HomeMy WebLinkAboutOrdinance #3748 ORDINANCE NO. 3 748
AN INTERIM ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON
BEACH ESTABLISHING A TEMPORARY MORATORIUM ON THE INSTALLATION OF
WIRELESS TELECOMMUNICATION FACILITIES IN THE PUBLIC RIGHT-OF-WAY,
AND DECLARING THE URGENCY THEREOF, TO TAKE EFFECT IMMEDIATELY
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF HUNTINGTON
BEACH DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Findings and Purpose.
The City Council finds and declares:
1. In September 2002, the City Council adopted Zoning and Subdivision Ordinance
Section 230.96 pertaining to wireless communication facilities and requiring that
all wireless communication facilities comply with the requirements and guidelines
set forth in Section 230.96 (hereinafter, the "Wireless Ordinance"). The purpose
of the Wireless Ordinance included regulation of the location and design of
wireless facilities for the protection of public safety, general welfare, and quality
of life in the City of Huntington Beach. Specifically, section 230.96(G) of the
Wireless Ordinance establishes standards for wireless facilities that are to be
located in the Public Right-of-Way including all City owned, operated or
controlled streets, alleys, rights-of-way in the sidewalks and/or,parkways adjacent.
thereto (hereinafter, the "PROW").
2. In 2005, a dispute developed with Verizon Wireless ("Verizon") regarding the
City's Wireless Ordinance including the provision that requires any wireless
communication facility that is to be constructed on or beneath the PROW or .
installed on existing utility poles, conduits and other facilities of a public utility to
have a franchise agreement with the City.
3. In 2005, the 9`h Circuit Court of Appeals issued a ruling in Metro PCF, Inc_, v.
City and County of San Francisco, 400 F.3d 715 (9" Cir 2005) that clarified the
standards that apply with respect to regulations for wireless telecommunication
facilities, especially as they relate to the requirement that such regulation is not
prohibited nor have the effect of prohibiting the provision of personal wireless
services.
4. In 2006, a three judge panel of the Ninth Circuit Court of Appeals issued a ruling
in the case Sprint PCS v. City of'La Canada Flintridge, in which it determined
that under California Public Utilities Code Section 7901, a city's power to control
the "time, place, and manner in which roads [and] highways are accessed" when
granting telephone companies construction permits does not include the authority
to withhold permits on the PROW based upon aesthetics. However, in a post
ruling memorandum, the Court seemed to broaden the City's basis for permit
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denial to allow consideration of aesthetics in conjunction with other factors, but
not to deny a permit based solely upon aesthetics. More recently, the California
Court of Appeals issued a ruling in Sprint Telephone PCS v. County of San Diego,
(June 20, 2006) 140 Cal. App. 4`h 748 recognizing the right of municipalities to
exercise reasonable control over the time, place and manner by which telephone
corporations use the public right-of-way to install and operate their facilities. In
fact, the California Court of Appeals concluded that a wireless ordinance that
employs the permitting process to regulate the place including location of the
equipment and the manner or the appearance and characteristics of the premises in
which wireless providers use the right-of-way was authorized by the California
Public Utilities Code.
5. As a result of the City's dispute with Verizon and in light of these decisions by
the State and Federal courts, the City needs to refine and develop new regulations
relating to placement of wireless telecommunications facilities in the PROW,
which regulations include provisions relating to the design and aesthetics of such
facilities.
6. It is also the understanding of the City that the League of California Cities is
currently pursuing legislation to amend Public Utilities Code Section 7901.1 to
clarify the ability of cities to regulate facilities that are located within the PROW
on the bases of aesthetic concerns.
7. Based upon the current state of the law, if a temporary moratorium. is not
established, wireless telecommunications facilities could be installed, constructed
or modified in the PROW without conforming to any of the protections afforded
by city regulations. This could lead to wireless telecommunications facilities
which:
i. Create land use incompatibilities;
ii. Create visual and aesthetic blight or view interference due to excessive
size,height, or absence of camouflaging;
iii. Create traffic and pedestrian safety hazards due to unsafe location of
poles, towers, equipment cabinets or other materials or construction,
particularly in PROW locations;
iv. Reduce property values;
v. Create operational conflicts with other land use or facilities authorized or
existing on the same or neighboring sites; or
vi. Deteriorate'the quality of life in a particular community or neighborhood.
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The City Council of the City of Huntington Beach finds that these potential
effects from the installation; construction, or modification of additional wireless
telecommunications facilities in the PROW constitute a current and immediate
threat to the public safety, health and welfare. The City Council further declares
that it is unclear whether the City can regulate wireless telecommunications
facilities in the rights-of-way solely on the basis of aesthetics. It is therefore, the
City's intention to prepare and adopt, within a reasonable time, revised
regulations which will comply with the requirements of State and Federal law and
are consistent with current case law to avoid any legal challenge from the
enforcement of its Wireless Ordinance.
8. Given the unsettled state of the law, as set forth in the foregoing, and the potential
harm to the community by the placement, construction, and modification of
wireless telecommunications facilities in the PROW, this moratorium is being
established to provide time to seek clarification of the law, and permit City staff
to undertake appropriate action and develop appropriate regulations consistent
with the requirements of State and Federal law. The City does not intend that the
moratorium prohibit or have the effect of prohibiting the provision of personal
wireless services; rather, it is a short term suspension on new facilities in the
PROW, and does not limit the development of such facilities on private property
or other public property. The City fully recognizes its responsibilities under the
Telecommunications Act of 1996. The City believes, however, that a temporary
moratorium is in the best interests of the City and its residents in order to assure
that irreversible development activity does not occur'°*that would harm the public
health, safety or welfare.
9. There are pending applications on file with the City for installation of wireless
facilities within the PROW.
SECTION 2. Applicability. The provisions of this ordinance shall apply to all facilities
on, below, or above a City owned, operated or controlled street or alley, public rights-of-way in
the sidewalk, and/or parkway adjacent thereto, used for or associated with the transmission or
reception of wireless communications services (including personal communication, cellular and
paging) and including, without limitation, antenna, masts, poles, towers, conduits, cables,
structures, buildings, additions to existing antenna, masts, poles, towers, structures or buildings
(the "Facilities"), which Facilities shall be subject to all of the provisions as set forth below
unless otherwise specified in this ordinance, notwithstanding any other regulations of the City.
SECTION 3. Moratorium.
1. Moratorium applies to all public rights-of-way within the City. Within all areas
situated in the PROW, there shall be a temporary moratorium in effect,
commencing on the effective date of this ordinance, prohibiting the installation of
any and all Facilities, as set forth in Section 2, and/or the issuance of permits or
installation of such Facilities, except as described in Section 4.
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2. This temporary moratorium is intended to prohibit issuance of permits for such
Facilities. The City may continue to process such applications during the term of
the moratorium; however, any new standards for such Facilities and the
permitting thereof which are adopted during the moratorium and are effective at
the expiration of the moratorium shall nevertheless apply to such an application.
To the extent applicable, any time limits relative to the processing and action
upon permit applications for any and all Facilities described above in Section 2
are tolled during the term of the moratorium.
SECTION 4.'Exceptions.
The provisions of this ordinance shall not apply to:
1. Government owned and operated communications Facilities and/or existing
emergency medical care provider owned and operated communications Facilities, .
or new Facilities in the same location as existing Facilities, which are required to
repair, replace, maintain or enhance such existing Facilities provided such
Facilities are to be used primarily to protect public health, safety and welfare, as
determined by the Director of Public Works.
2. Any intended Facilities exempted from this ordinance by Federal law.
3. Nothing herein shall be deemed to limit the processing or approval of wireless
telecommunications facilities that are to be located on public and private property,
or public property other than in the PROW, subject to the provisions of the
Huntington Beach Zoning and Subdivision Ordinance.
SECTION 5. CEQA Exemption. The City Council finds that, regarding the California
Environmental Quality Act (CEQA), there is no possibility that the adoption of this ordinance
may have a significant adverse effect on the environment (CEQA Guideline 15061 (b)(3))
because this ordinance will reduce the possibility of such effects by: limiting the range and
intensity of new uses possible in the areas it covers.
SECTION 6. Effective Date. This ordinance is declared to be an urgency ordinance
measure adopted pursuant to the provisions of Government Code Section 65858. As set forth in
the findings above, this ordinance is necessary for preserving the public safety, peace, health and
welfare. Accordingly, upon adoption by a four-fifths vote of the City Council, this ordinance
shall take effect immediately.
SECTION 7. Duration. This ordinance shall.be of no further force or effect 45 days after
the date of its adoption, unless prior to that date the City Council extends its term.
SECTION 8. If any section, subsection, sentence, clause, or phrase of this ordinance is
for any reason held to be invalid or unconstitutional by a decision of any court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council hereby declares that it would have passed this ordinance and each
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and' every section, subsection, sentence, clause, or phrase, not declared invalid or
unconstitutional without regard to whether any portion of the ordinance would be subsequently
declared invalid or unconstitutional.
SECTION 9. The City Clerk shall cause this ordinance to be posted in three places
designated by City Council pursuant to City Charter Section 500(c) and published by title with a
brief summary at least once within fifteen (15) days after its adoption in a newspaper of general
circulation, published in the County of Orange and circulated in the City, in accordance with
Section 36933 of the California Government Code; shall certify to the adoption of this ordinance
and shall cause a certified copy of this ordinance, together with proof of publication, to be filed
in the Office of the.Clerk of this City.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 7th day of August , 2006.
Mayor
REVIEWED AND APPROVED: APPROVED AS TO FORM:
/City Ad nistrator ity Attorney Mh
TIATED AND APPROVED:
dyAttorney 7 � 16
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Urgency Ord. No. 3748
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, JOAN L. FLYNN, the duly elected, qualified City Clerk of the
City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do
hereby certify that the whole number of members of the City Council of the City of
Huntington Beach is seven; that the foregoing ordinance was read to said City
Council at a regular meeting thereof held on the 7th day of August,2006 and was
passed and adopted by at least five affirmative votes of said City Council.
AYES: Bohr, Green, Coerper, Sullivan, Hardy, Hansen, Cook
NOES: None
ABSENT: None
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ABSTAIN: None
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I,JOAN L.FLYNN,CITY CLERK of the City of
Huntington Beach and ex-officio Clerk of the City
Council,do hereby certify that a synopsis of this
ordinance has been published in the Huntington Beach
Fountain Valley Independent on
August 17,2006
In accordance with the City Charter of said City Cit lerk and ex-officio CUrk
L. Flynn,City Clerk of the City Council of the City
eputy City Clerk of Huntington Beach, California
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