HomeMy WebLinkAboutMORATORIUM ON THE INSTALLATION OF WIRELESS TELECOMMUNICATION �� eJl;
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2006 AUG -- I Pili 2•
Council/Agency Meeting Held: lib -r y C
CITY �I
Deferred/Continued to: vi1iINT1,NG�O '''' I3 :aC1
*Appr ved ❑ Conditionally Approved ❑ Denied Cl k's Sirfatdre
Council Meeting Date: 8/7/2006 Departm nt ID Number: CA06-27
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYO ND CITY COUNCIL
SUBMITTED BY: JENNIFER MCGRA i Attorney
PREPARED BY: JENNIFER MCG i y Attorney
SUBJECT: Moratorium on tfie installation of wireless telecommunication facilities in
the public right-of-way.
F
atement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s)-
Statement of Issue: Should the City adopt a forty-five (45) day moratorium on the
installation of wireless telecommunication in the Public Right-of-Way?
Funding Source: None
Recommended Action: Motion to: Approve and adopt Ordinance No.3-7148 with specific
findings regarding the detriment to the public's health, welfare and safety, and to direct staff
to prepare revised regulations that comply with state and federal law and are consistent with
recent court decisions.
Alternative Action(s): Do not approve and adopt Ordinance No. T�'g
Analysis: A temporary moratorium would prohibit the installation of any facilities used or
associated with the transmission or reception of wireless communication services (including
personal communication, cellular and paging) within, on, below, or. above a City owned,
operated or controlled street or alley, public rights-of-way in the sidewalks, and/or parkway
adjacent thereto (hereafter "Public Right-of-Way"). This issue was initially raised in 2005
when Verizon Wireless requested permission to place wireless antennae in the Public Right-
of-Way but claimed it was not required to pay any fee or charge for use of the Public Right-
of-Way, and subsequently, refused to sign an agreement offered to other wireless carriers for
use of the Public Right-of-Way.
05-220/3577 — / /—f—
REQUEST FOR CITY COUNCIL ACTION
MEETING DATE: 8/7/2006 DEPARTMENT ID NUMBER: CA06-27
Since that time, various federal and state court decisions indicate that Zoning and
Subdivision Ordinance Code Section 230.96 may. be subject to legal challenge. Although the
League of California Cities is currently pursuing legislation to clarify the ability of cities to
regulate facilities that are located within the Public Right-of-Way, if a temporary moratorium is
not established, wireless facilities could be installed, constructed, or modified within the
Public Right-of-Way without conforming to any of the protections currently afforded by City
regulations, This could lead to wireless telecommunication facilities which create traffic and
pedestrian safety hazards; create operational conflicts with other land use or facilities
authorized or existing on the same or neighboring site; deteriorate the quality of life in a
particular community or neighborhood; create land use incompatibilities; or create visual and
aesthetic blight or view interference due to excessive size, height, or absence of camouflage.
Government Code Section 65858 authorizes the adoption, as an urgency measure, of an
interim ordinance for the immediate protection of the public safety, health or welfare,
prohibiting any use which may be in conflict with a zoning proposal that will be considered by
the Planning Commission and City Council within a reasonable time following' staff's
preparation of amendments to Section 230.96 as well as to related provisions of the
Huntington Beach Municipal Code consistent with recent court decisions.
The interim measure goes into effect immediately upon adoption by a four-fifths vote of the
City Council. 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.
Environmental Status: There is no possibility that the adoption of this ordinance.may have
a significant adverse effect on the environment because this ordinance will reduce the
possibility of such effects by limiting the range and intensity of new.uses possible in the areas
that it covers (CEQA Guidelines §15061(b)(3)).
Attachment(s):
City Clerk's
Page Number No. Description
1.. Ordinance No.31�-8 An Interim Ordinance of the City of Huntington
Beach Establishing a Temporary Moratorium on the Installation of
Wireless Communication Facilities in the Public Right-of-Way and
?ram Declaring the Urgency Thereof to Take Effect Immediately.
-2- 7/31/2006 4:49 PM
ATTACHMENT NO . 1
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.
J. 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 (91h 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 Fl intridge, 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
05-220/3648 1
Ordinance No. 3748
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. 41h 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.
05-220/3648 2
ordinance No. 3748
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.
05-220/3648 3
Ordinance No. 3748
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
05-220/3648 4
Ordinance No. 3748
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 7 th day of August , 2006.
Mayor
REVIEWED AND APPROVED: APPROVED AS TO FORM:
City Ad nistrator ity Attorney 01-
�o
IATED AND APPROVED:
VM
dy Attorney
05-220/3648 5
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 Aulzust, 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
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
August 17,2006
In accordance with the City Charter of said City Cit Jerk and ex-officio CUrk
Joan L. Flynn,City Clerk of the City Council of the City
Deputy City Clerk of Huntington Beach, California
RCA ROUTING SHEET I
INITIATING DEPARTMENT: City Attorney
SUBJECT: Moratorium on the installation of wireless.
telecommunication facilities in the public right-of-wa .
COUNCIL MEETING DATE: August 7, 2006
` Y R���AATTACHMENTS� 3' � STATzUS „
Ordinance (w/exhibits & legislative draft if applicable) Attached
Not Applicable ❑
Resolution (w/exhibits & legislative draft if applicable) Attached ❑
Not Applicable ❑
Tract Map, Location Map and/or other Exhibits Attached ❑
Not Applicable ❑
Contract/Agreement (w/exhibits if applicable) Attached ❑
(Signed in full by the City Attorney Not Applicable ❑
Subleases, Third Party Agreements, etc. Attached ' ❑
(Approved as to form by City Attorney) Not Applicable El
Certificates of Insurance (Approved by the City Attorney) Attached ❑
Not Applicable ❑
Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑
Not Applicable ❑
Bonds (If applicable) Attached ❑
Not Applicable ❑
Staff Report (If applicable) Attached ❑
Not Applicable ❑
Commission, Board or.Committee Report (If applicable) Attached El
Not Applicable ❑
Findings/Conditions for Approval and/or Denial Attached ❑.
Not Applicable ❑
EXPLANATION FOR;MISSING''ATTACHMENTS< _ h_
�gREVIEWED�, f: RETURNED a FORWARDED
r, _ v4
Administrative Staff ( ) ( )
Assistant City Administrator Initial
City Administrator Initial
City Clerk ( )
'EXPLANATIONFOR RETXURN OFITEM� T �
(Below • . For Only)
RCA Author: LM 05-220/3577
c
H. B. INDEPENDENT
PUBLISH DATE: 8/17/06
CITY OF HUNTINGTON BEACH
LEGAL NOTICE
ORDINANCE NO. 3748
Adopted by the City Council on AUGUST 7, 2006
"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"
SYNOPSIS:
A TEMPORARY MORATORIUM PROHIBITS THE INSTALLATION OF ANY FACILITIES USED OR ASSOCIATED
WITH THE TRANSMISSION OR RECEPTION OF WIRELESS COMMUNICATION SERVICES (INCLUDING
PERSONAL COMMUNICATION, CELLULAR AND PAGING)WITHININ, ON, BELOW, OR ABOVE A CITY
OWNED, OPERATED OR CONTROLLED STREET OR ALLEY, PUBLIC RIGHTS-OF-WAY IN THE SIDEWALKS,
AND/OR PARKWAY ADJACENT THERETO (HEREAFTER "PUBLIC RIGHT-OF-WAY"). THIS ISSUE WAS
INITIALLY RAISED IN 2005 WHEN VERIZON WIRELESS REQUESTED PERMISSION TO PLACE WIRELESS
ANTENNAE IN THE PUBLIC RIGHT-OF-WAY BUT CLAIMED IT WAS NOT REQUIRED TO PAY ANY FEE OR
CHARGE FOR USE OF THE PUBLIC RIGHT-OF-WAY, AND SUBSEQUENTLY REFUSED TO SIGN AN
AGREEMENT OFFERED TO OTHER WIRELESS CARRIERS FOR USE OF THE PUBLIC RIGHT-OF-WAY.
IF A TEMPORARY MORATORIIUM WAS NOT ESTABLISHED, WIRELESS FACILITIES COULD BE INSTALLED,
CONSTRUCTED, OR MODIFIED WITHIN THE PUBLIC RIGHT-OF-WAY WITHOUT CONFORMING TO ANY OF
THE PROTECTIONS CURRENTLY AFFORDED BY CITY REGULATIONS. THIS COULD LEAD TO WIRELESS
TELECOMMUNICATION FACILITIES WHICH CREATE TRAFFIC AND PEDESTRIAN SAFETY HAZARDS;
CREATE OPERATIONAL CONFLICTS WITH OTHER LAND USE OR FACILITIES AUTHORIZED OR EXISTING
ON THE SAME OR NEIGHBORING SITE; DETERIORATE THE QUALITY OF LIFE IN A PARTICULAR
COMMUNITY OR NEIGHBORHOOD; CREATE LAND USE INCOMPATIBILITIES; OR CREATE VISUAL AND
AESTHETIC BLIGHT OR VIEW INTERFERENCE DUE TO EXCESSIVE SIZE, HEIGHT, OR ABSENCE OF
CAMOUFLAGE.
COPIES OF THIS ORDINANCE ARE AVAILABLE IN THE CITY CLERK'S OFFICE.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting held
on August 7, 2006 by the following roll call vote:
AYES: Bohr, Green, Coerper, Sullivan, Hardy, Hansen, Cook
NOES: None
ABSENT: None
This ordinance is effective immediately.
CITY OF HUNTINGTON BEACH
2000 MAIN STREET
HUNTINGTON BEACH, CA 92648
714-536-5227
JOAN L. FLYNN, CITY CLERK
Esparza, Patty
From: Esparza, Patty
Sent: Tuesday, August 15, 2006 9:23 AM
To: 'susan.channels@latimes.com'
Subject: Late item for 8/17
Importance: High
Contacts: Independent/Times-Susan
SYN 3748.doc
Hi Susan - Is there anyway this can be published Thursday in legals? Please advise. Thanks
Sincerely,
Patty Esparza
Acting Senior Deputy City Clerk
(714) 536-5260
Apply for your passports in the Huntington Beach City Clerk's Office!
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CITY Of HUNTINGTON
? BEACH LEGAL NOTICE i
ORDINANCE NO.3148 ,
I Adopted,by the City Co+md)
j on AUGUST 7,2006
'AN INTERIM ORDINANCE OFi
THE CITY COUNCIL OF THE`
I CITY OF HUNTINGTON BEACH
I ESTABLISHING A TEMPORARY
I MORATORIUM ON THE IN-
I STALLATION OF MRELESS
TELECOMMUNICATION FACIL'-
{ ITIES 1N THE PUBLIC RIGHT-
OF-WAY"
SYNOPSIS:
j A TEMPORARY MORA-
TORIUM PROHIBITS THE
INSTALLATION OF ANY
FACILITIES USED' OR
ASSOCIATED WITH THE
TRANSMISSION OR RE-
CEPTION OF WIRELESS
COMMUNICATION SER-
VICES (INCLUDING
PERSONAL COMMUNI-
CATION, CELLULAR AND
PAGING) WITHININ, ON,
BELOW, OR ABOVE A
j CITY OWNED,OPERATED
I OR CONTROLLED
j STRFET OR ALLEY,
PUBLIC RIGHTS-OF-WAY
f IN THE SIDEWALKS,AND/
OR PARKWAY ADJACENT
THERETO (HEREAFTER
P U B L I C R'l G
HT-OF-WAY"). THIS
ISSUE WAS INITIALLY
RAISED IN 2005 WHEN
VERIZON WIRELESS
i REQUESTED PERMISSION
1 TO PLACE WIRELESS
j ANTENNAE IN THE
j PUBLIC RIGHT-01`4AY
BUF CLAIMED IT WAS
NOT REQUIRED TO PAY
I ANY FEE OR CHARGE
FOR USE OF THE PUBLIC
RIGHT-OF-WAY, ;AND
SUBSEQUENTLY RE-
FUSED TO SIGN AN
AGREEMENT OFFERED
.TO OTHER; WIRELESS
CARRIERS FOR USE OF
;THE PUBLIC RIGHT-OF
j 'WAY. ' •
; IF A TEMPORARY
MORATORIIUM WAS NOT -
ESTABLISHED, ;WIRE-
. I ,
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BE
CON-
STRUCTED,INSTALLED,
MODIFIED
WITHIN THE PUBLIC
RIGHT-OF-WAY WITHOUT
CONFORMING TO ANY OF
THE PROTECTIONS CUR-
RENTLY AFFORDED BY
f CITY REGULATIONS.THIS
COULD LEAD TO WIRE-
LESS TELECOMMUNICA-
TION FACILITIES WHICH
CREATE TRAFFIC AND I
PEDESTRIAN SAFETY
HAZARDS; CREATE OP-
ERATIONAL CONFLICTS.'
{ WITH OTHER LAND USE
j OR FACILITIES AUTHO-
I R12ED OR EXISTING ON. f
THE SAME OR NEIGH- .
j BORING SITE; DETERIO-
RATE THE QUALITY OF z
LIFE IN"A PARTICULAR
COMMUNITY OR NEIGH-
BORHOOD;CREATE LAND
USE INCOMPATIBILITIES;
OR CREATE VISUAL AND '
AESTHETIC BLIGHT OR
VIEW INTERFERENCE DUE
TO EXCESSIVE SIZE,
HEIGHT,OR ABSENCE OF
CAMOUFLAGE.
I COPIES'OF THIS ORDI-
NANCE ARE AVAILABLE
I IN THE CITY CLERK'S
OFFICE:.
{ PASSED AND ADOPTED.
by the City Council of the'
I City of Huntington Beach
at a regular meeting held
1 on August 7,2006 by the
following rail call vote:
AYES: Bohr, Green,
Coerper,Sullivan',Hardy„
Hansen,Cook
i NOES:None
ABSENT:None
This ordinance is
effective immediately.
CITY OF HUNTINGTON
BEACH
2000 MAIN STREET
HUNTINGTON BEACH,,
4 CA 92648
t 714-536-5227
JOAN L.FLYNN,CITY
CLERK
Published Huntington
Beacti lndependerit
August 17,2006 063-576
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PROOF OF PUBLICATION
STATE 'OF CALIFORNIA) I`
) ss. '
COUNTY OF ORANGE )
IF"A TEMPORARY
I am a Citizen of'the United States and-a 'CITY OFHUNTINGTON IMORATORIIUM WAS NOT
BEACHLEGAINOTICE. ESTABLJSHeD WIRE,
LESS,of the Countyaforesaid: I am LESS.FACILITIES COULD
•ORDINANCE N0:3748 I BE ,INSTALLED, _CON-
~Ado ted'b"theCi-Council- STRUCTED —OR^,MODI= =- --- = -'
°LL-over the ageof-elghtEeh years; and-not-a �-- P Y tY FIED WITHIN THE PUB"=
a to or interested in the below entitled onARIM;OR ORDINANCE
WIT' RIGHT-OF-WAY
party : "AN,INTERIM;ORDINANCE OF I WITHOUT
ANY of CONFORMING,H PE -
matter. I am a principal clerk of the. THE OF,THE TIONS 'CURRENTLY AF-
P P FORDED BY CITY REG-
HUNTINGTON BEACH INDEPENDENT cITY of HUNTINGTON BEACH ULATIONS.'THIS COULD
t ESTABLISHING;A'TEMPORARY. LEAD TO WIRELESS
MORATORIUM ON•THE-IN- TELECOMMUNICATION
a newspaper of general circulation, FACILITIES WHICH,.CRE-
printed and published in the City TELECOMMUATIONNICATION
CA WIRELESS ATE TRAFFIC AND PE-
CI Of TELECOMMUNICATION FACILI- DESTRIAN SAFETY-HAz-
Huntington Beach County of Orange A R D s AL E A TE
,TIES IN THE PUBLIC RIGHT- :oP.ERATJONAL CON-
OF-WAY" FILICTS`-WITH -OTHER
State of California and that attached SYNOPSIS: • LAND USE ORI FACT R
-� e = A ,TEMPORARY -MOR .TIES .AUTHORIZED OR
ATORIUM' PROHIBITS, EXISTING ON THE SAME
Notice is a true and -complete copy as OF OR, NEIGHBORING SITE;.
THE INSTALLATION-USED .TH'E-
ANY' FACILITIES USED QUALITY of LIFE iN A
` was • printed � and published� in the OR ASSOCIATED ,WITH
THE TRANSMISSION' OR i PARTICULAR*COMMUNI=
;
Huntington Beach Issue Of Said RECEPTION OF WIRE- tTY OR NEIGHBORHOOD;
LESS COMMUNICATION [CREATE LAND.USE IN ,
SERVICES '(INCLUDING COMPATIBILITIES; . OR;
newspaper to wit the Issue(s) of: CREATE. VISUAL AND
TION;PERSONAL R, AN- 'AESTHETIC .BLIGHT OR
PION; CELLULAR, AND `VIEW INTERFERENCE
PAGING) WITHININ; ON;' DUE TO EXCESSIVE SIZE,
BELOW; OR ABOVE A'
CITY OWNED, OPERATED HEIGHT, OR'•ABSENCE
OR 'C;0 N T R O L J E D OFCAMOUFLAGE.
STREET OR ALLEY, PUB COPIES OF THIS OR-
STREET
LIC RIGHTS-OF-WAY'IN ABLE.
E; ARE .AVAIL-
AUGUST 1 7 2 O O 6 THE ,SIDEWALKS, ANDA ABLE OF THE. CITY
OR PARKWAY ADJACENT CLERKS OFFICE.
THERETO` (HEREAFTER PASSED AND ADOPTED
"PUBLIC RIGHT-OF by.the City Council,of
WAY"). THIS ISSUE WAS the City of.Huntington
INITIALLY ,RAISED,_IN Beach at a regular meet
2005"WHEN 'VERIZON ing held-on 'August;7;
WIRELESS REQUESTED- •2006 by the following
PERMISSION TO PLACE roll call vote:
that
WIRELESS ANTENNAE IN CoerpAYES: Bohr,` Green;
declare, under penalty of`perjury, LI!aL THE' PUBLIC RIGHT-OF Hanse ' Sullivan Hardy;
WAY' BUT CLAIMED IT 'Hansen Cook
ne-
WAS NOT REQUIRED-TO 4 NO ENT:No
PAY ;ANY .,FEE ,OR, ABSENT:None
the foregoing is true and correct. Thks ordinance k ef-
CHARGE FOR USE OF a S fective immediately:
THE PUBLIC. RIGHT-OF-, CITY OF.HUNTINGTON
- WAY', .AND UBS EFUSED TO BEACH `
Executed on AUGUST 1 7, 2 O O 6 GN TAN LY RAGREEMENTT 2000 MAIN STREET
OFFERED TO OTHER HUNTINGTON BEACH,
WIRELESS -CARRIERS CA92648
at Costa Mesa, California. FOR.USE OF THE PUBLIC -' 714-536-5227
RIGHT-O.F=WAY.. JOAN L.FLYNN,CITY''
CLERK
Published' H ungt tinon
Beach Independent
August 1712OQ6 083-576 .I
w,Signature , w
2095 SEP _
q
Council/Agency Meeting Held:/-1 ff,4 3 i : 1
Deferred/Continued to: A�� "t), 5�e�
M Approved ❑ Conditionally Approved ❑ Denied 4 WW -, City Clerk's SignaturiV
Council Meeting Dater September 18, 2006 Department ID Number: CA-06-32
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION
SUBMITTED TO: HONORABLE MAY D CITY COUNCIL MEMBERS
SUBMITTED BY: JENNIFER MCG ity Attorney
PREPARED BY: JENNIFER McGR , ity Attorney
SUBJECT: Extension of Moratorium on the installation of wireless telecommunication
facilities in the public right-of-way.
Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s)
Statement of Issue: Should the City adopt an extension to Interim Ordinance No. 3748
providing for a moratorium on the installation of wireless telecommunications facilities in the
public right-of-way.
Funding Source: N/A
Recommended Action: Motion to approve and adopt Resolution No.o?ao 4 -ha with
specific findings regarding the detriment to the public health, welfare and safety and
extending Interim Ordinance No. 3748 for six months.
Alternative Action(s): Do not adopt Resolution No. o,O0 P -A--A.
Analysis: 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. Pursuant to Government Code Section 65858(d), ten days prior to the expiration of
Interim Ordinance No. 3748, the City Council shall issue a report describing the measures
taken to alleviate the condition which lead to the adoption of Interim Ordinance No. 3748.
Government Code Section 65858 authorizes the City Council to extend Interim Ordinance
No. 3748 for up to ten months and 15 days upon notice and a public hearing. The
extension requires a four-fifths (4/5th) vote of the Council for adoption.
—:Z7-
06 extend interim -2-
REQUEST FOR COUNCIL ACTION
MEETING DATE: September 18, 2006 DEPARTMENT ID NUMBER: CA-06-32
Attached as Exhibit A to Resolution No. a°196- 62- is a report detailing the steps that City
staff has taken to alleviate the inconsistencies between City Zoning and Subdivision
Ordinance Section 230.96 and state and federal law consistent with recent court decisions.
At this time the City Y q Attorney requests an extension of Interim Ordinance No. 3748 as
provided by Government Code Section 65858. The City Attorney has already prepared an
amendment to ZSO Section 390.96 as previously directed by City Council on August 7, 2006
which is anticipated to be considered by the City's Planning Commission within the next 60 to
90 days. The proposed amendment has prompted the City Attorney to prepare additional
amendments to relevant provisions of the Huntington Beach Municipal Code that relate to the
installation of facilities within the public right-of-way. The City Attorney anticipates conferring
with the Public Works Department on these proposed amendments and bringing the
amendments to City Council for consideration in the ne;.t 90-120 days.
Attachment(s):
NumberCity Clerk's
Page • Description
1. Resolution No.4o04, A Resolution of the City Council of the
City of Huntington Beach Extending Interim Ordinance No. 3748 for Six
Months
06 extend interim -3- 9/5/2006 4:50:00 PM
ATTACHMENT NO . 1
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
06
published in newspaper of general circulation a notice advising that on September 18, 20 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 ,2006 .
Mayor
REVIEWED AND APPROVED: INMATED AND APPROVED AS TO FORM:
ity Ad inistrator jh
Attorney
05-220/4337 2
EXHIB-1-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. 4`h 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. 21tl
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 h&�,e a franchise agfeemef*wit obtain an encroachment permit from the City
City,ef the ewfter-that has a wireless fianehise agreement with the 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 a4lewing wireless between the City and the public utility permits
installation of wireless communication facilities. (3568-9/02)
(36689102)
05-220/4344
Res. No. 2006-62
STATE OF CALIFORNIA
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
1, 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
CitVClerk and ex-officio Merk of the
City Council of the City of
Huntington Beach, California
RCA ROUTING SHEET
INITIATING DEPARTMENT: City Attorney
SUBJECT: Extension of Moratorium on the installation of wireless
telecommunication facilities in the public right-of-way.
COUNCIL MEETING DATE: September 18, 2006
RCA ATTACHMENTS STATUS
Ordinance (w/exhibits & legislative draft if applicable) Attached
Resolution (w/exhibits & legislative draft if applicable) Not Applicable
Tract Map, Location Map and/or other Exhibits Not Applicable
Contract/Agreement (w/exhibits if applicable)
(Signed in full by the City Attorney) Attached
Subleases, Third Party Agreements, etc.
Approved as to form by City Attorne ) Not Applicable
Certificates of Insurance (Approved by the City Attorney) Not Applicable
Financial Impact Statement (Unbudget, over $5,000) Not Applicable
Bonds(If applicable) Not Applicable
Staff Report (if applicable) Not Applicable
Commission, Board or Committee Report (If applicable) Not Applicable
Findings/Conditions for Approval and/or Denial Not Applicable
EXPLANATION FOR MISSING ATTACHMENTS
REVIEWED RETURNED FORVYARUD
Administrative Staff
Assistant City Administrator Initial
City Administrator Initial
City Clerk ( )
EXPLANATION FOR RETURN OF ITEM:
SpaceOnly)
RCA Author: LM
PROOF OF PUBLICATION
STATE OF CALIFORNIA)
) ss.
COUNTY OF ORANGE )
am a Citizen of the United States and a
ON Mal
resident of the County aforesaid; I am NW07.a Mk He g in t6 Wosion 0 Tim
over the age of eighteen years, and not a 11110raterivre oil tW instplkiien of Wireless
fieW=M*wlW Focilf M in tare Pumic Righ 4way
party to or interested in the below entitled Notice is.hereby th.giveh'that j public nearing
matter. I am a principal clerk of .the Hu be held ea h,-in ty C"ovn#c of the City-
,Huntington Huntington Beach,-in tha:Cotincil Chambers of
p N the Civic Gerrter,.Huntinglon'Beach loFated,"
2000 Main Street, at the hour of fi;00 f'M,
HUNTINGTON BEACH INDEPENDENT, as,soon at possibi� r on Monday,
18th Of Septemb .the'purpose 'b,
a newspaper of general circulation, considering,ext'enU ifie nt{iratotfum on f
installation'of-wirele,*'J*communication fae iM
printed and published in the City of ties intbe.publicrlg��way;.
All interested persons (especially sentmr citi-
zens
Huntington Beach County of Orange lattend
and handicapped in 6inion s)are invited to
> > to express thee.mpinionS for, or against;
State of nd that attached the proposed extension communications
with written or Cit
California,, comments. 'Written eommunt+eaiians to the City
Councit also may be mailed to the City Clerk.
Notice is a true and complete copy as Further'.infoj�natfon may be mbtaiged from the
wasOff printed and published in the Hunts to the City Clerk;. 2000 Main street,'
Huntington Beach;CA,92(i48(telephone number:
p p (714)536 5227.
to
Huntington Beach issue of said The City. a Huntington handicBeachapped
pedestatu in
accommodate persons of ftandicappEd status in
newspaper to wit the Issue(s) of: the admission or access to, or, treatment or
employment in, City programs or activities. The
City of Huntington Beach is an equgl;opportuhit
employer.
Wed$ep ember 7 20%
� fty 9�11smt! a
-'2fu n'Stroaretk
SEPTEMBER 07, 2006 ei P Stmillita"3 s2627
Published"Huntington ,eac 'Independent Septem-
ber7 2006 09 -637
declare, under penalty of perjury, that
the foregoing is true and correct.
Executed on SEPTEMBER 0 7, 2 0 0 6
at Costa Mesa, California.
Signature
08/31/06 THU 15:54 FAX 949 646 5008 DAILY PILOT-LGL DEPT fj001
Dail Pilot Not
y
Daily of
usat► n pm H1
Salesperson.
Phone. Ad#27318 a s
mow: �1t 104 rk- �_ ri
. 714 =� _.7_v a9-o7=os 2 x 442:890
CITY OF HUNTINGTON BEACH 09-07-06 ! S i 4.50TCNInch
P.O.BOX 784 In
HUNTINGTON BEACH,CA 92648 s &Legal Huntington Beach �£LinerLj
I_ T Tr
�l 9962 Susan Channels °$
277391004 y, F _. i si 13000 LegalNotices
- P Feu ti i TCN HBi
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Beach
(1�i Patty a
zm
Ad copy:
PUBLK HEANNG
OTY OF HUNTINGTON BEAOI
Notice of Pubic Hearing on the Extensim of The
!Moratorium on the Installation of Wireless
Tehtcom inunicatien Facilities in the Pubic fight-of-Way
Notice is hereby given that a public hearing
will be held by the City Council of the City of
Huntington Beach, in the Council Chambers of
the Civic Center, Huntington Beach located at
2000 Main Street, at the hour of 6:00 P.M, or
as soon as possible thereafter on Monday, the
18th of September, 20D6 for the purpose of
considering extending the moratorium on the
installation of wireless telecommunication
facilities in the public right-of-way.
All interested persons (especially senior
citizens and handicapped individuals)are invited
to attend to express their opinions for, or
against,the proposed extension with written or
oral comments.Written communications to the
City Council also may be mailed to the City
Clerk.Further information may be obtained from
the Office of the City Clerk, 2000 Main Street,
Huntington Beach,CA,92648(telephone number:
(714)536-5227.
The City of Huntington Beach endeavors to
accommodate persons of handicapped status in
the admission or access to, or treatment or
employment in, city programs or activities.The
City of Huntington Beach is an equal opportunity
employer.
Dated September 7,2006
City of Huntington Beach
By:Joan Flynn,City Clerk
2000 Bin In Street
Huntington Beach,CA 92648
Telephone:(714)536-5227
Published Huntington Beach Independent
September 7,2006 091.637
--- ad proof pg.1 ---
i
J.
CITY OF HUNTINGTON BEACH
INTERDEPARTMENTAL COMMUNICATION
CONFIDENTIAL
ATTORNEY-CLIENT-PRIVILEGED MATERIAL
TO: ADMINISTRATION
FROM: JENNIFER McGRATH, City Attorney
DATE: August 30,2006
SUBJECT: Moratorium on Wireless Facilities in the Public Right-of-Way;
Publication of Notice of Public Hearing
Please arrange the attached notice to be published one time at least ten days prior to the
public hearing to be held on September 18,2006.
On August 7,2006,the City Council approved a 45-day moratorium on the installation of
wireless facilities in the public right-of-way. California law authorizes the extension of
this moratorium following a notice and a public hearing.
My office is now preparing a Request for Council Action for the September 18 2006,
meeting of City Council that seeks to extend the moratorium beyond September 21,2006.
In furtherance of this request,please arrange for the publication of the attached notice.
If you have any questions,please do not hesitate to contact me or Deputy City Attorney
Leone Mulvihill.
V �
JENNIFER McGRATH
City Attorney
LMlab
I
Attachment: Notice for Publication
1m/06memos/Wireless Facilities 8-30-06
PUBLIC HEARING
CITY OF HUNTINGTON BEACH
Notice of Public Hearing on the Extension of The Moratorium on the Installation of Wireless
Telecommunication Facilities in the Public Right-of-Way
Notice is hereby given that a public hearing will be held by the City Council of the City of
Huntington Beach, in the Council Chambers of the Civic Center, Huntington Beach located at
2000 Main Street, at the hour of 6:00 P.M, or as soon as possible thereafter on Monday, the 18t'
of September, 2006 for the purpose of considering extending the moratorium on the installation
of wireless telecommunication facilities in the public right-of-way.
All interested persons (especially senior citizens and handicapped individuals) are invited to
attend to express their opinions for, or against, the proposed extension with written or oral
comments. Written communications to the City Council also may be mailed to the City Clerk.
Further information may be obtained from the Office of the City Clerk, 2000 Main Street,
Huntington Beach, CA, 92648 (telephone number: (714) 536-5227.
The City of Huntington Beach endeavors to accommodate persons of handicapped status in the
admission or access to, or treatment or employment in, city programs or activities. The City of
Huntington Beach is an equal opportunity employer.
Dated City of Huntington Beach
By: Joan Flynn, City Clerk
2000 Main Street
Huntington Beach, CA 92648
Telephone: (714) 536-5227
** Notice to City Clerk ** this copy to run once in newsprint no later than 10 days prior to the
public hearing date.
05-220/4282
CITY OF HUNTINGTON BEACH 2006 S P -7 Pi 5: 39
Interdepartmental Communication3
Itw
TO: HON. MAYOR and COUNCILMEMBERS
PENELOPE CULBRETH-GRAFT, City Administrator
ROBERT BEARDSLEY, Director of Public Works
SCOTT HESS, Acting Director of Planning
JOAN FLYNN, City Clerk
FROM: JENNIFER MCGRATH, City Attorney
DATE: September 6, 2006
SUBJECT: Report of the City Council of the City of Huntington Beach dated September 5,
2006
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. Pursuant to Government Code Section
65858, at least 10 days prior to expiration of the 45-day moratorium, the City must issue a report
on the steps taken to alleviate the conditions that led to the adoption of the moratorium.
Attached hereto is a report dated September 5, 2006 for distribution to the public.
Please note that a public hearing will be held on September 18,2-0D6, at which time the City
Council will consider extending the 45-day moratorium on the installation of wireless
communication facilities in the public right-of-way.
If you have any questions, please do not hesitate to contact me.
JENNIFER MCGRATH,
City Attorney
/k
Attachment as above
05-220/4370
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 Ordi�ance ("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. 4 1h748.)
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
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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.
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