HomeMy WebLinkAboutURGENCY ORDINANCE 3766 - INTERIM ORDINANCE - TEMPORARY MORAT 4-
Council/Agency Meeting Held:
Def ed/Continued to: /
Approved ❑ Conditionally Approved ❑ Denied City Clerk's Signature
Council Meeting Date: 3/5/2007 Department ID Number: 2007-03
Ctd CITY OF HUNTINGTON BEACH
- -�f'�� REQUEST FOR CITY COUNCIL ACTION
�c
SUBMITTED TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
SUBMITTED BY: PAUL EMERY, DeputK City Administrat
JENNIFER McGRAI
ty AttorneyPREPARED BY: JENNIFER McGRAty Attorney
SUBJECT: MORATORIUM ON THE INSTALLATION OF WIRELESS
TELECOMMUNICATIONS FACILITIES INCLUDING THOSE IN THE
PUBLIC RIGHT-OF-WAY
E
ment 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 and
including interim regulations that will allow providers to apply for permits for wireless
communications facilities throughout the City including the public right-of-way?
Funding Source: N/A
Recommended Actions: Motion to approve and adopt Ordinance No.3766 and adopt
specific findings regarding the detriment to the public health, welfare and safety and
extending Interim Ordinance No. 3748 for one year.
Alternative Action(s): Do not approve.
Analysis: On August 7, 2006, the City Council adopted Interim Ordinance No. 3748, a 45-
day moratorium on the installation of wireless telecommunication facilities in the public right-
of-way. On September 18, 2006, this moratorium was extended for six months.
Staff now requests adoption of Ordinance No. 3766 which serves to extend Interim
Ordinance No. 3748 and provides interim regulations that will permit the City to process
permits during the moratorium for wireless facilities that are installed on private and public
property and in the public right-of-way.
After notice and a public hearing, Government Code Section 65858 authorizes the City
Council to extend a moratorium for ten months and 15 days and subsequently extend the
interim ordinance for one year. However, not more than two extensions may be adopted.
For this reason, the City Attorney requests a year extension but anticipates that permanent
regulations will be considered by the Planning Commission in April and forwarded to City
Council immediately thereafter. The regulations to be considered by the Planning
Commission will be consistent with the interim regulations included in Ordinance No. 3766
The interim regulations included in Ordinance No. 3766 are consistent with the direction of
City Council that the City Attorney review current State and federal law and develop
regulations for the placement of wireless communication facilities in the public right-of-way.
Among other things, the interim regulations require all facilities installed in the public right-of-
way to be undergrounded except for antennas. The interim regulations also include a
permitting process to provide consistent regulations regardless of where the facilities are
located to encourage and facilitate wireless communications throughout the City, while
minimizing visual clutter and encouraging co-location with other facilities.
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, Section 15061(b)(3)).
Attachment(sl:
City Clerk's
. . - NumberDescription
1. Ordinance No. 3766 Amending Zoning & Subdivision Code Section
230.96 Regarding Wireless Communication Facilities
2 Report of the City Council dated February 23, 2007
ii ;
ATTACHMENT NO. 1
ORDINANCE NO. 3766
AN INTERIM ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF HUNTINGTON BEACH ESTABLISHING A TEMPORARY MORATORIUM
ON THE INSTALLATION OF WIRELESS TELECOMMUNICATION FACILITIES
INCLUDING THOSE IN THE PUBLIC RIGHT OF WAY AND DECLARING
THE URGENCY THEREOF, TO TAKE EFFECT IMMEDIATELY
The City Council of the City of Huntington Beach does hereby ordain as follows:
SECTION 1. The Moratorium on installation of wireless facilities located in the public
right-of-way, which the City adopted pursuant to Ordinance No. 3748 and extended through
March 18, 2007 pursuant to City Resolution No. 2006-62, is now extended for one year, through
March 18, 2008.
SECTION 2.
A. Findings and Purpose.
The City Council finds and declares:
I. 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.
2. Until the City received an application from Verizon in 2005, the City had never
received an application to install a wireless facility in the public right-of-way. All
such facilities had been located on private property. When the City denied the
application, Verizon sued in 2006
3. In 2005, the 91h Circuit Court of Appeals issued a ruling in Metro PCF, Inc., v.
City and County of San Francisco, 400 F.3d 715 (9`" Cir 2005) that clarified the
standards that apply with respect to regulations for wireless telecommunication
facilities, especially as they relate to the requirement that such regulations not
discriminate in allowing nor have the effect of prohibiting the provision of
personal wireless services.
4. On September 18, : 006, the Califarnia Supreme Court, in the case entitled Sprint
Telephone PCS v. County of San Diego, agreed to determine whether, pursuant to
Public Utility Code Section 7901 give wireless communication providers the right
to erect antennas in the public right-of-way, and (Pub. Util. Code sections 7901,
1
8122
Ordinance No.3766
7901.1) apply to wireless telecommunications providers, and whether Section
7901.1(a), which gives local governments the right to control the "time, place and
manner in which roads . . . are accessed," permit the City to regulates the
aesthetics of cellular telecommunications towers erected in the public right-of-
way.
5. 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 throughout the City, which regulations include
provisions relating to the design and aesthetics of such facilities, including
regulations that allow for the approval of applications for wireless facilities in the
public right-of-way while the scope of the City's authority is uncertain due to the
pending Supreme Court decision in the Sprint case.
6. Accordingly, on August 7, 2006, the City adopted Ordinance No. 3748, imposing
a 45-day moratorium on the approval of any wireless communications services
within the public right of way, so that the City could adopt new regulations
consistent with State and Federal law ("the Moratorium"). The Moratorium was
later extended by six months pursuant to City Resolution No. 2006-62, and is now
set to expire on March 18, 2007. The purpose of the Moratorium is to ensure that
all no future wireless telecommunications facilities may be installed, constructed
or modified that might create or result in:
i. Land use incompatibilities;
ii. Visual and aesthetic blight or view interference due to excessive size,
height, or absence of camouflaging;
iii. Traffic and pedestrian safety hazards due to unsafe location of poles,
towers, equipment cabinets or other materials or construction, particularly
in PROW locations;
iv. Reduced property values;
v. Operational conflicts with other land use or facilities authorized or
existing on the same or neighboring sites; or
vi. Deterioration in the quality of life in a particular community or
neighborhood.
7. During the Moratorium, the City has made substantial progress in developing
appropriate regulations relating to the installatior. of all wirele:,3 facilities within
the City that are consistent with the requirements of State and Federal law.
However, final regulations are not yet ready for review and recommendation by
the City Planning Commission, and consideration and adoption by the City
2
8122
Ordinance No.3766
Council. There are pending applications on file with the City for the installation
of wireless facilities. The City fully recognizes its responsibilities under the
Federal Telecommunications Act of 1996 to not unreasonably delay installation of
wireless facilities. Accordingly, the City Council will extend the current
Moratorium and expand it to include all wireless facilities in the City, subject to
providing interim regulations to allow the development of such facilities on
private property or other public property and in the public right-of-way pending
the adoption of final regulations. 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.
B. Applicability_.
The provisions of this ordinance shall apply to all facilities within the City 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.
C. Moratorium.
1. The City adopts a Moratorium on the installation or modification of Facilities
within all other locations in the City not in the public right-of-way. This
Moratorium shall extend for 45 days, through April 16, 2007.
2. Together, the Moratoriums described in Subsections 1 and 2 are intended to
prohibit issuance of permits for such Facilities, except pursuant to the terms and
conditions of Section 3 below. {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 are tolled during the term of the moratorium.
D. 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
3
8122
Ordinance No. 3766
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.
E. 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.
F. 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 3. Notwithstanding the provisions of Section 1 and Section 2, the City will
continue to process for all applications pursuant to this Section 3 to encourage and facilitate
wireless communications throughout the City, while preventing visual clutter by locating
wireless communication facilities where they are invisible to pedestrians, and co-located with
other facilities. The City will process applications for all wireless facilities to be erected,
located, or modified within the City of Huntington Beach on or following the date of this
ordinance so long as the applicant complies with the regulations set forth in this Section 3
regarding location, placement, construction, modification and design, which regulations are
necessary to protect the public safety, general welfare, and quality of life in the City of
Huntington Beach. All applications, and subsequent approval thereof, must comply with the
regulations included in this Section 3 as well as all existing ordinances of the City of Huntington
Beach, including those may be adopted by the City Council subsequent to the adoption of this
ordinance, as the same may be amended from time to time.
A. Definitions. For the purpose of this Section 3,the following definitions for the
following terms shall apply:
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.
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.
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,
facade mounted antennas treated as architectural elements to blend with the
existing building, flagpoles, church steeples, fire towers, and light standards.
4
8122
Ordinance No.3766
4. Ground Mounted Facility. Any wireless antenna that is affixed to a pole,tower or
other freestanding structure that is specifically constructed for the purpose of
supporting an antenna.
5. Microwave Communication. The transmission or reception of radio
communication at frequencies of a microwave signal (generally, in the 3 GHz to
300 GHz frequency spectrum).
6. Pre-existing Wireless Facility. Any wireless communication facility for which a
building permit or conditional use permit has been properly issued prior to the
effective date of this ordinance, including permitted facilities that have not yet
been constructed so long as such approval is current and not expired.
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.
8. Stealth Facility or Technique. 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.
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,
recreational facility lighting, or any other utility which meets the purpose and
intent of this definition.
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 wails 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.
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.
B. Applicability. All wireless communication facilities which are erected, located, or
modified within the City of Huntington Beach shall comply with these interim
regulations, provided that:
1. All facilities for which building permits were issued prior to the effective date of
this Ordinance, shall be exempt from this Ordinance.
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.
5
8122
Ordinance No. 3766
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)
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.
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.
6. Any antenna structure that is designed to receive radio broadcast transmission.
7. Any antenna structure used by authorized amateur radio stations licensed by the
FCC.
C. 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 comply with the base
district height limit for modified facilities, and are compatible with surrounding
buildings and land uses by incorporating stealth techniques; or
b. Completely stealth facilities and 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 Department approval of a Wireless Permit Application, a Conditional Use
Permit 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:
6
8122
Ordinance No. 3766
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. 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.
D. Wireless Permit Required. No wireless communication facility shall be installed
anywhere in the City, without approval of a Wireless Permit by the Director. The
applicant shall submit a Wireless Permit Application and demonstrate that the antenna is
located in the least obtrusive location feasible so as to eliminate any gap in service. The
applicant shall also provide documentation that demonstrates the following:
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.
7
8122
Ordinance No.3766
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 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. 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 architectLire 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.
8
8122
Ordinance No. 3766
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.
c. General Provisions: All Wireless Communication Facilities shall comply with the
Huntington Beach Urban Design Guidelines.
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.
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.
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.
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.
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.
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.
8. Si ns. The facility shall not bear any signs or advertising devices other than
certification, warning, or other required seals of signage.
9. Facilities on Public Property. Any wireless communication facility to be placed over,
within, on 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 shall be required.
9
8122
Ordinance No.3766
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 who 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, on or beneath the public right-of-way shall comply with the following
standards:
a. Any wireless communication facilities to be constructed on or beneath the public
right-of-way must obtain an encroachment permits from the City and the
applicant must provide documentation demonstrating that the applicant is a state-
franchised telephone corporation exempt from local franchise requirements.
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.
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 to Title 12 of the Huntington
Beach Municipal Code, as the same may be amended from time to time.
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 Sprint
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 question, any applicant seeking to use the public right-of-
10
8122
Ordinance No. 3766
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:
1. The City has determined that the operator has resumed operation of the
wireless communication facility within six (6)months of the notice; or
2. The City has received written notification of a transfer of wireless
communication operators.
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.
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 me 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
11
8122
Ordinance No.3766
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.
SECTION 4. 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
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 5. 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 5th day of March , 2007.
a r
ATTEST: APPROVED AS TO FORM:
IF
-d
City Clerk Z- City ttorney
REVIEWED AND APPROVED: INITIATED AND APPROVED:
r City Ad inistrator ity Attorney
Z .(J�
12
8122
Urgency Ord. No.3766
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 5th day of March,2007 and was
passed and adopted by at least five affirmative votes of said City Council.
AYES: Bohr, Carchio, Cook, Coerper, Green, Hansen, Hardy
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
March 15,2007 v'
In accordance with the City Charter of said City City Clerk and ex-officio Clerk
Joan L. Flynn,City Clerk of the City Council of the City
Deputy Ci Clerk of Huntington Beach, California
ATTACHMENT NO . 2
REPORT OF THE CITY COUNCIL OF THE
CITY OF HUNTINGTON BEACH
INTERIM ORDINANCE NO. 3748
INSTALLATION OF WIRELESS FACILITIES INCLUDING
THOSE IN THE PUBLIC RIGHT-OF-WAY
February 23, 2007
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 maybe 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 was extended on September 18, 2006. 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. 41h 748.)
Since 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 existing regulations relating to installing wireless facilities in the public-right-
of-way. 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 between the provisions of the City's Zoning Code and the Huntington
Beach Municipal Code that relate to the wireless facilities, encroachments in the public right-of-
way and street work generally. (See, Huntington Beach Municipal Code Chapter 12.13 ("Street
Work Generally"); Huntington Beach Municipal Code Chapter 12. 20 ("Utility Structures"); and
Huntington Beach Municipal Code Chapter 12.38 ("Encroachments"); and, Huntington Beach
Municipal Code Chapter 12.48 ("Wireless Digital Communication Radio Network").) As a
result of these discussions, it seemed appropriate for the City to reconsider the approval process
for all wireless facilities not just those installed in the public right-of-way.
06-595/8202
1
Report of the City Council
February 23, 2007
Page 2 of 2
City Staff presented these issues during a study session with the City Council on February 20,
2007. Consistent with this discussion, City Staff has prepared interim regulations that provide a
consistent mechanism by which the City may lawfully regulate the installation of wireless
facilities throughout the City including those within the public right-of-way. City staff is now
currently processing a zoning text amendment to ZSO Section 230.96 that is consistent with
these interim regulations. It is anticipated that the Planning Commission will consider the
zoning text amendment in April, 2007.
This proposed extension to be considered by City Council on March 5, 2007 will provide
sufficient time for staff to present the zoning text amendments to the Planning Commission and
also allows any proposed wireless communication facilities to be processed under regulations
that are consistent with current State and federal law.
06-595/8202
2
RCA ROUTING SHEET
INITIATING DEPARTMENT: CITY ATTORNEY
SUBJECT: MORATORIUM ON THE INSTALLATION OF WIRELESS
TELECOMMUNICATIONS FACILITIES IN THE PUBLIC
RIGHT-OF-WAY
COUNCIL MEETING DATE: March 5, 2007
ATTAENT
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 Ap licable ❑
Contract/Agreement (w/exhibits if applicable) Attached ❑
(Signed in full by the City Attonyey) Not Applicable ❑
Subleases, Third Party Agreements, etc. Attached ❑
(Approved as to form by City Attome ) Not Applicable ❑
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 ❑
Not Ap licable ❑
Findings/Conditions for Approval and/or Denial Attached ❑
Not Ap licable ❑
y
EXP .AI A IN $$WO ATTACHMENTS
` . . ED
RE � Wr �ED
Administrative Staff
Deputy City Administrator Initial
City Administrator Initial ( ( )
City Clerk
XPLANATION F0,*AE"r`URN OF'1T "
(Be7bw SpaceFor Only)
RCA Author: Jennifer McGrath, City Attorney
RECEIVED
HB CITY OF HUNTINGTON BE J"R -5 PH 1` 56
INTERDEPARTMENTAL COMMUNICATD 0 L i:d y"-i
CITY OF
HUNTINGTOH BEACH
TO: HONORABLE MAYOR AND
MEMBERS OF THE CITY COUNCIL
FROM: JENNIFER McGRATH, City Attorney
DATE: March 5, 2006
SUBJECT: Late Communication
City Council Meeting of March 5, 2007
Agenda Item Number D-I
Attached hereto is a PowerPoint presentation to be included in Agenda Item D-1.
JENNIFER McGRATH
City Attorney
Attachment: PowerPoint Presentation to be included in Agenda Item D-1
c: Penelope Culbreth-Graft, City Administrator
Bob Hall, Deputy City Administrator
Joan Flynn, City Clerk
06-595/8310
3xs/el e 7/
MORATORIUM ON
WIRELESS FACILITIES
BACKGROUND
■ August 2006 -- City Council adopted a 45-day
moratorium on the installation of wireless
facilities in the public right-of-way as recent
federal and state case law challenged the City's
ability to require the payment of a franchise fee
for use of the public right-of-way.
■ The moratorium was extended to March 17,
2007 to permit additional staff review.
2
ORDINANCE NO. 3766
(1 ) Extends the moratorium to allow sufficient
time to bring a final ordinance to the
Planning Commission;
(2) Permits wireless communications
companies to apply for a wireless
facilities permit within the public right-of-
way; and
(3) Provides temporary regulations for the
entitlement process for all wireless facilities
on private property, on public property and
in the public right-of-way.
3
The proposed interim ordinance permits wireless
facilities if:
(1 ) the proposed site is the feast
obtrusive site;
(2) is necessary to continue wireless
coverage within the area; and
(3) colocation is not feasible.
Facilities within the public right-of-way are
subject to additional regulations specifically
addressing undergrounding.
4
City Staff will be presenting the
interim regulations as a Zoning
Text Amendment to the Planning
Commission on March 27, 2007.
5
RECOMMENDED ACTION
1 ) Extend moratorium on wireless facilities
within the public right-of-way.
2) Adopt a moratorium on wireless faciliites
throughout the City.
3) Adopt interim regulations that will permit
wireless facilities during the moratorium.
s
AFFIDAVIT OF PUBLICATION PROOF OF PUBLICATION
This space is for the County Clerk's Filing Stamp
STATE OF CALIFORNIA, )
)Ss.
County of Orange )
I am a citizen of the United States and a resident
of the County aforesaid, I am over the age of
eighteen years, and not a party to or interested
in the above entitled matter. I am the principal
clerk of The Orange County Register, a
newspaper of general circulation, published in
the city of Santa Ana, County of Orange, and
which newspaper has been adjudged to be a _-
newspaper of general circulation by the Superior Proof ofPublicatii PUBUopEAJMNG
Court of the County of Orange, State of C"T or UWnJJa*oN
California,under the date of 1/18/52, Case No. =Notica of public Hearing bn
the Moratorium on the Inetel-
latiolecom-
A-21046,that the notice,of which the annexed is -munlcation F8CRItieeless eii bla
"kg
Those in the
a true printed copy, has been published in each Right;p i Way Nen that a
Notice is heregby
ublic hennC u�nicib ofhthe
regular and entire issue of said newspaper andeld
gy the city, on Beacn m�
tChe Counciat l Chhambers of the
not in any supplement thereof on the following Civic Center, Huntingtonl'-
Beach located at 2OW
weet, at the hour 0 ' ble'
dates,to wit: p,M,or as soon as ppoothe
':,ttrereafter on Mondayor the
February 23,2007 6p��°p98 March,cons de'riing ex-
tending the moratorium on
the Installation wireless
telecommunication ffac wa -
"I certify (or declare) under the penalty of All interested persons(.Pe-
ad senior citizens
handicapped individuals)are
perjury under the laws of the State of California invited to attend to exP .
their opinions for.or against,
the proposed extension With
that the foregoing is true and correct": written or oral comments
ons to
Written coommuni alsotimaY be'
the CityC
y mailed to the City Clerk• Fur-
Executed at Santa Ana, Orange County, be ob-
ther in formation may of the
Caltforn*on tamed from the Office
City Clerk,2OW Mai Street;i
Huntington Be CA,';
number:
92� fate hone
Date February ,20 '(7ta) 27`
me City of Huntington
"Beach eneons tof hanX
capped status In the admix
ccess to, or treat-
Sion or ament or ,loyment in,city
The
Signature programs or acUvfties.oh s
Cent of eQual Opportunity
employer. \
The Orange County Register Dated: February 23.2007
625 N. Grand Ave. city of Huntington.Beach
Joan Flynn,CRY Clerk
Santa Ana, CA 92701oo Maln Sfreet
Huntington Beach,CA®264fi l
(714)796-10'00 ezt.2209 Telephone: 1710 my Regis-
pub:Pub:Oren a County Regis
terms 73 _
AFFIDAVIT OF PUBLICATION PROOF OF PUBLiCATtOiv
This space is for the County Clerk's Filing Stamp.
STATE OF CALIFORNIA, )
)SS.
County of Orange )
I am a citizen of the United States and a resident
of the County aforesaid; I am over the age of
eighteen years, and not a party to or interested
in the above entitled matter. I am the principal
clerk of The Orange County Register, a
newspaper of general circulation, published in
the city of Santa Ana, County of Orange, and
which newspaper has been adjudged to be a PU13UC HfdAMNO
newspaper of general circulation by the Superior o�TM o REACCTHINfiTOIN
UN
Proof of Publics
Notice of Public Hearing on
Court of the County of Orange, State of the Moratorium on the Instal
latlon of Wireless Telecom-
" munication Facilities Includ-
Califorma,under the date of 1/18/52, Case No. Ing Those in the Public
Right-of-way
A-21046,that the notice,of which the annexed is Notice is hereby given that
ublic hearing will be held
the City
Council of the
a true printed copy, has been published in each c of Huntington Beach,In
the Council Chambers of the
_CMc Center, Huntington
regular and entire issue of said newspaper and et located n 2000Mainf ,of
P.M,or as soon as ossible
not in any supplement thereof on the following thereafter on Monday, the
5th of March, 2007, for the .
purpose of considering ex.
dates,to wit: enediir�tallati mo ato tune n
February 23,2007 telecommunication facilities.
Al Interested persons(espe-;
Cully senior citizens and
handicapped individuals)are
invited to attend to express
"I certify (or declare) under the penalty of their opinions for,or against,
the proposed extension with
written or oral comments..
perjury under the laws of the State of California i written communications to
the City Council also may be
mailed to the City Clerk. Fur
that the foregoing is true and correct": taint from may be
Office of the
City Clerk,2000 Main Street,
Executed at Santa Ana, Orange County, Huntington Beach, CA,
92Fi48'- (telephone number.,
California,on (714)536 5227.
I
The City of Huntington Beach -
Date• Feb 23,2007 modal endeavors to accom-
modate arsons of hands-._
capped status In the admis-,
-sion or access to, or treat-' - - -
ment or employment in,city
programs or activities. The:
City of Huntington Beach is,
an equal opportunity
amployer.
Si a
,-Dated: February 23;2007
City of Huntington Beech
The Orange County Register City
Joan Flynn,City clerk
2000 Main Street
625 N. Grand Ave. Huntington Beech,CA 92M
Telephone:.V14)5365227 - -
Santa Ana,CA 92701 P 8 ge ounty Regis- q
(714)796-7000 ext.2209 —e2B-
RECEIVED
HB CITY OF HUNTINGTON BEN"R _5 PM 1` 56
INTERDEPARTMENTAL COMMUNICATIN '
CiT ur
HU i IGTOlg or-ACH
TO: HONORABLE MAYOR AND
MEMBERS OF THE CITY COUNCIL
FROM: JENNIFER McGRATH, City Attorney
DATE: March 5, 2006
SUBJECT: Late Communication
City Council Meeting of March 5, 2007
Agenda Item Number D-1
Attached hereto is a PowerPoint presentation to be included in Agenda Item D-1.
i
io
JENNIFER McGRATH
City Attorney
Attachment: PowerPoint Presentation to be included in Agenda Item D-1
c: Penelope Culbreth-Graft, City Administrator
Bob Hall, Deputy City Administrator
Joan Flynn, City Clerk
06-595/8310
MORATORIUM ON
WIRELESS FACILITIES
BACKGROUND
it August 2006 -- City Council adopted a 45-day
moratorium on the installation of wireless
facilities in the public right-of-way as recent
federal and state case law challenged the City's
ability to require the payment of a franchise fee
for use of the public right-of-way.
IN The moratorium was extended to March 17,
2007 to permit additional staff review.
2
ORDINANCE NO . 3766
(1 ) Extends the moratorium to allow sufficient
time to bring a final ordinance to the
Planning Commission;
(2) Permits wireless communications
companies to apply for a wireless
facilities permit within the public right-of-
way; and
(3) Provides temporary regulations for the
entitlement process for all wireless facilities
on private property, on public property and
in the public right-of-way.
3
The proposed interim ordinance permits wireless
facilities if:
(1 ) the proposed site is the least
obtrusive site;
(2) is necessary to continue wireless
coverage within the area; and
(3) colocation is not feasible.
Facilities within the public right-of-way are
subject to additional regulations specifically
addressing undergrounding.
4
City Staff will be presenting the
interim regulations as a Zoning
Text Amendment to the Planning
Commission on March 27, 2007.
5
RECOMMENDED ACTION
1 ) Extend moratorium on wireless facilities
within the public right-of-way.
2) Adopt a moratorium on wireless faciliites
throughout the City.
3) Adopt interim regulations that will permit
wireless facilities during the moratorium.
s
PROOF OF PUBLICATION
STATE OF CALIFORNIA)
) ss.
COUNTY OF ORANGE )
I am a Citizen of the United States and a IQUINTLY-EX"
No THE
AINTERIM ORDINANCE
CITY OFHUNTINGTON FOR ONE YEAR. HOW-,
resident of the County aforesaid; I am 'I BEACH EVER,. NOT MORE
LEGALNOTICE THAN-TWO EX�TEN-
over the age of eighteen years, and not a S I O WS MAY, BE
ORDINANCE No.3766. ADOPTED. FOR THIS
party to or-interested in the below entitled aaSProdb cl C6�IICCIr ADOPTED. FOR
CITY AT i
fY TORNEY REQUESTED A
matter. I am a principal clerk of the oIIMA cHs 2oaz_ YEAR EXTENSION BUT
P p ( _ ANTICIPATES THAT
HUNTINGTON BEACH INDEPENDENT, "AN INTERIM ORDI- P E R M A N E N T
NANCE OF THE CITY REQULATIONS'WILL BE '
a newspaper of general circulation COUNCIL OF THE CITY PANNING COMM SONSIDERED BY E
ES HUNTINGTON' BEACH SION IN APRIL AND
�+ ESTABLISHING A ?EM-,
printed and published in the City of iPORARY.MORATORIUM FORWARDED TO CITY;,
ON THE INSTALLATION COUNCIL IMMEDIATELY.
Huntington Beach, County of Orange, OF WIRELESS TELECOM- THEREAFTER, THE REG-
g 9 iMUNICATION FACILITIES ULATIONS TO BE CON-
State of California and that attached ,INCLUDING THOSE IN SIDERED BY THE PAN
NINE COMMISSION
WAY PAND S'DECLARING I . WILL Of CONSISTENT
Notice is a true and complete copy,as T H E U R G E N C Y WITH THE INTERIM'
THEREOF, TO TAKE EF REGULATIONS INCLUD-;
was printed and published- in the FECT IMMEDIATELY" ED IN ORDINANCE NO ,
P P 1 SYNOPSIS: 3766..
Huntington Beach issue of said j1 ON AUGUST 6,2006, ' COPIES OF THIS OR
g THE 'CITY COUNCIL DINANCE ARE AVAIL-
P
ADOPTED+INTERIM OR-
ABLE IN I THE",CITY
newspaper to wit the Issue(s) of: ;OINANCE'NO. 8748, A CLERK'S OFFICE.
45-DAY•MORATORIUM P A S S E D A N D
OWTHE INSTALLATION ADOPTED by the,Clty
IOP WIRELESS TILE Council of the City of
COMMUNICATION FA Huntington Beach at a
,CILITIES IN THE PUBLIC; regular meeting held
BRIGHT-OF-WAY. ON March 5,, 2007 by'the
following roll call vote: . '
SEPTEMBIR 18, 2006 �
THIS MORATORIUM! AYES:
MARCH 1 5, 2007 AS EXTENDED FOR 6 Bohn, 1 CGrean,,Ha Cook,
MONTHS. .ORDINANCE Hardyy
+` 3766 SERVES TO NOES: None
EXTEND INTERIM ORDI-, .
INANCE N0. 8748 AND ABSENT:' None
j1 ROVIDES INTERIM' Pursuant to California-
IREGULAT.IONS-THAT Government Code Sec
WILL PERMIT.THE CITY tion 65858(a)and Hun
TO PROCESS PERMITS tington Beach City
I DURING THE MOR- Charter 'Section 501,
I declare under penalty of perjury, that DURING
FOR WIRE this ordinance shall be
come effective Immedi-
`LESS FACILITIES THAT: ately.
the foregoing is true and correct. {VA INSTALLED PUBLIC
LIC
9 9 'VATE AND Pueuc CR1fOF�`HNGTON
`PROPERTY AND IN THE
PUBLIC •RIGHT OP-
WAY. 2000 MAIN STREET
Executed on MARCH 1 5, 2 O 0 7 AFTER NOTICE AND A HUNTINGTON BEACH,CA
I,PUBLIC HEARING,GOV-
"ERNMENT CODE SEC i 9264E
at Costa Mesa, California. I TION'65858 AUTHO 7144$6.5247
R I Z E S THE CITY
JOAN t LFLYNN,F CITY CLERK
MORATORIUM FOR
�ICOUNCIL TO EXTEND A PublishedMLHuntington,
TEN MONTHS AND 15 Beach Independent
DAYS °AND SURSE- March 15,2007 .
Signature