HomeMy WebLinkAboutCITY COUNCIL - 2006-62 RESOLUTION NO. 2 0 0 6-6 2
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH EXTENDING INTERIM
ORDINANCE NO. 3748 FOR SIX MONTHS
WHEREAS, on August 7, 2006, the City Council adopted a 45-day moratorium on the
installation of wireless telecommunication facilities in the public right-of-way; and
Pursuant to Government Code Section 65858 Interim Ordinance No. 3748 may be
extended for up to ten months and 15 days upon notice and public hearing; and
At least ten (10) days prior to September 18, 2006, the City Clerk has caused to be
published in a newspaper of general circulation a notice advising that on September 18, 2006 at
6:00 p.m. or as soon thereafter, the City Council will consider extending Interim Ordinance
3748; and
Since adoption of Interim Ordinance No. 3748 on August 7, 2006, the City has taken
steps to alleviate the conditions that led to the adoption of Interim Ordinance No. 3748, which
steps are included in the Report of the City Council of the City of Huntington Beach dated
September 5, 2006, which is attached herein as Exhibit A; and
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 public
right-of-way without conforming to any of the protections afforded by City regulations. This
could lead to wireless telecommunications facilities which:
1. Create land use incompatibilities;
2. Create visual and aesthetic blight or view interference due to excessive size,
height, or absence of camouflaging;
3. Create traffic and pedestrian safety hazards due to unsafe location of poles,
towers, equipment cabinets or other materials or construction, particularly in
public right-of-way locations;
4. Reduce property values;
5. Create operational conflicts with other land use or facilities authorized or existing
on the same or neighboring sites;or
6. Deteriorate the quality of life in a particular community or neighborhood.
NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby
resolve as follows:
05-220/4337 1
1. The City Council of the City of Huntington Beach finds that the potential effects
from the installation, construction, or modification of additional wireless telecommunications
facilities in the public right-of-way 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 the
Huntington Beach Municipal Code or the Zoning and Subdivision Ordinance.
2. The Report of the City Council of the City of Huntington Beach dated September
5, 2006,which is attached herein as Exhibit A is approved and adopted.
3. Interim Ordinance No. 3748 shall be extended six months from September 18,
2006, to permit City staff to undertake appropriate action and develop appropriate regulations
consistent with the requirements of State and Federal law.
PASSED AND ADOPTED by the City.Council of the City of Huntington Beach at a
regular meeting thereof held on the 18th day of September , 20 06 .
Mayor
REVIEWED AND APPROVED: TED AND APPROVED AS TO FORM:
ity AdMinistrator Pity Attorney
05-220/4337 2
EXHIB:I,T -- A
REPORT OF THE CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH
INTERIM ORDINANCE NO. 3748
INSTALLATION OF WIRELESS FACILITIES IN THE
PUBLIC RIGHT-OF-WAY
September 5, 2006
Zoning and Subdivision Ordinance ("ZSO") Sections 230.96(G)(1) and 230.96(G)(7) require that
any wireless communication facilities constructed on or beneath the public right-of-way have a
franchise agreement with the City. Since 2005, various federal and state court decisions indicate
that ZSO Section 230.96 may be subject to legal challenge.
On August 7, 2006, City Council adopted Interim Ordinance No. 3748, a 45-day moratorium on
the installation of wireless telecommunication facilities in the public right-of-way. Interim
Ordinance No. 3748 expires on September 21, 2006. The City Council is required by
Government Code Section 65852(d) to provide this report ten days prior to expiration of Interim
Ordinance No. 3748. This report describes the measures taken to alleviate the inconsistency
between the ZSO and recent state and federal court decisions relating to the installation of
wireless facilities in the public right-of-way.
ZSO Section 230.96(G) specifically addresses all wireless communication facilities placed over,
on or beneath the public right-of-way. Among other things, this subsection requires that all
wireless communication facilities constructed on or beneath the -public right-of-way have a
franchise agreement with the City. (ZSO §230.96(G)(1) and (7).) Recently, the California
Court of Appeal held local governments may place time, place and manner restrictions on the
placement of facilities in the public right-of-way. (See, Sprint Telephone EPCS v. County of San
Diego (June 20, 2006) 140 Cal. App. 4th 748.)
Following adoption of Interim Ordinance No. 3478 on August 7, 2006, representatives of the
City's Planning and Public Works Department have conferred with the City Attorney's Office to
discuss the City's current regulations relating to installing wireless facilities in the public-right-
of-way. Following this discussion, the City Attorney has prepared an amendment to ZSO
Section 230.96(G) that is consistent with the recent court decisions. This proposed amendment
is attached hereto as Attachment 1, and would require any wireless communication facilities to
be constructed on or beneath the public right-of-way to obtain an encroachment permit from the
City. It is anticipated that the proposed amendment to ZSO Section 230.96 will be presented to
the City's Planning Commission for its recommendation within the next 60 to 90 days.
Also, in conferring with the Planning and Public Works Departments, the City Attorney's office
determined that the City's encroachment permit process does not distinguish between permanent
and temporary encroachments in the public right-of-way. In addition, there appear to be several
inconsistencies issues between the proposed zoning text amendments to ZSO Section 230.96(G)
and multiple provisions of the Huntington Beach Municipal Code that relate to encroachments in
the public right-of-way. (See, Huntington Beach Municipal Code Chapter 12.13 ("Street Work
Generally"); Huntington Beach Municipal Code Chapter 12. 20 ("Utility Structures"); and
05-220/4334
1
Huntington Beach Municipal Code Chapter 12.38 ("Encroachments"); and, Huntington Beach
Municipal Code Chapter 12.48 ("Wireless Digital Communication Radio Network").) The
provisions of the Huntington Beach Municipal Code that appear to regulate to the installation of
wireless facilities in the public right-of-way will require amendment in order for the City to
provide a consistent mechanism by which public utilities can obtain encroachment permits and
allow the City to lawfully regulate the installation of facilities within the public right-of-way.
The City Attorney will request an extension of the Interim Ordinance in order to allow the City
the time to process the zoning text amendments for ZSO Section 230.96, and also allow the City
Attorney to confer with the Public Works Department to review and revise the City's current
encroachment permit process.
05-220/4334
2
ATTACHMENT NO . 1
ORDINANCE NO. 224S
LEGISLATIVE DRAFT
Section 230.90(G).
4. No portion of a wireless communication facility shall project over property lines. (3568-9/02)
5. Significant adverse impacts to public visual resources shall be minimized by incorporating one or
more of the following into project design and construction: (Res No.2004-80-9/04)
a. Co-locating antennas on one structure; (Res No.2004-80-9/04)
b. Stealth installations; (Res No.2004-80-9/04)
c. Locating facilities within existing building envelopes; (Res No.2004-80-9/04)
d. Minimizing visual prominence through colorization or landscaping; (Res No.2004-80-9/04)
e. Removal of facilities that become obsolete. (Res. No.2004-80-9/04)
6. Wireless communication facilities affecting the public viewshed and/or located in areas
designated water Recreation, Conservation, Parks and Shoreline shall be removed within six (6)
months of termination of use and the site restored to its natural state. (Res No.2004-80-9/04)
G. Facilities in the Public Right-of-Way. Any wireless communication facility to be placed over, on
or beneath the public right-of-way shall comply with the following standards: (3568-9/02)
1. Any wireless communication facilities to be constructed on or beneath the public right-of-way
must hwye a f enehise agreement• i obtain an encroachment permit from the City
City, or the applicant must
provide documentation demonstrating that the applicant is a state-franchised telephone
corporation exempt from local franchise requirements. (3568-9/02).
2. All equipment associated with the operation of a facility, including but not limited to transmission
cables, shall be placed underground in those portions of the street, sidewalks and public rights-of-
way where cable television,telephone or electric lines are underground. At no time shall
equipment be placed underground without appropriate conduit. (3568-9/02)
3. The City Engineer shall approve the location and method of construction of all facilities located
within public rights-of-way. (3568-9/02)
4. All wireless communication facilities shall be subject to applicable City permit and inspection
fees, including, but not limited to, those pertaining to encroachment permits and all applicable
fees. (3568-9/02)
5. Any wireless communication facility installed, used or maintained within the public rights-of-way
shall be removed or relocated when made necessary by any "project." For purposes of this section,
project shall mean any lawful change of grade, alignment or width of any public right-of-way,
including but not limited to,the construction of any subway or viaduct that the City may initiate
either through itself, or any redevelopment agency, community facility district, assessment district,
area of benefit, reimbursement agreement or generally applicable impact fee program. (3568-9/02)
6. Wireless communication facilities may be installed on existing utility poles, conduits and other
facilities of a public utility, with the approval of the City Engineer, provided a franchise
agreement exists allewing wireless between the City and the public utility permits
installation of wireless communication facilities. (3568-9/02)
,
.
( -9/ez)
05-220/4344
Res. No. 2006-62
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 resolution was passed
and adopted by the affirmative vote of at least a majority of all the members of
said City Council at an regular meeting thereof held on the 18th day of
September, 2006 by the following vote:
AYES: Bohr, Green, Coerper, Sullivan, Hardy, Hansen, Cook
NOES: None
ABSENT: None
ABSTAIN: None
Ci Clerk and ex-officio Ulerk of the
City Council of the City of
Huntington Beach, California