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HomeMy WebLinkAboutCity Council - 2007-25 RESOLUTION NO. 2007-25 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH EXTENDING INTERIM ORDINANCE NO. 3766 FOR SIX MONTHS WHEREAS, on March 5, 2007, the City Council adopted a 45-day moratorium on the installation of wireless telecommunication facilities in locations other than the public right-of- way; and Pursuant to Government Code Section 65858 Interim Ordinance No. 3766 may be extended for up to ten months and 15 days upon notice and public hearing; and At least ten(10) days prior to April 16, 2007, the City Clerk has caused to be published in a newspaper of general circulation a notice advising that on April 16, 2007 at 6:00 p.m. or as soon thereafter,the City Council will consider extending Interim Ordinance 3766; and Since adoption of Interim Ordinance No. 3766 on March 5, 2007, the City has taken steps to alleviate the conditions that led to the adoption of Interim Ordinance No. 3766, which steps are included in the Report of the City Council of the City of Huntington Beach dated April 2, 2007, which is attached hereto 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 without complying with the proposed regulations that are consistent with the requirements of State and Federal law. 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: 06-595/9180 1 Res. No. 2007-25 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 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 April 2, 2007, which is attached herein as Exhibit A is approved and adopted. 3. Interim Ordinance No. 3766 shall be extended to up and including October 16, 2007, to permit City staff to present appropriate regulations consistent with the requirements of State and Federal law to the appropriate legislative bodies. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 16th day of April , 20n7 t1aAAAN-40- Ma REVIEWED AND APPROVED: INITIATED AND APPROVED AS TO FORM: :City Admi 'strator 4it4y Attorn 2' 06-595/9180 2 Res. No. 2007-25 Res. No. 2007-25 Exhibit "A" REPORT OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH INTERIM ORDINANCE NO. 3766 INSTALLATION OF WIRELESS FACILITIES IN THE April 2, 2007 Zoning and Subdivision Ordinance ("ZSO") Sections 230.96 regulates the installation of wireless facilities throughout 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, the City Council adopted Interim Ordinance No. 3748 imposing a moratorium on the installation of wireless telecommunication facilities in the public right-of- way. This moratorium was extended for one year on March 5, 2007 with the adoption of Interim Ordinance No. 3766. Section 2 of Interim Ordinance No. 3766 also imposed a 45-day moratorium on the installation of wireless telecommunication facilities in all locations within the City other than the public right-of-way. Interim Ordinance No. 3766 included a permitting process providing consistent regulations regardless of where the facilities are located. The City Council is required by Government Code Section 65852(d) to provide this report ten days prior to expiration of Section 2 of Interim Ordinance No. 3766. 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. Recently, the California Court of Appeal held that local governments may impose 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. 4t' 748.) Following adoption of Interim Ordinance No. 3748 on August 7, 2006, and Interim Ordinance No. 3677 on March 5, 2007, representatives of the City's Planning and Public Works Department have continued to confer with the City Attorney's Office to discuss the City's regulations relating to installing wireless facilities. Following these discussions, the City Attorney has prepared an amendment to ZSO Section 230.96 that is consistent with the recent court decisions and provides cohesive regulations for all wireless facilities regardless of their location within the City. This proposed amendment is attached hereto as Attachment 1, and will be presented to the City's Planning Commission for its recommendation within the next 60 to 90 days. The City Attorney will request an extension of Section 2 of Interim Ordinance 3766 in order to allow the City the time to process the zoning text amendments for ZSO Section 230.96. 06-595/9183 Res. No. 2007-25 Exhibit "A" ATTACHMENT -NO . 1 Resolution No.2007-25 Exhibit"A" ORDINANCE NO. AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTER 230.96 OF THE HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE TITLED WIRELESS COMMUNICATIONS FACILITIES The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Section 230.96 Wireless Communications Facilities of the Huntington Beach Zoning and Subdivision Ordinance is hereby amended to read as follows: 230.96 Wireless Communication Facilities A. Purpose. The purpose of this Section is to encourage and facilitate wireless communications throughout the City,while preventing visual clutter by locating wireless communication facilities outside of residential zones and where they are invisible to pedestrians, and co- located with other facilities. All wireless communication facilities shall comply with these regulations with regard to their location,placement, construction,modification and design to protect the public safety, general welfare, and quality of life in the City of Huntington Beach. B. Definitions. For the purpose of this section, the following definitions for the following terms shall apply: (3568-9/02) 1. 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. (3568-9/02) 2. Co-Location or Co-Located. The location of multiple antennas 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. (3568-9/02) 3. Completely Stealth Facility. Any stealth 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, fagade mounted antennas treated as architectural elements to blend with the existing building, flagpoles, church steeples, fire towers, and light standards. (3568-9/02) 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. (3568-9/02) 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). (3568-9/02) 6. Pre-existing Wireless Faciliit. 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 facilities that have not yet been constructed so long as such approval is current and not expired. (3568-9/02) 1 06-595/9103 Resolution No.2007-25 Exhibit"A" 7. 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. (3568-9/02) 8. Stealth Facility or Techniques. Any wireless communication facility, which is designed to blend into the surrounding environment,typically, one that is architecturally integrated into a building or other concealing structure. See also definition of completely stealth facility. (3568-9/02) 9. 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. (3568- 9/02) 10. 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. (3568-9/02) 11. Wireless Communication Facility or Facility. 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. (3568-9/02) C. Applicability. (3568-9/02) 1. All wireless communication facilities which are erected, located, or modified within the City of Huntington Beach shall comply with these regulations provided that: (3568-9/02) 1. All facilities, for which permits were issued prior to the effective date of this section, shall be exempt from these regulations and guidelines. (3568-9/02) 2. Any facility, which is subject to a previously approved and valid conditional use permit, may be modified within the scope of the applicable permit without complying with these regulations and guidelines. (3568-9/02) 3. Any antenna structure that is one meter(39.37 inches) or less in diameter and 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 issued by the Federal Communications Commission (FCC). (3568-9/02) 4. 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. (3568-9/02) 5. Any antenna structure that is one meter(39.37 inches)or less 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. (3568-9/02) 2 06-595/9103 Resolution No.2007-25 Exhibit"A" 6. Any antenna structure that is designed to receive radio broadcast transmission. (3568-9/02) 7. Any antenna structure used by authorized amateur radio stations licensed by the FCC. (3568-9/02) D. Wireless Permit Re uq ired. No wireless communication facility shall be installed anywhere in the City without submission of a Wireless Permit Application that demonstrates that the antenna is located in the least obtrusive location feasible so as to eliminate any gap in service and also includes the following information: 1. Existing gaps in coverage, and the radius of area from which an antenna may be located to eliminate the gap in coverage. 2. Compatibility with the surrounding environment or that the facilities are architecturally integrated into a structure. 3. Screening or camouflaging by existing or proposed topography, vegetation, buildings or other structures as measured from beyond the boundaries of the site at eye level (six feet). 4. Massing and location of the proposed facility are consistent with surrounding structures and zoning districts. 5. No portion of a wireless communication facility shall project over property lines. 6. Interference: To eliminate interference the following provisions shall be required for all wireless communication facilities regardless of size: a. Prior to issuance of a building permit, the applicant must submit the following information to the Police Department for review: i. All transmit and receive frequencies; ii. Effective Radiated Power(ERP); iii. Antenna height above ground, and iv. Antenna pattern, both horizontal and vertical (E Plane and H Plane). b. 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 facility 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. c. Before activating its facility,the applicant shall submit to the Police and Fire Departments a post-installation test to confirm that the facility does not interfere with the City of Huntington Beach Public Safety radio equipment. The Communications Division of the Orange County Sheriff s Department or Division-approved contractor at the expense of the applicant shall conduct this test. This post-installation testing process shall be repeated for every proposed frequency addition and/or change to confirm the intent of the "frequency planning"process has been met. d. The applicant shall provide to the Planning Department a single point of contact (including name and telephone number) in its Engineering and Maintenance Departments to whom all interference problems may be reported to insure continuity 3 06-595/9103 Resolution No.2007-25 Exhibit"A" on all interference issues. The contact person shall resolve all interference complaints within 24 hours of being notified. e. The applicant shall insure that lessee or other user(s) shall comply with the terms and conditions of this permit, and shall be responsible for the failure of any lessee or other users under the control of the applicant to comply. E. Permit Required. 1. Administrative approval by the Director may be granted for proposed wireless communication facilities (including but not limited to ground mounted,co-located, wall, roof, or utility mounted)that are: a. Co-located with approved facilities at existing heights or that comply with the base district height limit for modified facilities, and compatible with surrounding buildings and land uses by incorporating stealth techniques; or b. Completely stealth facilities that comply with the base district height limit; or c. Facilities in non-residential districts that are in compliance with the maximum building height permitted within the zoning district; and i. Screened from view and not visible from beyond the boundaries of the site at eye level(six feet); or ii. Substantially integrated with the architecture of the existing building or structure to which it is to be mounted; or iii. Designed to be architecturally compatible with surrounding buildings and land uses by incorporating stealth techniques. 2. Following submission of a Wireless Permit Application,a Conditional Use Permit approval by the Zoning Administrator shall be required for all proposed wireless communication facilities (including but not limited to ground mounted, co-located, wall, roof or utility mounted)that are: a. Exceeding the maximum building height permitted within the zoning district; or b. Visible from beyond the boundaries of the site at eye level (six feet); or c. Not substantially integrated with the architecture of the existing building or structure to which it is to be mounted; or d. Not designed to be architecturally compatible with surrounding buildings and land uses; or 3. As a condition of the Conditional Use Permit, the Zoning Administrator shall minimize significant adverse impacts to public visual resources by incorporating one or more of the following into project design and construction: a. Stealth installations; b. Co-location and locating facilities within existing building envelopes; c. Minimizing visual prominence through colorization or landscaping; d. Removal or replacement of facilities that become obsolete. 4 06-595/9103 Resolution No.2007-25 Exhibit"A" 4. Design review shall be required for any wireless communication facilities located in redevelopment areas, on public right-of-ways, in OS-PR and PS zones, in areas subject to specific plans, on or within 300 feet of a residential district, and in areas designated by the City Council. Design review is not required for wireless communication facilities that comply with subsection 1. F. Facility Standards: The following standards apply to all wireless communication facilities: 1. Aesthetics: a. Facility: All screening used in conjunction with a wall or roof mounted facility shall be compatible with the architecture of the building or other structure to which it is mounted, including color, texture and materials. All ground mounted facilities shall be designed to blend into the surrounding environment, or architecturally integrated into a building or other concealing structure. (3568-9/02) b. Equipment/Accessory Structures: All equipment associated with the operation of the facility, 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. 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. If chain link is used,then it must be vinyl coated and not include barbed wire. (3568-9/02) c. General Provisions: All Wireless Communication Facilities shall comply with the Huntington Beach Urban Design Guidelines. (3568-9/02) 2. 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. (3568-9/02) 3. Conditions of Approval: Acceptance of conditions by the applicant and property owner shall be ensured by recordation of the conditions on the property title. (3568-9/02) 4. Federal Requirements: All Wireless Communication Facilities must meet or exceed current standards and regulations of the FCC, and any other agency of the state or federal government with the authority to regulate wireless communication facilities. (3568-9/02) 5. 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. (3568-9/02) 6. Maintenance: All facilities and appurtenant equipment including landscaping shall be maintained to remain consistent with the original appearance of the facility. Ground mounted facilities shall be covered with anti-graffiti coating. (3568-9/02) 7. Monitoring: For all wireless communication facilities, 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. (3568-9/02) 8. Si ns: The facility shall not bear any signs or advertising devices other than certification, warning, or other required seals of signage. (3568-9/02) 5 06-595/9103 Resolution No.2007-25 Exhibit"A" 9. Facilities on Public Property: Any wireless communication facility to be placed over, within, or beneath City property shall obtain a lease or franchise from the City prior to applying for a Wireless Permit and an administrative or conditional use permit. 10. 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 facility. Submittal of complete landscape and architectural plans for review and approval by the Directors of Public Works and Planning may be required. 11. 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. 12. Facilities in the Public Right-of-Way. Any wireless communication facility to be placed over,within, on or beneath the public right-of-way shall comply with the following standards: (3568-9/02) a. Any wireless communication facilities to be constructed on or beneath the public right- of-way must obtain an encroachment permit from the City and the applicant must provide documentation demonstrating that the applicant is a state-franchised telephone corporation exempt from local franchise requirements. (3568-9/02) b. All equipment associated with the operation of a facility, including but not limited to cabinets,transmission cables but excepting antennas,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) c. The City Engineer shall approve the location and method of construction of all facilities located within public rights-of-way and the installation of facilities within the public rights-of-way must comply with Title 12 of the Huntington Beach Municipal Code, as the same may be amended from time to time. (3568-9/02) d. All wireless communication facilities shall be subject to applicable City permit and inspection fees, including, but not limited to,those pertaining to encroachment permits, administrative or conditional use permits, and all applicable fees. (3568-9/02) e. 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) f. If the facility is attached to a utility pole, the facility shall be removed, at no cost to the City, if the utility pole is removed pursuant to an undergrounding project. g. The service provider shall enter into a franchise agreement with the City. As of March 17, 2007, the California Supreme Court, in the case entitled Spring Telephony PCS v. County of San Diego, will determine whether California Public Utilities Code § 7901 grants a state-wide franchise to use the public rights-of-way for the purpose of installation of wireless communications facilities. Pending resolution of this legal 6 06-595/9103 Resolution No.2007-25 Exhibit"A" question, any applicant seeking to use the public right-of-way must enter into a City franchise to install wireless communications facilities. The franchise shall provide that the franchise fee payments shall be refunded to the applicant and the franchise become null and void if and when the California Supreme Court establishes that the provider has a state-wide franchise to install a wireless communications facility in the public right-of- way. 13. Facility Removal. a. Wireless communication facilities affecting the public view 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. b. Cessation of Operation: Within thirty(30) calendar days of cessation of operations of any wireless communication facility approved under this section,the operator shall notify the Planning Department in writing. The facility shall be deemed abandoned pursuant to the following sections unless: (3568-9/02) 1. The City has determined that the operator has resumed operation of the wireless communication facility within six(6)months of the notice; or (3568-9/02) 2. The City has received written notification of a transfer of wireless communication operators. (3568-9/02) c. Abandonment: A facility 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 facility and the owner(s) of the premises upon which the facility is located. Such notice may be delivered in person,or mailed to the address(es) stated on the facility permit application, and shall be deemed abandoned at the time delivered or placed in the mail. (3568-9/02) d. Removal of Abandoned Facility: The operator of the facility 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 facility and restore the premises, or(2) provide the Planning Department with written objection to the City's determination of abandonment. Any such objection shall include evidence that the facility 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. (3568-9/02) e. Removal by City: 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 facility 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 facility(or any part thereof). The owner of the premises upon which the abandoned facility was located, and all prior operators of the facility, 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 facility, convert it to the City's use, sell it, or dispose of it in any manner deemed appropriate by the City. (3568-9/02) 7 06-595/9103 Resolution No.2007-25 Exhibit"A" SECTION 3. 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 day of , 2007. Mayor ATTEST: APPROVED AS TO FORM: City Clerk City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: City Administrator Director of Planning 8 06-595/9103 Res. No. 2007-25 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 a regular meeting thereof held on the 16th day of April, 2007 by the following vote: AYES: Bohr, Carchio, Coerper, Green, Hansen, Hardy NOES: None ABSENT: Cook ABSTAIN: None 1 Clerk and ex-offici Clerk of the City Council of the City of Huntington Beach, California