten months and fifteen days (approximately 321
l4 47 U.S.C. 4 332(c)(7)(B)(i)(II).
l5 See, e.g., Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. 1457 (N.D. Ala. 1997) (rejecting
moratorium issued fifteen months after enactment of the Act); Sprint Spectrum L.P. v. Town of
Fannington, 1997 WL 631 104 (D. Corm. 1997) (finding nine-month moratorium issued sixteen months
after enactment of Act to violate TCA); see also Agreement between FCC Local and State
government’s Advisory Committee, the Cellular Telecommunications Industry Association (CTIA),
and the American Mobile Telecommunications Association entered into on August 5, 1998.
l6 Id. ~ ..
Sprint Spectrum L.P. v. Jefferson County, 968 F. Supp. at 1466.
Id.
17
l9 Id,
FISH 8r RICHARDSON P.C.
Claude A. Lewis, Mayor
January 14,2004
Page 5
days) exceeds far beyond what the FCC and federal courts have considered to be a
reasonable time period. Even a much shorter moratorium would violate federal law if
it were enacted nearly eight years after enactment of the Act.
Sprint understands that the City wants to create an ordinance to manage the
placement of wireless telecommunications facilities and is willing to help the City
achieve that goal in a lawful manner. In recent years, Sprint has assisted a number of
municipalities to develop lawful ordinances that regulate the installation of wireless
telecommunications facilities. Sprint would be happy to work with the City to
develop a lawful ordinance. However, Sprint will protect its rights under federal law.
On behalf of Sprint, we again urge you to not extend the Urgency Ordinance beyond
its current expiration date, and to process Sprint’s applications submitted prior to the
Urgency Ordinance under the then-existing ordinance.
We look forward to working with you to reach an amicable, lawful resolution of this
matter.
Very truly yours,
Fish & RichardsmT7.C.
aniel T. Pascucci
cc: Ronald Ball, Esq.
10359034.doc
RONALD R. BALL
CITY AlTORNEY
JANE MOBALDI
ASSISTANT CITY ATTORNEY
JULIA COLEMAN
DEPUTY CITY ATTORNEY
SUSANNE M. PARSONS
DEPUTY CITY ATTORNEY
CITY OF CARLSBAD
1200 CARLSBAD VILLAGE DRIVE
CARLSBAD, CALIFORNIA 92008-1 989
(760) 434-2891 FAX: (760) 434-8367
January 20,2004 RANDEE HARLIB
ARDlS SEIDEL
SECRETARY TO CITY ATTORNEY
LEGAL SECRETARY/PARALEGAL
Daniel T. Pascucci, Esq.
Fish & Richardson, P.C.
12390 El Camino Real
San Diego, CA 92130
RE: PUBLIC HEARING FOR CONSIDERATION OF EXTENSION OF A
TEMPORARY PROHIBITION ON THE ISSUANCE OF PERMITS FOR
WIRELESS COMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT OF WAY
Dear Mr. Pascucci:
Thank you for commenting on this proposed ordinance in your letter of January 14,
2004 to Mayor Lewis and the City Council. Your letter concludes that the temporary
moratorium “conflicts with federal law.” We disagree for the reasons discussed below.
We appreciate, however, Sprint’s understanding that the City seeks “an ordinance to
manage the placement of wireless telecommunication facilities” in the public right of way
and we welcome Sprint’s willingness “to work with the city to develop a lawful
ordinance.” In return, we hope Sprint will appreciate that the issue of wireless facility
placements in the public right of way is a new one for the City. As recited in the opening
of Ordinance NS-684, the City has only recently received two applications to place
wireless communications facilities in the public right of way and we have found that
Council Policy Statement No. 64 does not “specifically address standards for
consideration of location of wireless communications” in the public right of way.
A thorough and fair reading of the ordinance contradicts your conclusion’that its sole
purpose is to “ban the issuance of permits for and the installation of wireless
telecommunications facilities.” There are numerous wireless communications facilities
throughout the City of Carlsbad located on public and private property. Indeed, your
client has an application pending with a recommendation of approval before the
Planning Commission to locate its wireless communication facilities on public property
outside of the right of way. We believe that the proposed process will produce benefits
for all wireless carriers and the City through the development of uniform standards for
public right of way placement of facilities. We invite Sprint to join the process. More information will be available soon.
Your review of judicial and administrative precedence does not persuade us that we are
violating the law. To the contrary, one of the earliest approvals of a moratorium on
granting of wireless facility permits dates from nearly eight years ago and from a federal
court in the Ninth Circuit. As with the proposed ordinance, the suspension adopted in
Medina, Washington arose out of a significant citizen concern for their health and safety
and did not prohibit the processing of permit applications:
“The City’s moratorium, however, is not a prohibition on wireless facilities,
nor does it have a prohibitory effect. It is, rather, a short-term suspension
of permit-issuing while the City gathers information and processes
applications. Nothing in the record suggests that this is other than a bona
fide effort to act carefully in a field with rapidly evolving technology.
Nothing in the moratorium would prevent Sprint‘s application, or anyone
else’s, from being granted.” (Sprint Spectrum, L.P. v. Citv of Medina, 924
F.Supp.1036, 1040 (W.D. Washington, 1996)
The Medina case was widely cited following its release and was influential in an
agreement two years later among local governments and industry associations
facilitated by the Federal Communications Commission, which is mentioned in passing
in note 15 of your letter. The parties to the agreement, including a principal personal
wireless service trade associations, recognized that the six-month suspension approved
in Medina might need to be extended. Rather than fix an amount of time, they declared:
“The length of the moratorium should be that which is reasonably
necessary for the local government to adequately address the issues
described in Guideline A.” (Section I.B., local government-industry
agreement, www.fcc.nov/statelocaI/aareement. html.)
It is true, of course, that courts occasionally criticize local governments who consume
more time in moratoria than is deemed to be reasonably necessary for the suspension’s
purpose. The Jefferson County decision you cite is an aggravated case. The
moratorium adopted there did not follow applicable Alabama law. It imposed in three
segments that had the effect, in the court’s view, of discriminating against PCS and
SMRS digital service providers by comparison with their analog competitors who had
entered business prior to or between the moratoria.’ The City shares your desire to
manage its public right of way in a reasonably non-discriminatory manner. We believe it
is reasonable to think in a longer time frame than which is required to process one or
two wireless facility applications. We seek a process that, in the future, will enable all
wireless carriers to have suitable placements approved quickly. It would be
unreasonable to grant one or two applications without a larger plan that will treat
multiple, later applicants fairly and neutrally. The result would be a flood of applications
whose inevitably non-uniform treatment truly would give rise to complaints of
discrimination.
We do not believe that either sections 253 or section 332(c)(7) of the
Telecommunications Act of 1996 prohibit the proposed temporary moratorium. In the
first of these, the issue does not arise unless an actual or effective prohibition of service
is established at the outset. Only then may a local government be required to show that
‘Sprint Spectrum, L.P. v. Jefferson County, 968 F.Supp.1457 (Northern District
Alabama, 1997)
its practices meet the tests of neutrality in Section 253(c). The City’s action here is not
a prohibition because it is temporary and because Sprint has alternative sites available
to it while processing of permits in the public right of way is temporarily suspended. As
to Section 332(c)(7), both the FCC and the industry have endorsed an agreement
acknowledging that a suspension of permits need not constitute a prohibition of service,
even if it exceeds six months. The test instead is how long a moratorium is “reasonably
necessary to adequately address” the issues of health, safety and aesthetics raised by
wireless facility placements in the public right of way. Sprint can help the City to shorten
that period of necessity.2
In Section C, you suggest that moratoria imposed this long after enactment of the
Telecommunications Act of 1996 are necessarily unreasonable. Only recently,
however, have zoning authorities been required to come to grips with technological
developments, such as smaller cell sites and more compact antennas, not foreseen
eight years ago. These developments, as stated on page three of the proposed
ordinance, raise new issues of the viability of co-location and the sheer volume of pole-
mounted equipment that might need to be accommodated in the public right of way.
These are questions on which we will look to Sprint and their wireless competitors for
information and assistance.
We welcome your participation in developing amendments to the Council’s policy of the
processing of permits for wireless communications facilities while this temporary
moratorium is in effect.
ly yours, 0-42”--
RONALD R. BALL
City Attorney
rmh
c: Mayor and City Council
City Clerk
City Manager
Community Development Director
Public Works Director
Assistant City Attorney
Planning Director
Steven Onstot
Nicholas Miller
* Section 332(c)(7)(B) contains a separate requirement that zoning authorities not unreasonably
discriminate between providers of functionally equivalent services. Although wire and wireless service
providers each may seek to occupy the PROW, they are not considered functionally equivalent. Sprint
Spectrum v. Mils, 65 F.Supp.2d 148, - (S.D.N.Y. 1999), partly overturned on other grounds, Sprint
Spectrum v. Mills, 283 F.3d 404 (2d Cir. 2002).
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newspaper printed and published weekly and which news-
paper has been adjudged a newspaper of general circulation
for the cities of Del Mar, Solana Beach, EncinitadCardiff,
Carlsbad, Oceanside, San MarcosNista and the County
Judicial District by the Superior Court of the State of
California, County of San Diego (8/4/94, #677 114, B2393,
P396); and that the notice, of which the annexed is a print-
ed copy, has been published in, each regular and entire issue
of said newspaper and not in any supplement thereof on the
following dates, to-wit:
January 8.2004
Icertify under penalty of perjury that the
foregoing is true and correct. Executed at
Encinitas, County of San Diego, State of
California on the 8th day of January, 2004.
Space above for County Clerk's Filing Stamp
NOTlCE OF PUBUC HEARING
NOTICE IS HEREBY GIVEN to you, because pur interest may be affec&d, that the
1200 Catisbad village Drive, Catisbad, CalMomb. at6013 p.m. on Tuesday, January 20. 2004, to consider a 10 month and 15 day extendon of the Ugency orclinance pmhibifing the lssuance of pennits for the placement of wireless communication facilities in the public right-of-way.
Those persons wishing IO speakon this pmposai arecordiaNy invitedto attend the pub- licbearing. Cqiw ofthe - MI will be aveilable on and atter January 16,2004. I yw have my quesths. please cell Gary Barberio in the Plenning L)epamnent at rn) 602a.
The time within whi yw my Wity challenge mis extem'bn of the urgency ordinance prohibiting the issuance of permits for the placement of wireless communicath fadwes in the pVMk rightd-way, H epproved, is established by state
wut, you msybelimiled to ratsing only those Lmesyw or someon, elsa raised ai ~puWchearlngderaibedinthisnoticaorinwritienamespondence~tothe
c#yoft%ti&3d.wbt: Cilyclerh1200CarlsbadWageMive,Carlsbad,CA 92008, at or prkrtolw, pawc hearing.
CASE W: Lhpwllzyordhenca pmhibiting the &suance d permits for the placement of wir- m@mt&&m fdlltbs in the publk tigh1-o-way.
city council of mealy of hoM 8 pklic hemingat the CoUncJ chambers,
law andlor dly adlnsncs, and is very Shl. H yw challenge Me urgencyofm8nce in
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN to you, because your interest may be affected, that the
City Council of the City of Carlsbad will hold a public hearing at the Council Chambers,
1200 Carlsbad Village Drive, Carlsbad, California, at 6:OO p.m. on Tuesday, January 20,
2004, to consider a 10 month and 15 day extension of the Urgency Ordinance
prohibiting the issuance of permits for the placement of wireless communication
facilities in the public right-of-way.
Those persons wishing to speak on this proposal are cordially invited to attend the
public hearing. Copies of the agenda bill will be available on and after January 16,
2004. If you have any questions, please call Gary Barberio in the Planning Department
at (760) 602-4606.
The time within which you may judicially challenge this extension of the urgency
ordinance prohibiting the issuance of permits for the placement of wireless
communication facilities in the public right-of-way, if approved, is established by state
law and/or city ordinance, and is very short. If you challenge the urgency ordinance in
court, you may be limited to raising only those issues you or someone else raised at the
public hearing described in this notice or in written correspondence delivered to the City
of Carlsbad. Attn: City Clerk, 1200 Carlsbad Village Drive, Carlsbad, CA 92008, at or
prior to the public hearing.
CASE NAME: Urgency Ordinance prohibiting the issuance of permits for the
placement of wireless communication facilities in the public right-of-
way
PUBLISH: January 9,2004
CITY OF CARLSBAD
CITY COUNCIL