HomeMy WebLinkAboutOrdinance #3934 ORDINANCE NO. 3934
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING SECTION 230.96 OF THE HUNTINGTON BEACH
ZONING AND SUBDIVISION ORDINANCE
RELATING TO WIRELESS COMMUNICATION FACILITIES
The City Council of the City of Huntington Beach does hereby ordain as follows:
SECTION 1. Section 230.96 of the Huntington Beach Zoning and Subdivision
Ordinance is hereby amended to read as follows:
230.96 Wireless Communication Facilities
A. Purpose. This Section of the Zoning Code is to protect public safety, general welfare, and
quality of life by regulating the location, height and physical characteristics and provide for
orderly and efficient placement of Wireless Communications Facilities in the City of
Huntington Beach.
Because of the potential negative aesthetic impacts of Wireless Communications Facilities,
including visual blight and diminution of property value, the City endeavors to locate
antennas within commercial, industrial and other non-residential zones, screen them from
view, and encourage co-location with other Wireless Communication Facilities. However,
the Federal Telecommunications Act, specifically 47 U.S.C. Section 332(c)(7), preempts
local zoning where a Wireless Facility is necessary to remedy a significant gap in the
Wireless Provider's service. Consequently, where the City determines that the Facility does
not satisfy City planning and zoning standards,the Wireless Provider may then choose to
establish Federal preemption because (i) a significant gap in wireless coverage exists, and(ii)
there is a lack of feasible alternative site locations. A myriad of factors are involved in
determining if a gap is significant, such as: whether the gap affects a commuter highway; the
nature and character of the area and the number of potential users affected by the alleged lack
of service; whether the signal is weak or nonexistent, and whether the gap affects a
commercial district. Consequently, the City will require scientific evidence from an expert in
the field demonstrating the existence of a significant gap in service, and a lack of feasible
alternative sites. The applicant will be required to pay for the cost of said expert opinion.
B. Definitions. For the purpose of this Section, the following definitions for the following terms
shall apply:
I. Accessory Structure. Any structure or equipment that is to be located ancillary to an
antenna or antennas in the establishment and operation of a Wireless Communication
Facility.
2. Co-Location or Co-Located. The location or placement of multiple Wireless
Communication Facilities which are either owned or operated by more than one service
provider at a single location and mounted to a common supporting structure, wall or
building.
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3. Completely Stealth. Any Wireless Communication Facility that has been designed to
completely screen all aspects of the facility including appurtenances and equipment from
public view. Examples of completely stealth facilities may include, but are not limited
to, architecturally screened roof mounted antennas, facade mounted antennas treated as
architectural elements to blend in with the existing building, church steeples, fire towers,
and flag poles and light standards of a typical diameter.
4. Ground Mounted Facility. Any wireless antenna that is affixed to a pole, tower or other
freestanding structure that is specifically constructed for the purpose of supporting an
antenna.
5. Microwave Communication. The transmission or reception of radio communication at
frequencies of a microwave signal (generally, in the 3 GHz to 300 GHz frequency
spectrum).
6. Modified Facility. An existing Wireless Communication Facility where the antennas
and/or supporting structure are proposed to be altered in any way from their existing
condition, including like-for-like replacement but excluding co-location.
7. Pre-existing Wireless Facility. Any Wireless Communication Facility for which a
building permit or conditional use permit has been properly issued prior to the effective
date of this ordinance, including permitted wireless antennas that have not yet been
constructed so long as such approval is current and not expired.
8. Public Right-of-Way The area across, along, beneath, in, on, over, under, upon, and
within the dedicated public alleys, boulevards, courts, lanes, places, roads, sidewalks,
streets, ways, private streets with public access easements within the City's boundaries,
and City owned properties, as they now exist or hereafter will exist.
9. Roof Mounted. Any wireless antenna directly attached or affixed to the roof of an
existing building, water tank, tower or structure other than a telecommunications tower.
10. Stealth Techniques. Any Wireless Communication Facility, including any appurtenances
and equipment, which is designed to blend into the surrounding environment. Examples
of Stealth Technique include,but are not limited to, monopalms/monopines.
11. Utility Mounted. Any wireless antenna mounted to an existing above-ground structure
specifically designed and originally installed to support utilities such as but not limited to
electrical power lines, cable television lines, telephone lines, non-commercial wireless
service antennas, radio antennas, street lighting but not traffic signals, recreational
Facility lighting, or any other utility which meets the purpose and intent of this definition.
12. Wall Mounted. Any wireless antenna mounted on any vertical or nearly vertical surface
of a building or other existing structure that is not specifically constructed for the purpose
of supporting an antenna (including the exterior walls of a building, an existing parapet,
the side of a water tank, the face of a church steeple, or the side of a freestanding sign)
such that the highest point of the antenna structure is at an elevation equal to or lower
than the highest point of the surface on which it is mounted.
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Ordinance No. 3934
13. Wireless Communication Facility or Facility or Wireless Antenna. An antenna structure
and any appurtenant facilities or equipment that transmits electronic waves or is used for
the transmission or receipt of signals that are used in connection with the provision of
wireless communication service, including, but not limited to digital, cellular and radio
service.
C. Applicability. This ordinance shall apply to all Wireless Communication Facilities which
are erected, located, placed or modified within the City of Huntington Beach.
D. Exceptions. The following Wireless Communication Facilities shall be exempt from this
Ordinance.
I. Any Facility, which is subject to a previously approved and valid entitlement, may be
modified within the scope of the applicable permit without complying with these
regulations. However, modifications outside the scope of the valid entitlement or any
modification to an existing facility that does not have a previously approved and valid
entitlement is subject to the requirements of this ordinance.
2. Any antenna structure that is one meter(39.37 inches) or less in diameter that is
designed to receive direct broadcast satellite service, including direct-to-home satellite
service for television purposes, as defined by Section 207 of the Telecommunication Act
of 1996, Title 47 of the Code of Federal Regulations, and any interpretive decisions
thereof.
3. Any antenna structure that is two meters (78.74 inches) or less in diameter located in
commercial or industrial zones and is designed to transmit or receive radio communication
by satellite antenna.
4. Any antenna structure that is one meter (39.37 inches) or Iess in diameter or diagonal
measurement and is designed to receive Multipoint Distribution Service, provided that no
part of the antenna structure extends more than five (5) feet above the principle building
on the same lot.
5. Any antenna structure used by authorized amateur radio stations licensed by the FCC.
E. Process to Install and Operate Wireless Communication Facilities.
No Facility shall be installed anywhere in the City without first securing either a Wireless
Permit or a Conditional Use Permit as required below.
1. Wireless Permit Application. The applicant shall apply to the Planning and Building
Department for a Wireless Permit by submitting a completed Wireless Permit Application
("Application") and paying all required fees. The Application shall be in the form
approved by the Director, and at a minimum shall provide the following information:
a. Precise location of the Facility.
b. Evidence that the Facility is compatible with the surrounding environment or that the
facility is architecturally integrated into a structure.
c. Evidence that the facility is screened or camouflaged by existing or proposed
topography, vegetation, buildings or other structures as measured from beyond the
boundaries of the site at eye level (six feet).
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d. Evidence that the massing and location of the proposed facility are consistent with
surrounding structures and zoning districts.
e. Evidence that no portion of the Facility will encroach over property lines.
f. Property owner authorization or evidence of fee ownership of property where the
Facility will be installed. In the case of City-owned property or any public right-of-
way, the applicant shall provide a license, lease, franchise, or other similar agreement
from the City to place any Facility over, within, on, or beneath City property or right-
of-way.
g. Locations of all other Wireless Antennas within 1,000 feet of a proposed ground
mounted facility. Co-location of ground mounted facilities shall be required where
feasible whenever such a facility is proposed within 1,000 feet of any existing
Wireless Antenna.
h. Any other relevant information as required by the Director of Planning and Building.
The Planning and Building Department will initially review and determine if the
Application is complete. The City may deem the Application incomplete and require re-
submittal if any of the above information is not provided.
2. Director Approval. Following submittal of a complete Application, the City will
determine whether the Facility may be approved by the Director or whether a Conditional
Use Permit or other entitlement is required. Wireless Permit applications will be
processed based upon the location and type of antennas defined in herein. Although said
classifications are assigned at project intake, a re-evaluation of antenna classifications may
occur at any point in the process including at the time of review by the Director, Zoning
Administrator, Planning Commission or City Council.
A Facility not subject to any other discretionary approval may be administratively
approved by the Director by issuing a Wireless Permit if it is:
a. Co-located on an existing approved Wireless Facility, does not exceed the
existing Wireless Facility heights, and employs Stealth Techniques such that the
co-located Wireless Facility is compatible with surrounding buildings and land
uses; or
b. A modified Facility that complies with the base district height limit plus up to an
additional 10 feet of height as permitted in Section 230.72 and compatible with
surrounding buildings and land uses by incorporating stealth techniques; or
c. A Facility that complies with the base district height limit plus up to an additional
10 feet of height as permitted in Section 230.72, is Completely Stealth, and is not
ground or utility mounted.
The Director may require conditions of approval of the Facility in order to minimize
adverse health, safety and welfare impacts to the community.
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Ordinance No. 3934
A decision of the Director to grant a Wireless Permit shall become final ten (10) days
following the date of the decision unless an appeal to the Planning Commission is
filed as provided in Chapter 248 of the Huntington Beach Zoning and Subdivision
Ordinance (HBZSO).
The Director shall issue findings of approval that the Facility meets the above criteria
and is not a detriment to the health, safety and welfare of the community.
3. Zoning Administrator Approval. In the event the Director determines that the
applicant does not meet the requirements for Director approval of a Wireless Permit,
then the applicant shall apply for a Conditional Use Permit (CUP)to the Zoning
Administrator pursuant to Chapter 241 of the HBZSO. Notwithstanding any other
provisions of the HBZSO, any new ground or utility mounted wireless facilities shall
be required to obtain a CUP. CUP applications shall also include the same
information required under subsection E.1.
The Zoning Administrator may require, as a condition of approval of the CUP that the
applicant minimize significant adverse impacts to the community and public visual
resources by incorporating one or more of the following into project design and
construction:
a. Completely Stealth installations;
b. Stealth Techniques;
c. Co-location and locating Facilities within existing building envelopes;
d. Colorization or landscaping to minimize visual prominence; and/or
e. Removal or replacement of Facilities that are obsolete.
Further conditions of approval of a facility CUP may be imposed as provided in
Chapter 241 of the HBZSO. The Zoning Administrator's decision may be appealed
to the Planning Commission in accordance with Chapter 248 of the HBZSO.
4. Design Review. Design review shall be required for any Wireless Communication
Facilities pursuant to the HBZSO as well as those located on public right-of-way and
on or within 300 feet of a residential district or use in the City.
Notwithstanding any other provisions of the HBZSO, design review is not required
for Wireless Communication Facilities that may be approved by the Director pursuant
to subsection E.2 (Director Approval) above and have all appurtenant facilities and
equipment located underground or within an existing building or existing enclosure.
F. Applicant May Assert Federal Preemption At Time of Appeal To Planning Commission.
1. If the decision on the Wireless Permit or Conditional Use Permit is appealed(either by
applicant or an aggrieved party) to the Planning Commission,the Applicant may assert
that Federal Law preempts the City from denying the application because denial would
effectively prohibit Wireless Service. The applicant shall pay a Denial of Effective
Service appeal fee in an amount to be established by City Council Resolution, which
amount shall be the estimated cost for the City to retain an independent, qualified
consultant to evaluate any technical aspect of a proposed Wireless Communications
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Ordinance No. 3934
Facility, including, but not limited to, issues involving whether a significant gap in
coverage exists. A Denial of Effective Service appeal must be submitted prior to the
expiration of the appeal period for a Wireless Permit or Conditional Use Permit.
2. The Director shall establish the form of the Denial of Effective Service appeal. At a
minimum, the Applicant shall provide the following information as part of its appeal:
In order to prevail in establishing a significant gap in coverage claim the applicant shall
establish at minimum the following based upon substantial evidence:
a. Evidence demonstrating the existence and nature of a significant gap in service in
the vicinity of the proposed Facility, including but not limited to whether the gap
pertains to residential in-building, commercial in-building coverage, in-vehicle
coverage, and/or outdoor coverage.
b. Evidence demonstrating that the applicant has pursued other feasible sites for
locating the Facility, but that they are unavailable on commercially practicable
terms.
c. Evidence demonstrating the radio frequency signal strength transmission
requirements and objectives that the applicant has established for the Southern
California region, and for the City of Huntington Beach.
d. Radio frequency propagation maps demonstrating actual transmission levels in the
vicinity of the proposed Facility site, and any alternative sites considered.
e. Radio frequency drive tests demonstrating actual transmission levels in the vicinity
of the proposed Facility site, and any alternative sites considered.
f. Reports regarding the applicant's monthly volume of mobile telephone calls
completed, not completed, dropped, handed-off, not handed-off, originated and
not originated for the signal area to be covered by the proposed Facility.
g. Any proprietary information disclosed to the city or the consultant is deemed not to
be a public record, and shall remain confidential and not to be disclosed to any
third party without the express consent of the applicant, unless otherwise required
by law. In the event the applicant does not provide this information,the City may
conclusively presume that no denial of effective service exists.
All of the information noted above shall be submitted to the City within 30 days of the
filing of the Denial of Effective Service appeal unless an extension is granted by the
Director.
3. The Denial of Effective Service appeal shall be considered concurrently with the
Wireless Permit or CUP appeal hearing before the Planning Commission. Prior to the
scheduling of the public hearing on the Wireless Permit or CUP appeal, the City Attorney
shall be authorized to issue administrative subpoenas to compel production of such
documents, testimony and other evidence relevant to the applicant's denial of effective
service claims.
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Ordinance No. 3934
G. Wireless Communication Facility Standards. The following standards shall apply to all
wireless communication facilities:
1. Screening. All screening used in conjunction with a wall or roof mounted Wireless
Antenna shall be compatible with the architecture of the building or other structure to
which it is mounted, including color,texture and materials. All ground or utility mounted
facilities shall be designed to blend into the surrounding environment, or architecturally
integrated into a building or other concealing structure.
2. Equipment/Accessory Structures. All equipment associated with the operation of the
Wireless Antenna, including but not limited to transmission cables, shall be screened in a
manner that complies with the development standards of the zoning district in which such
equipment is located and Section 230.76. Screening materials and support structures
housing equipment shall be architecturally compatible with surrounding structures by
duplicating materials and design in a manner as practical as possible. Chain link
fencing and barbed wire are prohibited.
3. General Provisions. All Wireless Communication Facilities shall comply with the
Huntington Beach Urban Design Guidelines.
4. Building Codes: To ensure the structural integrity of Wireless Communication Facilities,
the owners of a Facility shall ensure that it is maintained in compliance with standards
contained in applicable state or local building codes and the applicable standards for
facilities that are published by the Electronic Industries Association, as amended from
time to time.
5. Co-Location: Co-location of ground mounted facilities shall be required where feasible
whenever such a facility is proposed within 1,000 feet of any existing Wireless Antenna.
6. Federal and State Requirements: All Wireless Communication Facilities must meet or
exceed current federal and state laws, standards and regulations of the FCC, and any
other agency of the federal or state government with the authority to regulate Wireless
Communication Facilities.
7. Interference: To eliminate interference, at all times, other than during the 24-hour cure
period,the applicant shall comply with all FCC standards and regulations regarding
interference and the assignment of the use of the radio frequency spectrum. The
applicant shall not prevent the City of Huntington Beach or the countywide system from
having adequate spectrum capacity on the City's 800 MHz voice and data radio
frequency systems. The applicant shall cease operation of any Wireless Antenna causing
interference with the City's facilities immediately upon the expiration of the 24-hour cure
period until the cause of the interference is eliminated.
8. Lighting_ All outside lighting shall be directed to prevent"spillage" onto adjacent
properties, unless required by the FAA or other applicable authority, and shall be shown
on the site plan and elevations.
9. Maintenance: All facilities and appurtenant equipment including landscaping shall be
maintained to remain consistent with the original appearance of the Wireless Antenna.
Ground mounted facilities shall be covered with anti-graffiti coating.
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Ord in, No. 3934
10. Monitoring: The applicant shall provide a copy of the lease agreement between the
property owner and the applicant prior to the issuance of a building permit.
11. Signs: The Wireless Antenna shall not bear any signs or advertising devices other than
owner identification, certification, warning, or other required seals of signage.
12. Landscaping_ Landscape planting, irrigation and hardscape improvements may be
imposed depending on the location, the projected vehicular traffic, the impact on existing
facilities and landscape areas, and the visibility of the proposed Wireless Antenna.
Submittal of complete landscape and architectural plans for review and approval by the
Directors of Public Works and Planning and Building Departments may be required.
13. Utility Agreement: If the proposed facility will require electrical power or any other
utility services to the site, the applicant will be required to furnish the City's Real Estate
Services Manager either a drafted utility franchise agreement between the City of
Huntington Beach and the applicant to place those lines in the public right-of-way, or a
written statement from the utility company that will be supplying the power or other
services, that they accept all responsibility for those lines in the public right-of-way.
H. Facilities in the Public Right-of-WaX. Any Wireless Communication Facility to be placed
over, within, on or beneath the public right-of-way shall comply with the Undergrounding
Ordinance (Chapter 17.64 of-HBMC).
I. Facility Removal. Wireless communication facilities affecting the public view and/or located
in areas designated Water Recreation, Conservation, Parks and Shoreline, and Public Right
of Ways shall be removed in its entirety within six (6) months of termination of use and the
site restored to its natural state.
J. Cessation of Operation.
1. Abandonment. Within thirty (30) calendar days of cessation of operations of any
Wireless Communication Facility approved under this Section, the operator shall notify
the Director in writing. The Wireless Antenna shall be deemed abandoned pursuant to
the following sections unless:
a. The City has determined that the operator has resumed operation of the Wireless
Communication Facility within six (6) months of the notice; or
b. The City has received written notification of a transfer of the Wireless
Communication Facility.
2. City Initiated Abandonment: A Wireless Antenna that is inoperative or unused for a
period of six (6) continuous months shall be deemed abandoned. Written notice of the
City's determination of abandonment shall be provided to the operator of the Wireless
Antenna and the owner(s) of the premises upon which the antenna is located. Such notice
may be delivered in person, or mailed to the address(es) stated on the permit application,
and shall be deemed abandoned at the time delivered or placed in the mail.
3. Removal of Abandoned Wireless Antenna: The operator of the Wireless Antenna and the
owner(s) of the property on which it is located, shall within thirty (30) calendar days after
notice of abandonment is given either (1) remove the Wireless Antenna in its entirety and
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Ordinance No. 3934
restore the premises, or(2)provide the Director with written objection to the City's
determination of abandonment.
a. Any such objection shall include evidence that the Wireless Antenna was in use
during the relevant six- (6) month period and that it is presently operational. The
Director shall review all evidence, determine whether or not the Facility was properly
deemed abandoned, and provide the operator notice of its determination.
b. At any time after thirty-one (31) calendar days following the notice of abandonment,
or immediately following a notice of determination by the Director, if applicable, the
City may remove the abandoned Wireless Antenna and/or repair any and all damage
to the premises as necessary to be in compliance with applicable codes. The City
may, but shall not be required to, store the removed Antenna(or any part thereof).
The owner of the premises upon which the abandoned Antenna was located, and all
prior operators of the Antenna, shall be jointly liable for the entire cost of such
removal, repair, restoration and/or storage, and shall remit payment to the City
promptly after demand thereof is made. The City may, in lieu of storing the removed
Wireless Antenna, convert it to the City's use, sell it, or dispose of it in any manner
deemed appropriate by the City.
SECTION 2. This ordinance shall become effective 30 days after its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting thereof held on the 5t:h day of March , 20 12 .
Mayor
ATTEST: APPROVED AS TO FORM:
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09-2009.002/73032 9
Ord. No. 3934
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 February 6,2012, and was again read to said City Council at a
regular meeting thereof held on March 5, 2012, and was passed and adopted by the
affirmative vote of at least a majority of all the members of said City Council.
AYES: Dwyer, Hansen, Carchio, Bohr
NOES: Shaw, Harper, Boardman
ABSENT: None
ABSTAIN: None
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 March 15,2012.
In accordance with the City Charter of said City
Joan L. Flynn, City Clerk CUY
Clerk and ex-officio�lerk
Senior Deputy Cites of the City Council of the City
of Huntington Beach, California