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HomeMy WebLinkAboutWireless Communications Facilities - ZTA 09-002 - Ordinance City ® f Huntington Beach 200o Main Street ® Huntington Beach, CA 92648 (714) 536-5227 ® www.huntingtonbeachca.gov ~ j4 Office of the City Clerk t Joan L. Flynn, City Clerk December 4, 2012 City of Huntington Beach Planning and Building Department 2000 Main Street Huntington Beach, CA 92648 Subject: Zoning Text Amendment (ZTA) No. 09-002 (Wireless Communication Facilities) Request: To amend Section 230.96 (Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance by revising the citywide permitting and entitlement process for wireless communication facilities (e.g. cell phone antennas and towers) as well as other provisions of the current ordinance. The entitlement referenced above was adopted by the City Council on February 6, 2012. The Notice of Action dated February 8, 2012 included a copy of Ordinance No. 3934 that contained incorrect language in Section 3 — Zoning Administrator Approval, and F. 1. — Applicant May Assert Federal Preemption At Time of Appeal To Planning Commission. The errors have been corrected, and the revised copy of Ordinance No. 3934 is attached for your files. If you have any questions regarding this matter, please contact my office at (714) 536-5227. Sincerely, yF oan L. Flynn, CIVIC City Clerk Encl. Copy of Ordinance 3934 (Revised) c: Scott Hess, Director of Planning and Building Ricky Ramos, Senior Planner Sister Cities: Anjo, Japan ® Waitakere, New Zealand ORDINANCE NO. 3934 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING SECTION 230.96 OF THE HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE RELATING TO WIRELESS COMMUNICATION FACILITIES The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance is hereby amended to read as follows: 230.96 Wireless Communication Facilities A. Purpose. This Section of the Zoning Code is to protect public safety, general welfare, and quality of life by regulating the location,height and physical characteristics and provide for orderly and efficient placement of Wireless Communications Facilities in the City of Huntington Beach. Because of the potential negative aesthetic impacts of Wireless Communications Facilities, including visual blight and diminution of property value,the City endeavors to locate antennas within commercial, industrial and other non-residential zones, screen them from view, and encourage co-location with other Wireless Communication Facilities. However, the Federal Telecommunications Act, specifically 47 U.S.C. Section 332(c)(7),preempts local zoning where a Wireless Facility is necessary to remedy a significant gap in the Wireless Provider's service. Consequently, where the.City determines that the Facility does not satisfy City planning and zoning standards,the Wireless Provider may then choose to establish Federal preemption because (i) a significant gap in wireless coverage exists, and (ii) there is a lack of feasible alternative site locations. A myriad of factors are involved in determining if a gap is significant, such as: whether the gap affects a commuter highway; the nature and character of the area and the number of potential users affected by the alleged lack of service; whether the signal is weak or nonexistent, and whether the gap affects a commercial district. Consequently, the City will require scientific evidence from an expert in the field demonstrating the existence of a significant gap in service, and a lack of feasible alternative sites. The applicant will be required to pay for the cost of said expert opinion. B. Definitions. For the purpose of this Section,the following definitions for the following terms shall apply: I. Accessoly Structure. Any structure or equipment that is to be located ancillary to an antenna or antennas in the establishment and operation of a Wireless Communication Facility. 2. Co-Location or Co-Located. The location or placement of multiple Wireless Communication Facilities which are either owned or operated by more than one service provider at a single location and mounted to a common supporting structure, wall or building. 09-2009.002/73032 I Ordinance No. 3934 3. Completely Stealth. Any Wireless Communication Facility that has been designed to completely screen all aspects of the facility including appurtenances and equipment from public view. Examples of completely stealth facilities may include, but are not limited to, architecturally screened roof mounted antennas,facade mounted antennas treated as architectural elements to blend in with the existing building, church steeples, fire towers, and flag.poles and light standards of a typical diameter. 4. Ground Mounted Facility. Any wireless antenna that is affixed to a pole, tower or other freestanding structure that is specifically constructed for the purpose of supporting an antenna. 5. Microwave Communication. The transmission or reception of radio communication at frequencies of a microwave signal (generally, in the 3 GHz to 300 GHz frequency spectrum). 6. Modified Facility. An existing Wireless Communication Facility where the antennas and/or supporting structure are proposed to be altered in any way from their existing condition, including like-for-like replacement but excluding co-location. 7. Pre-existing Wireless Facility_. Any Wireless Communication Facility for which a building permit or conditional use permit has been properly issued prior to the effective date of this ordinance, including permitted wireless antennas that have not yet been constructed so long as such approval is current and not expired. 8. Public Right-of-Way The area across, along, beneath, in, on, over, under, upon, and within the dedicated public alleys, boulevards, courts, lanes,places, roads, sidewalks, streets, ways, private streets with public access easements within the City's boundaries, and City owned properties, as they now exist or hereafter will exist. 9. Roof Mounted. Any wireless antenna directly attached or affixed to the roof of an existing building,water tank, tower or structure other than a telecommunications tower. 10. Stealth Techniques. Any Wireless Communication Facility, including any appurtenances and equipment, which is designed to blend into the surrounding environment. Examples of Stealth Technique include,but are not limited to, monopalms/monopines. 11. Utility Mounted. Any wireless antenna mounted to an existing above-ground structure specifically designed and originally installed to support utilities such as but not limited to electrical power lines, cable television lines,telephone lines, non-commercial wireless service antennas,radio antennas, street lighting but not traffic signals, recreational Facility lighting, or any other utility which meets the purpose and intent of this definition. 12. Wall Mounted. Any wireless antenna mounted on any vertical or nearly vertical surface of a building or other existing structure that is not specifically constructed for the purpose of supporting an antenna(including the exterior walls of a building, an existing parapet, the side of a water tank, the face of a church steeple, or the side of a freestanding sign) such that the highest point of the antenna structure is at an elevation equal to or lower than the highest point of the surface on which it is mounted. 09-2009.002/73032 2 Ordinance No. 3934 I3. Wireless Communication Facility or Facility or Wireless Antenna. An antenna structure and any appurtenant facilities or equipment that transmits electronic waves or is used for the transmission or receipt of signals that are used in connection with the provision of wireless communication service, including,but not limited to digital, cellular and radio service. C. Applicability. This ordinance shall apply to all Wireless Communication Facilities which are erected, located,placed or modified within the City of Huntington Beach. D. Exceptions. The following Wireless Communication Facilities shall be exempt from this Ordinance. 1. Any Facility, which is subject to a previously approved and valid entitlement,may be modified within the scope of the applicable permit without complying with these regulations. However, modifications outside the scope of the valid entitlement or any modification to an existing facility that does not have a previously approved and valid entitlement is subject to the requirements of this ordinance. 2. Any antenna structure that is one meter(39.37 inches) or less in diameter that is designed to receive direct broadcast satellite service, including direct-to-home satellite service for television purposes, as defined by Section 207 of the Telecommunication Act of 1996, Title 47 of the Code of Federal Regulations, and any interpretive decisions thereof. 3. Any antenna structure that is two meters(78.74 inches)or less in diameter located in commercial or industrial zones and is designed to transmit or receive radio communication by satellite antenna. 4. Any antenna structure that is one meter(39.37 inches)or 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. 5. Any antenna structure used by authorized amateur radio stations licensed by the FCC. E. Process to Install and Operate Wireless Communication Facilities. No Facility shall be installed anywhere in the City without first securing either a Wireless Permit or a Conditional Use Permit as required below. l. Wireless Permit Application. The applicant shall apply to the Planning and Building Department for a Wireless Permit by submitting a completed Wireless Permit Application ("Application")and paying all required fees. The Application shall be in the form approved by the Director, and at a minimum shall provide the following information: a. Precise location of the Facility. b. Evidence that the Facility is compatible with the surrounding environment or that the facility is architecturally integrated into a structure. c. Evidence that the facility is screened or camouflaged by existing or proposed topography, vegetation, buildings or other structures as measured from beyond the boundaries of the site at eye level (six feet). 09-2009.002/73032 3 Ordinance No. 3934 d. Evidence that the massing and location of the proposed facility are consistent with surrounding structures and zoning districts. e. Evidence that no portion of the Facility will encroach over property lines. f. Property owner authorization or evidence of fee ownership of property where the Facility will be installed. In the case of City-owned property or any public right-of- way, the applicant shall provide a license, lease, franchise, or other similar agreement from the City to place any Facility over, within, on, or beneath City property or right- of-way. g. Locations of all other Wireless Antennas within 1,000 feet of a proposed ground mounted facility. Co-location of ground mounted facilities shall be required where feasible whenever such a facility is proposed within 1,000 feet of any existing Wireless Antenna. h. Any other relevant information as required by the Director of Planning and Building. The Planning and Building Department will initially review and determine if the Application is complete. The City may deem the Application incomplete and require re- submittal if any of the above information is not provided. 2. Director Approval. Following submittal of a complete Application, the City will determine whether the Facility may be approved by the Director or whether a Conditional Use Permit or other entitlement is required. Wireless Permit applications will be processed based upon the location and type of antennas defined in herein. Although said classifications are assigned at project intake, a re-evaluation of antenna classifications may occur at any point in the process including at the time of review by the Director, Zoning Administrator, Planning Commission or City Council. A Facility not subject to any other discretionary approval may be administratively approved by the Director by issuing a Wireless Permit if it is: a. Co-located on an existing approved Wireless Facility, does not exceed the existing Wireless Facility heights, and employs Stealth Techniques such that the co-located Wireless Facility is compatible with surrounding buildings and land uses;or b. A modified Facility that complies with the base district height limit plus up to an additional 10 feet of height as permitted in Section 230.72 and compatible with surrounding buildings and land uses by incorporating stealth techniques; or c. A Facility that complies with the base district height limit plus up to an additional 10 feet of height as permitted in Section 230.72, is Completely Stealth, and is not ground or utility mounted. The Director may require conditions of approval of the Facility in order to minimize adverse health, safety and welfare impacts to the community. 09-2009.002/73032 4 Ordinance No. 3934 A decision of the Director to grant a Wireless Permit shall become final ten(10) days following the date of the decision unless an appeal to the Planning Commission is filed as provided in Chapter 248 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO). The Director shall issue findings of approval that the Facility meets the above criteria and is not a detriment to the health, safety and welfare of the community. 3. Zoning?Administrator Approval. In the event the Director determines that the applicant does not meet the requirements for Director approval of a Wireless Permit, then the applicant shall apply for a Conditional Use Permit(CUP) to the Zoning Administrator pursuant to Chapter 241 of the HBZSO. Notwithstanding any other provisions of the HBZSO, any new ground or utility mounted wireless facilities shall be required to obtain a CUP. CUP applications shall also include the same information required under subsection E.1. The Zoning Administrator may require, as a condition of approval of the CUP that the applicant minimize significant adverse impacts to the community and public visual resources by incorporating one or more of the following into project design and construction: a. Completely Stealth installations; b. Stealth Techniques; c. Co-location and locating Facilities within existing building envelopes; d. Colorization or landscaping to minimize visual prominence; and/or e. Removal or replacement of Facilities that are obsolete. Further conditions of approval of a facility CUP may be imposed as provided in Chapter 241 of the HBZSO. The Zoning Administrator's decision may be appealed to the Planning Commission in accordance with Chapter 248 of the HBZSO. 4. Design Review. Design review shall be required for any Wireless Communication Facilities pursuant to the HBZSO as well as those located on public right-of-way and on or within 300 feet of a residential district or use in the City. Notwithstanding any other provisions of the HBZSO, design review is not required for Wireless Communication Facilities that may be approved by the Director pursuant to subsection E.2 (Director Approval) above and have all appurtenant facilities and equipment located underground or within an existing building or existing enclosure. F. Applicant ME Assert Federal Preemption At Time of Appeal To Planning Commission. I. If the decision on the Wireless Permit or Conditional Use Permit is appealed(either by applicant or an aggrieved party)to the Planning Commission,the Applicant may assert that Federal Law preempts the City from denying the application because denial would effectively prohibit Wireless Service. The applicant shall pay a Denial of Effective Service appeal fee in an amount to be established by City Council Resolution,which amount shall be the estimated cost for the City to retain an independent, qualified consultant to evaluate any technical aspect of a proposed Wireless Communications 09-2009.002/73032 5 Ordinance No. 3934 Facility, including, but not limited to, issues involving whether a significant gap in coverage exists. A Denial of Effective Service appeal must be submitted prior to the expiration of the appeal period for a Wireless Permit or Conditional Use Permit. 2. The Director shall establish the form of the Denial of Effective Service appeal. At a minimum,the Applicant shall provide the following information as part of its appeal: In order to prevail in establishing a significant gap in coverage claim the applicant shall establish at minimum the following based upon substantial evidence: a. Evidence demonstrating the existence and nature of a significant gap in service in the vicinity of the proposed Facility, including but not limited to whether the gap pertains to residential in-building, commercial in-building coverage, in-vehicle coverage, and/or outdoor coverage. b. Evidence demonstrating that the applicant has pursued other feasible sites for locating the Facility, but that they are unavailable on commercially practicable terms. c. Evidence demonstrating the radio frequency signal strength transmission requirements and objectives that the applicant has established for the Southern California region, and for the City of Huntington Beach. d. Radio frequency propagation maps demonstrating actual transmission levels in the vicinity of the proposed Facility site, and any alternative sites considered. e. Radio frequency drive tests demonstrating actual transmission levels in the vicinity of the proposed Facility site, and any alternative sites considered. f. Reports regarding the applicant's monthly volume of mobile telephone calls completed,not completed, dropped,handed-off, not handed-off, originated and not originated for the signal area to be covered by the proposed Facility. g. Any proprietary information disclosed to the city or the consultant is deemed not to be a public record, and shall remain confidential and not to be disclosed to any third party without the express consent of the applicant, unless otherwise required by law. In the event the applicant does not provide this information,the City may conclusively presume that no denial of effective service exists. All of the information noted above shall be submitted to the City within 30 days of the filing of the Denial of Effective Service appeal unless an extension is granted by the Director. 3. The Denial of Effective Service appeal shall be considered concurrently with the Wireless Permit or CUP appeal hearing before the Planning Commission. Prior to the scheduling of the public hearing on the Wireless Permit or CUP appeal,the City Attorney shall be authorized to issue administrative subpoenas to compel production of such documents,testimony and other evidence relevant to the applicant's denial of effective service claims. 09-2009.002/73032 6 Ordinance No. 3934 G. Wireless Communication Facility Standards. The following standards shall apply to all wireless communication facilities: 1. Screening. All screening used in conjunction with a wall or roof mounted Wireless Antenna shall be compatible with the architecture of the building or other structure to which it is mounted, including color, texture and materials. All ground or utility mounted facilities shall be designed to blend into the surrounding environment, or architecturally integrated into a building or other concealing structure. 2. Equipment/Accessory Structures. All equipment associated with the operation of the Wireless Antenna, including but not limited to transmission cables, shall be screened in a manner that complies with the development standards of the zoning district in which such equipment is located and Section 230.76. Screening materials and support structures housing equipment shall be architecturally compatible with surrounding structures by duplicating materials and design in a manner as practical as possible. Chain link- fencing and barbed wire are prohibited. 3. General Provisions_ All Wireless Communication Facilities shall comply with the Huntington Beach Urban Design Guidelines. 4. Building Codes: To ensure the structural integrity of Wireless Communication Facilities, the owners of a Facility shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for facilities that are published by the Electronic Industries Association,as amended from time to time. 5. Co-Location: Co-location of ground mounted facilities shall be required where feasible whenever such a facility is proposed within 1,000 feet of any existing Wireless Antenna. 6. Federal and State Requirements: All Wireless Communication Facilities must meet or exceed current federal and state laws, standards and regulations of the FCC, and any other agency of the federal or state government with the authority to regulate Wireless Communication Facilities. 7. Interference: To eliminate interference, at all times, other than during the 24-hour cure period, the applicant shall comply with all FCC standards and regulations regarding interference and the assignment of the use of the radio frequency spectrum. The applicant shall not prevent the City of Huntington Beach or the countywide system from having.adequate spectrum capacity on the City's 800 MHz voice and data radio frequency systems. The applicant shall cease operation of any Wireless Antenna causing interference with the City's facilities immediately upon the expiration of the 24-hour cure period until the cause of the interference is eliminated. 8. Lighting_ All outside lighting shall be directed to prevent"spillage"onto adjacent properties,unless required by the FAA or other applicable authority,and shall be shown on the site plan and elevations. 9. Maintenance: All facilities and appurtenant equipment including landscaping shall be maintained to remain consistent with the original appearance of the Wireless Antenna. Ground mounted facilities shall be covered with anti-graffiti coating. 10. Monitoring: The applicant shall provide a copy of the lease agreement between the property owner and the applicant prior to the issuance of a building permit. 09-2009.002173032 7 Ordinance No. 3934 11. Signs: The Wireless Antenna shall not bear any signs or advertising devices other than owner identification, certification, warning, or other required seals of signage. (3568-9/02, 12. Landscaping_ Landscape planting, irrigation and hardscape improvements may be imposed depending on the location,the projected vehicular traffic,the impact on existing facilities and landscape areas, and the visibility of the proposed Wireless Antenna. Submittal of complete landscape and architectural plans for review and approval by the Directors of Public Works and Planning and Building Departments may be required. 13. Utility Agreement: If the proposed facility will require electrical power or any other utility services to the site, the applicant will be required to furnish the City's Real Estate Services Manager either a drafted utility franchise agreement between the City of Huntington Beach and the applicant to place those lines in the public right-of-way, or a written statement from the utility company that will be supplying the power or other services, that they accept all responsibility for those lines in the public right-of-way. H. Facilities in the Public Right-of-Way. Any Wireless Communication Facility to be placed over, within, on or beneath the public right-of-way shall comply with the Undergrounding Ordinance (Chapter 17.64 of HBMC). 1. Facility Removal. Wireless communication facilities affecting the public view and/or located in areas designated Water Recreation, Conservation, Parks and Shoreline, and Public Right of Ways shall be removed in its entirety within six (6)months of termination of use and the site restored to its natural state. J. Cessation of Operation. 1. Abandonment. Within thirty(30) calendar days of cessation of operations of any Wireless Communication Facility approved under this Section, the operator shall notify the Director in writing. The Wireless Antenna shall be deemed abandoned pursuant to the following sections unless: a. . The City has determined that the operator has resumed operation of the Wireless Communication Facility within six (6)months of the notice; or b. The City has received written notification of a transfer of the Wireless Communication Facility. 2. City Initiated Abandonment: A Wireless Antenna that is inoperative or unused for a period of six (6) continuous months shall be deemed abandoned. Written notice of the City's determination of abandonment shall be provided to the operator of the Wireless Antenna and the owner(s) of the premises upon which the antenna is located. Such notice may be delivered in person, or mailed to the address(es) stated on the permit application, and shall be deemed abandoned at the time delivered or placed in the mail. 3. Removal of Abandoned Wireless Antenna: The operator of the Wireless Antenna and the owner(s) of the property on which it is located, shall within thirty (30) calendar days after notice of abandonment is given either (1) remove the Wireless Antenna in its entirety and 09-2009.002/73032 8 Ordinance No. 3934 restore the premises,or(2)provide the Director with written objection to the City's determination of abandonment. a. Any such objection shall include evidence that the Wireless Antenna was in use during the relevant six- (6)month period and that it is presently operational. The Director shall review all evidence, determine whether or not the Facility was properly deemed abandoned, and provide the operator notice of its determination. b. At any time after thirty-one (31) calendar days following the notice of abandonment, or immediately following a notice of determination by the Director,if applicable, the City may remove the abandoned Wireless Antenna and/or repair any and all damage to the premises as necessary to be in compliance with applicable codes. The City may,but shall not be required to, store the removed Antenna(or any part thereof). The owner of the premises upon which the abandoned Antenna was located, and all prior operators of the Antenna, shall be jointly liable for the entire cost of such removal,repair, restoration and/or storage, and shall remit payment to the City promptly after demand thereof is made. The City may, in lieu of storing the removed Wireless Antenna, convert it to the City's use, sell it, or dispose of it in any manner deemed appropriate by the City. SECTION 2. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 5t:h day of March , 20 12 . Mayor ATTEST: APPROVED AS TO FORM: �).J A.., — --f YS 0- City Cler"k- JC' Attorney RE VIE ND APPROVED: INITIATE N A ROVED: lli 60K*ager Di ector o Planning and Building 09-2009.002/73032 9 Ord. No. 3934 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) - I, JOAN L. FLYNN,the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven, that the foregoing ordinance was read to said City Council at a regular meeting thereof held on February 6,2012, and was again read to said City Council at a regular meeting thereof held on March 5, 2012, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Dwyer, Hansen, Carchio, Bohr NOES: Shaw, Harper, Boardman ABSENT: None ABSTAIN: None I,Joan L,Flynn,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on March 15,2012. In accordance with the City Charter of said City Joan L.Flynan, Ci1y Clerk CV Clerk and ex-offici Jerk Senior DeputV City Clerk of the City Council of the City of Huntington Beach, California I CITY OF HUNTINGTON BEACH LEGAL NOTICE ORDINANCE NO.3934 Adopted by the City Council PROOF O F on MARCH 2012 "AN ORDINANCE OF THE CITY OF HUNTINGTON PUBLICATION BEACH AMENDING SEC- TION 230.96, OF THE• HUNTINGTON BEACH ZONING AND SUBDIVI- SION .ORDINANCE RE- LATING TO WIRELESS COMMUNICATION FA- STATE OF CALIFORNIA) STAFES." SYNOPSIS: STAFF RECOMMENDED CITY COUNCIL APPROVE SS. ZONING TEXTf 1 AMENDMENT NO.09-002' COUNTY OF ORANGE ) BY ADOPTING . ASEDi NANCE N0. 3934 BASEDi UPON THE FOLLOWING: 1. IT WILL.ESTABLIU THE CITY S DESIRED A PROVAL PROCESS AND I am a citizen of the United States and a REQUIREMENTS FORT WIRELESS COMMUNICA-' resident of the County of Los Angeles; I TION FACILITIES (WCF)sl ALLOWING- FOR IN= am over the age of eighteen years, and CREASED PUBLIS PAR- TICIPATION AND NOTIFI-j not a party to or interested in the notice CATION. 2. IT WILL CONTINUE.TOi published. I am a principal clerk of the ALLOW WCFs THROUOUTMOST OF THE CITY! HUNTINGTON BEACH WHILE PROTECTING THEI :.INDEPENDENT, which was adjudged.a COMMUNITY ANDSQUALITYI OF LIFE THROUGH THEI newspaper of general circulation on NEW PERMITTING AND September 29, 1961, case A6214, and ENTITLEMENT NOW REQUIRES AI CUP FOR ALL GROUND June 11, 1963, case A24831, for the AND UTILITY MOUNTED WCFs REGARDLESS OF City of Huntington Beach, County of LOCATION AND DESIGN. 3. IT WILL MAKE THE I .Orange and the State of 'California. REVIEW OF WCFs CON Attached to this Affidavit is a true and OTHERT RIOJECTST BY FOCUSING ON TRADI-1 complete copy as was printed and TIONAL CITY PLANNING f CONCERNS SUCH AS published on the following date(s): AESTHETICS, LAND USE COMPATIBILITY, AND CODE COMPLIANCE AND NOT ON NEED B Thursday, March 15, 2012 ONA GAP INSERVICEE..ED 4. IT WILL PROPERTY REQUIRE THE GAP IN SERVICE AND LEAST OB- TRUSIVE LOCATION REBY - certif (or declare) under penaltyVIEW CONSULT T EXPE IN RT Y \ 1 CASES WHEN ONLY AP- of perjury that the foregoing is true PLICANT ASSERTS FED- "ERAL L'AW PREEMPTION OF THE and correct. OF A WCF CITY S DENT 5. THE DESIGN.REVIEW REQUIREMENTS WILL BE CONSISTENT WITH EXIWTING PROVISIONS ON .THE HBZSO AND PROVIDE THE CITY Executed on March 22, 2012 GREATER AESTHETIC CONTROL. at Los Angeles, California ity PASSED C NDCouncil ADOPTEoD thethe City of Huntington Beach at a regular meet- ing held March 5, 2012 by the following roll call vote: AYES: Dwyer, Hansen, S.O,Bohr BOE NOES: Shaw, Harper, Boardman Signature ABSENTNN nee THE FULL TEXT OF THE ORDINANCE IS AVAIL- ABLE AN' THE CITY CLERK'S OFFICE. This ordinance Is effec- tive 30 days after adoption. CITY OF HUNTINGTON. BEACH 2000 MAIN STREET HUNTINGTON BEACH, 'CA 92648 714-536-5227 JOAN L.FLYNN,CITY CLERK Published H.B. Indepen- dent March 15,2012 __ i City ®f Huntington Beach 2000 Main Street 4 Huntington Beach, CA 92648 (714) 536-5227 4 www.huntingtonbeachea.gov �Ee=r� t90BrP � ® Office of the City Clerk Joan L. Flynn, City Clerk Notice of Action February 8, 2012 City of Huntington Beach Planning and Building Department 2000 Main Street Huntington Beach, CA 92648 Subject: Zoning Text Amendment (ZTA) No. 09-002 (Wireless Communication Facilities) Request: To amend Section 230.96 (Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance by revising the citywide permitting and entitlement process for wireless communication facilities (e.g. cell phone antennas and towers) as well as other provisions of the current ordinance. On Monday, February 6, 2012 the Huntington Beach City Council conducted a public hearing and approved ZTA No. 09-002 with findings for approval, and approved for introduction Ordinance No. 3934 (staff recommendation) to amend Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance relating to Wireless Communication Facilities. A copy of Ordinance No. 3934, ZTA 09-002 Findings for Approval, and Page 6 of the February 6, 2012 Action Agenda are enclosed. If you have any questions regarding this matter, please contact my office at (714) 536-5227. Sincerely, x :V 96 Joan L. Flynn, CIVIC City Clerk Encl. Copy of Ordinance 3934 ZTA 09-002 Findings for Approval Page 6 February 6, 2012 Action Agenda c: Scott Hess, Director of Planning and Building Ricky Ramos, Senior Planner Sister Cities: Anjo,Japan 4 Waitakere,New Zealand ORDINANCE NO. 3934 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING SECTION 230.96 OF THE HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE RELATING TO WIRELESS COMMUNICATION FACILITIES The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance is hereby amended to read as follows: 230.96 Wireless Communication Facilities A. Purpose. This Section of the Zoning Code is to protect public safety, general welfare, and quality of life by regulating the location, height and physical characteristics and provide for orderly and efficient placement of Wireless Communications Facilities in the City of Huntington Beach. Because of the potential negative aesthetic impacts of Wireless Communications Facilities, including visual blight and diminution of property value,the City endeavors to locate antennas within commercial, industrial and other non-residential zones, screen them from view, and encourage co-location with other Wireless Communication Facilities. However, the Federal Telecommunications Act, specifically 47 U.S.C. Section 332(c)(7),preempts local zoning where a Wireless Facility is necessary to remedy a significant gap in the Wireless Provider's service. Consequently,where the.City determines that the Facility does not satisfy City planning and zoning standards, the Wireless Provider may then choose to establish Federal preemption because (i) a significant gap in wireless coverage exists, and (ii) there is a lack of feasible alternative site locations. A myriad of factors are involved in determining if a gap is significant, such as: whether the gap affects a commuter highway; the nature and character of the area and the number of potential users affected by the alleged lack of service; whether the signal is weak or nonexistent, and whether the gap affects a commercial district. Consequently,the City will require scientific evidence from an expert in the field demonstrating the existence of a significant gap in service, and a lack of feasible alternative sites. The applicant will be required to pay for the cost of said expert opinion. B. Definitions. For the purpose of this Section,the following definitions for the following terms shall apply: l. Accessory Structure. Any structure or equipment that is to be located ancillary to an antenna or antennas in the establishment and operation of a Wireless Communication Facility. 2. Co-Location or Co-Located. The location or placement of multiple Wireless Communication Facilities which are either owned or operated by more than one service provider at a single location and mounted to a common supporting structure, wall or building. 09-2009.002/73032 1 Ordinance No. 3934 3. Completely Stealth. Any Wireless Communication Facility that has been designed to completely screen all aspects of the facility including appurtenances and equipment from public view. Examples of completely stealth facilities may include, but are not limited to, architecturally screened roof mounted antennas, fagade mounted antennas treated as architectural elements to blend in with the existing building, church steeples, fire towers, and flag poles and light standards of a typical diameter. 4. Ground Mounted Facility. Any wireless antenna that is affixed to a pole, tower or other freestanding structure that is specifically constructed for the purpose of supporting an antenna. 5. Microwave Communication. The transmission or reception of radio communication at frequencies of a microwave signal (generally, in the 3 GHz to 300 GHz frequency spectrum). 6. Modified Facility. An existing Wireless Communication Facility where the antennas and/or supporting structure are proposed to be altered in any way from their existing condition, including like-for-like replacement but excluding co-location. 7. Pre-existing Wireless Facility_. Any Wireless Communication Facility for which a building permit or conditional use permit has been properly issued prior to the effective date of this ordinance, including permitted wireless antennas that have not yet been constructed so long as such approval is current and not expired. 8. Public Right-of-Way The area across, along, beneath, in, on, over, under, upon, and within the dedicated public alleys, boulevards, courts, lanes,places, roads, sidewalks, streets, ways,private streets with public access easements within the City's boundaries, and City owned properties, as they now exist or hereafter will exist. 9. Roof Mounted. Any wireless antenna directly attached or affixed to the roof of an existing building, water tank,tower or structure other than a telecommunications tower. 10. Stealth Techniques. Any Wireless Communication Facility, including any appurtenances and equipment,which is designed to blend into the surrounding environment. Examples of Stealth Technique include,but are not limited to, monopalms/monopines. 11. Utility Mounted. Any wireless antenna mounted to an existing above-ground structure specifically designed and originally installed to support utilities such as but not limited to electrical power lines, cable television lines, telephone lines, non-commercial wireless service antennas,radio antennas, street lighting but not traffic signals, recreational Facility lighting, or any other utility which meets the purpose and intent of this definition. 12. Wall Mounted. Any wireless antenna mounted on any vertical or nearly vertical surface of a building or other existing structure that is not specifically constructed for the purpose of supporting an antenna (including the exterior walls of a building, an existing parapet, the side of a water tank, the face of a church steeple, or the side of a freestanding sign) such that the highest point of the antenna structure is at an elevation equal to or lower than the highest point of the surface on which it is mounted. 09-2009.002/73032 2 Ordinance No. 3934 13. Wireless Communication Facility or Facility or Wireless Antenna. An antenna structure and any appurtenant facilities or equipment that transmits electronic waves or is used for the transmission or receipt of signals that are used in connection with the provision of wireless communication service, including, but not limited to digital, cellular and radio service. C. Applicability. This ordinance shall apply to all Wireless Communication Facilities which are erected, located, placed or modified within the City of Huntington Beach. D. Exceptions. The following Wireless Communication Facilities shall be exempt from this Ordinance. 1. Any Facility, which is subject to a previously approved and valid entitlement,may be modified within the scope of the applicable permit without complying with these regulations. However, modifications outside the scope of the valid entitlement or any modification to an existing facility that does not have a previously approved and valid entitlement is subject to the requirements of this ordinance. 2. Any antenna structure that is one meter(39.37 inches) or less in diameter that is designed to receive direct broadcast satellite service, including direct-to-home satellite service for television purposes, as defined by Section 207 of the Telecommunication Act of 1996, Title 47 of the Code of Federal Regulations, and any interpretive decisions thereof. 3. Any antenna structure that is two meters (78.74 inches) or less in diameter located in commercial or industrial zones and is designed to transmit or receive radio communication by satellite antenna. 4. Any antenna structure that is one meter (39.37 inches) or 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. 5. Any antenna structure used by authorized amateur radio stations licensed by the FCC. E. Process to Install and Operate Wireless Communication Facilities. No Facility shall be installed anywhere in the City without first securing either a Wireless Permit or a Conditional Use Permit as required below. 1. Wireless Permit Application. The applicant shall apply to the Planning and Building Department for a Wireless Permit by submitting a completed Wireless Permit Application ("Application") and paying all required fees. The Application shall be in the form approved by the Director, and at a minimum shall provide the following information: a. Precise location of the Facility. b. Evidence that the Facility is compatible with the surrounding environment or that the facility is architecturally integrated into a structure. c. Evidence that the facility is screened or camouflaged by existing or proposed topography, vegetation, buildings or other structures as measured from beyond the boundaries of the site at eye level (six feet). 09-2009.002/73032 3 Ordinance No. 3934 d. Evidence that the massing and location of the proposed facility are consistent with surrounding structures and zoning districts. e. Evidence that no portion of the Facility will encroach over property lines. f. Property owner authorization or evidence of fee ownership of property where the Facility will be installed. In the case of City-owned property or any public right-of- way,the applicant shall provide a license, lease, franchise, or other similar agreement from the City to place any Facility over, within, on, or beneath City property or right- of-way. g. Locations of all other Wireless Antennas within 1,000 feet of a proposed ground mounted facility. Co-location of ground mounted facilities shall be required where feasible whenever such a facility is proposed within 1,000 feet of any existing Wireless Antenna. h. Any other relevant information as required by the Director of Planning and Building. The Planning and Building Department will initially review and determine if the Application is complete. The City may deem the Application incomplete and require re- submittal.if any of the above information is not provided. 2. Director Approval. Following submittal of a complete Application,the City will determine whether the Facility may be approved by the Director or whether a Conditional Use Permit or other entitlement is required. Wireless Permit applications will be processed based upon the location and type of antennas defined in herein. Although said classifications are assigned at project intake, a re-evaluation of antenna classifications may occur at any point in the process including at the time of review by the Director, Zoning Administrator, Planning Commission or City Council. A Facility not subject to any other discretionary approval may be administratively approved by the Director by issuing a Wireless Permit if it is: a. Co-located on an existing approved Wireless Facility, does not exceed the existing Wireless Facility heights, and employs Stealth Techniques such that the co-located Wireless Facility is compatible with surrounding buildings and land uses; or b. A modified Facility that complies with the base district height limit plus up to an additional 10 feet of height as permitted in Section 230.72 and compatible with surrounding buildings and land uses by incorporating stealth techniques; or c. A Facility that complies with the base district height limit plus up to an additional -10 feet of height as permitted in Section 230.72, is Completely Stealth, and is not ground or utility mounted. The Director may require conditions of approval of the Facility in order to minimize adverse health, safety and welfare impacts to the community. 09-2009.002/73032 4 The Director may require conditions of approval of the Facility in order to minimize adverse health, safety and welfare impacts to the community. A decision of the Director to grant a Wireless Permit shall become final ten (10) days following the date of the decision unless an appeal to the Planning Commission is filed as provided in Chapter 248 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO). The Director shall issue fmdings of approval that the Facility meets the above criteria and is not a detriment to the health, safety and welfare of the community. 3: Zoning Administrator An rp oval. In the event the Director determines that the applicant does not meet the requirements for Director approval of a Wireless Permit,then the applicant shall apply for a Conditional Use Permit(CUP) to the Zoning Administrator pursuant to Chapter 241 of the HBZSO. Notwithstanding any other provisions of the HBZSO, any new wireless facilities, excluding co-locations and modifications,proposed to be located within 1,200 feet of residential shall be required to obtain a CUP. CUP applications shall also include the same information required under subsection E.1. The Zoning Administrator may require, as a condition of approval of the CUP that the applicant minimize significant adverse impacts to the community and public visual resources by incorporating one or more of the following into project design and construction: a. Completely Stealth installations; b. Stealth Techniques; c. Co-location and locating Facilities within existing building envelopes; d.. Colorization or landscaping to minimize visual prominence; and/or e. Removal or replacement of Facilities that are obsolete. Further conditions of approval of a facility CUP may be imposed as provided in Chapter 241 of the HBZSO. The Zoning Administrator's decision may be appealed to the Planning Commission in accordance with Chapter 248 of the HBZSO. 4. Design Review. Design review shall be required for any Wireless Communication Facilities pursuant to the HBZSO as well as those located on public right-of-way and on or within 300 feet of a residential district or use in the City. Notwithstanding any other provisions of the HBZSO, design review is not required for Wireless Communication Facilities that may be approved by the Director pursuant to subsection E.2 (Director Approval) above and have all appurtenant facilities and equipment located underground or within an existing building or existing enclosure. F. Applicant MU Assert Federal Preemption At Time of Appeal To Planning Commission 1. If the decision on the Wireless Permit or Conditional Use Permit is appealed(either by applicant or an aggrieved party)to the Planning Commission, the Applicant may assert that Federal Law preempts the City from denying the application because denial would effectively prohibit Wireless Service. The applicant shall pay a Denial of Effective 09-2009.002/73032 5 Ordinance No. 3934 Facility, including, but not limited to, issues involving whether a significant gap in coverage exists. A Denial of Effective Service appeal must be submitted prior to the expiration of the appeal period for a Wireless Permit or Conditional Use Permit. 2. The Director shall establish the form of the Denial of Effective Service appeal. At a minimum, the Applicant shall provide the following information as part of its appeal: In order to prevail in establishing a significant gap in coverage claim the applicant shall establish at minimum the following based upon substantial evidence: a. Evidence demonstrating the existence and nature of a significant gap in service in the vicinity of the proposed Facility, including but not limited to whether the gap pertains to residential in-building, commercial in-building coverage, in-vehicle coverage, and/or outdoor coverage. b. Evidence demonstrating that the applicant has pursued other feasible sites for locating the Facility, but that they are unavailable on commercially practicable terms. c. Evidence demonstrating the radio frequency signal strength transmission requirements and objectives that the applicant has established for the Southern California region, and for the City of Huntington Beach. d. Radio frequency propagation maps demonstrating actual transmission levels in the vicinity of the proposed Facility site, and any alternative sites considered. e. Radio frequency drive tests demonstrating actual transmission levels in the vicinity of the proposed Facility site, and any alternative sites considered. f. Reports regarding the applicant's monthly volume of mobile telephone calls completed, not completed, dropped, handed-off, not handed-off, originated and not originated for the signal area to be covered by the proposed Facility. g. Any proprietary information disclosed to the city or the consultant is deemed not to be a public record, and shall remain confidential and not to be disclosed to any third party without the express consent of the applicant, unless otherwise required by law. In the event the applicant does not provide this information,the City may conclusively presume that no denial of effective service exists. All of the information noted above shall be submitted to the City within 30 days of the filing of the Denial of Effective Service appeal unless an extension is granted by the Director. 3. The Denial of Effective Service appeal shall be considered concurrently with the Wireless Permit or CUP appeal hearing before the Planning Commission. Prior to the scheduling of the public hearing on the Wireless Permit or CUP appeal, the City Attorney shall be authorized to issue administrative subpoenas to compel production of such documents, testimony and other evidence relevant to the applicant's denial of effective service claims. 09-2009.002/73032 6 Ordinance No. 3934 G. Wireless Communication Facility Standards. The following standards shall apply to all wireless communication facilities: 1. Screening. All screening used in conjunction with a wall or roof mounted Wireless Antenna shall be compatible with the architecture of the building or other structure to which it is mounted, including color,texture and materials. All ground or utility mounted facilities shall be designed to blend into the surrounding environment, or architecturally integrated into a building or other concealing structure. 2. Equipment/Accessory Structures. All equipment associated with the operation of the Wireless Antenna, including but not limited to transmission cables, shall be screened in a manner that complies with the development standards of the zoning district in which such equipment is located and Section 230.76. Screening materials and support structures housing equipment shall be architecturally compatible with surrounding structures by duplicating materials and design in a manner as practical as possible. Chain link- fencing and barbed wire are prohibited. 3. General Provisions. All Wireless Communication Facilities shall comply with the Huntington Beach Urban Design Guidelines. 4. Building Codes: To ensure the structural integrity of Wireless Communication Facilities, the owners of a Facility shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for facilities that are published by the Electronic Industries Association, as amended from time to time. 5. Co-Location: Co-location of ground mounted facilities shall be required where feasible whenever such a facility is proposed within 1,000 feet of any existing Wireless Antenna. 6. Federal and State Requirements: All Wireless Communication Facilities must meet or exceed current federal and state laws, standards and regulations of the FCC, and any other agency of the federal or state government with the authority to regulate Wireless Communication Facilities. 7. Interference: To eliminate interference, at all times, other than during the 24-hour cure period, the applicant shall comply with all FCC standards and regulations regarding interference and the assignment of the use of the radio frequency spectrum. The applicant shall not prevent the City of Huntington Beach or the countywide system from having adequate spectrum capacity on the City's 800 MHz voice and data radio frequency systems. The applicant shall cease operation of any Wireless Antenna causing interference with the City's facilities immediately upon the expiration of the 24-hour cure period until the cause of the interference is eliminated. 8. Lighting: All outside lighting shall be directed to prevent"spillage" onto adjacent properties, unless required by the FAA or other applicable authority, and shall be shown on the site plan and elevations. 9. Maintenance: All facilities and appurtenant equipment including landscaping shall be maintained to remain consistent with the original appearance of the Wireless Antenna. Ground mounted facilities shall be covered with anti-graffiti coating. 10. Monitoring: The applicant shall provide a copy of the lease agreement between the property owner and the applicant prior to the issuance of a building permit. 09-2009.002/73032 7 Ordinance No. 3934 11. Signs: The Wireless Antenna shall not bear any signs or advertising devices other than owner identification, certification, warning, or other required seals of signage. (3568-9/02, 12. Landscaping: Landscape planting, irrigation and hardscape improvements maybe imposed depending on the location, the projected vehicular traffic, the impact on existing facilities and landscape areas, and the visibility of the proposed Wireless Antenna. Submittal of complete landscape and architectural plans for review and approval by the Directors of Public Works and Planning and Building Departments may be required. 13. Utility Agreement: If the proposed facility will require electrical power or any other utility services to the site, the applicant will be required to famish the City's Real Estate Services Manager either a drafted utility franchise agreement between the City of Huntington Beach and the applicant to place those lines in the public right-of-way, or a written statement from the utility company that will be supplying the power or other services, that they accept all responsibility for those lines in the public right-of-way. H. Facilities in the Public Right-of-Way. Any Wireless Communication Facility to be placed over, within, on or beneath the public right-of-way shall comply with the Undergrounding Ordinance (Chapter 17.64 of HBMC). I. Facility Removal. Wireless communication facilities affecting the public view and/or located in areas designated Water Recreation, Conservation, Parks and Shoreline, and Public Right of Ways shall be removed in its entirety within six (6)months of termination of use and the site restored to its natural state. J. Cessation of Operation. 1. Abandonment. Within thirty (30) calendar days of cessation of operations of any Wireless Communication Facility approved under this Section, the operator shall notify the Director in writing. The Wireless Antenna shall be deemed abandoned pursuant to the following sections unless: a. The City has determined that the operator has resumed operation of the Wireless Communication Facility within six (6) months of the notice; or b. The City has received written notification of a transfer of the Wireless Communication Facility. 2. City Initiated Abandonment: A Wireless Antenna that is inoperative or unused for a period of six (6) continuous months shall be deemed abandoned. Written notice of the City's determination of abandonment shall be provided to the operator of the Wireless Antenna and the owner(s) of the premises upon which the antenna is located. Such notice may be delivered in person, or mailed to the address(es) stated on the permit application, and shall be deemed abandoned at the time delivered or placed in the mail. 3. Removal of Abandoned Wireless Antenna: The operator of the Wireless Antenna and the owner(s) of the property on which it is located, shall within thirty (30) calendar days after notice of abandonment is given either (1) remove the Wireless Antenna in its entirety and 09-2009.002/73032 8 Ordinance No. 3934 restore the premises, or(2) provide the Director with written objection to the City's determination of abandonment. a. Any such objection shall include evidence that the Wireless Antenna was in use during the relevant six- (6) month period and that it is presently operational. The Director shall review all evidence, determine whether or not the Facility was properly deemed abandoned, and provide the operator notice of its determination. b. At any time after thirty-one (31) calendar days following the notice of abandonment, or immediately following a notice of determination by the Director, if applicable,the City may remove the abandoned Wireless Antenna and/or repair any and all damage to the premises as necessary to be in compliance with applicable codes. The City may,but shall not be required to, store the removed Antenna(or any part thereof). The owner of the premises upon which the abandoned Antenna was located, and all prior operators of the Antenna, shall be jointly liable for the entire cost of such removal,repair, restoration and/or storage, and shall remit payment to the City promptly after demand thereof is made. The City may, in lieu of storing the removed Wireless Antenna, convert it to the City's use, sell it, or dispose of it in any manner deemed appropriate by the City. SECTION 2. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of , 20 Mayor ATTEST: APPROVED AS TO FORM: City Clerk Chy Attorney �� REVIE APPROVED: INITIATE AP ROVED: 11 60*ager DiYector of Planning and Building 09-2009.002n3032 9 FINDINGS FOR APPROVAL ZONING TEXT AMENDMENT NO. 09-002 FINDINGS FOR PROJECTS EXEMPT FROM CEQA: The City Council finds that the project will not have any significant effect on the environment and is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to City Council Resolution No. 4501, Class 20, which supplements CEQA because the request is a minor amendment to a zoning ordinance that does not change the development standards intensity or density. FINDINGS FOR APPROVAL -ZONING TEXT AMENDMENT NO. 09-002: 1. Zoning Text Amendment No. 09-002 to amend Section 230.96 (Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance is consistent with the goals, objectives, policies, general land uses and programs specified in the General Plan including: A. Land Use Element Policy LU 1.1.1: Establish incentives for the development of uses to support the needs and reflect the economic demands of City residents and visitors. Goal LU 2: Ensure that development is adequately served by transportation infrastructure, utility infrastructure, and public services. Goal LU 4: Achieve and maintain high quality architecture, landscape, and public open spaces in the City. Objective LU 9.2: Provide for the preservation of existing residential neighborhoods. S. Utilities Element Goal U 5: Maintain and expand service provision to City of Huntington Beach residences and businesses. Objective U 5.1: Ensure that adequate natural gas, telecommunication and electrical systems are provided. Policy U 5.1.1: Continue to work with service providers to maintain current levels of service and facilitate improved levels of service. C. Coastal Element Policy C 4.2.4: Wireless communication facilities shall be sited, to the maximum extent feasible, to minimize visual resource impacts. Minimization may be accomplished through one or more of the following techniques: co-locating antennas on one structure, stealth installations, locating facilities within existing building envelopes, or minimizing visual prominence through colorization or landscaping and removal of facilities that become obsolete. D. Economic Development Element Policy ED 2.3.1: Strive to reduce all discretionary permit and licensing processing time. The proposed ZTA will continue to allow WCFs in most zoning districts subject to City approval to service the needs of the residents, businesses, and visitors and continue to provide processing incentives for those facilities that meet certain development standards. It continues to encourage WCFs to use stealth techniques and requires all associated buildings or structures to be compatible with the surrounding environment. It will provide for the preservation of existing residential neighborhoods by elevating the approval process through a conditional use permit requirement for all ground mounted and utility mounted WCFs. 2. In the case of a general land use provision, the change proposed is compatible with the uses authorized in, and the standards prescribed for, the zoning district for which it is proposed. Zoning Text Amendment No. 09-002 will revise the citywide wireless communication facilities ordinance. It will not affect the zoning of any property or the allowed uses and development standards of any zoning district. 3. A community need is demonstrated for the change proposed. Zoning Text Amendment No. 09-002 will reflect the City's desired approval process and requirements for WCFs in consideration of maximizing the goals of the General Plan., 4. Its adoption will be in conformity with public convenience, general welfare and good zoning practice because Zoning Text Amendment No. 09-002 will continue to allow WCFs throughout most of the city while protecting the community's general welfare and quality of life through the new permitting and entitlement process. Impact Report (SCH#2011091022) for the Beach and Ellis Mixed Use Project." 10 Speakers Approved 5-2 (Shag, Boardman no) 11. Approve Zoning Text Amendment No. 09-002 (Wireless Communication Facilities) amending Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) by approving for introduction either Ordinance No. 3933 or 3934 Planning Commission Recommended Action: A) Annroeie Zoning T )d Amendment P.Q9 00 regoeiire a CUP to the , residential and expand the Go locatie nent for new qroLmd 1 1 B) Annre\Ie fer in4rerJ1lefien Ordinance No. 3933, "An Ordinance of the Gity of 1-I11n+ingten Beech Amending Seetion 230.96 of the I..111n+ineton Beech Zoning and Subdivision QFdinanee Relating to Wireless Communication FaGilities f0 Staff Recommended Action: A) Approve Zoning Text Amendment No. 09-002 and require a CUP to the Zoning Administrator for new ground and utility mounted (freestanding) wireless communication facilities only with findings for approval; and, B) Approve for introduction Ordinance No. 3934, "An Ordinance of the City of Huntington Beach Amending Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance Relating to Wireless Communication Facilities," as amended to revise language on Page 5, #4, "any"to "all." 6 Speakers;Approved 4-3 (Shaw, Harper, Boardman no) COUNCILMEMBER COMMENTS (Not Agendized) Harper, Dwyer, Hansen, Carchio, Bohr, Boardman reported. ADJOURNMENT- 10:06 PM The next regularly scheduled meeting is Tuesday, February 21, 2012, at 4:00 PM in Room B- 8, Civic Center, 2000 Main Street, Huntington Beach, California. INTERNET ACCESS TO CITY COUNCIL/PUBLIC FINANCING AUTHORITY AGENDA AND STAFF REPORT MATERIAL IS AVAILABLE PRIOR TO CITY COUNCIL MEETINGS AT http://Www.huntin-qtonbeachca.gov -6- City Council/PFA Meeting February 6, 2012 PP �-S. Xlesl ®llfi�b A R1}��8 1 '� /�7• � r S Council/Agency Meeting Held: 0 Deferred/Continued to: D'T r`X?PTo—b 41�-Zd�O/& 3TRF-P a,-caMMjW80i0A> Ap roved Co ditio all A rov d ❑ Dent t Clkles Sign re Council Meeting Date: February 6, 2012 Department ID Number: PL12-003 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Scott Hess, AICP, Director of Planning and Building SUBJECT: Approve Zoning Text Amendment No. 09-002 (Wireless Communication Facilities) amending Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) by approving for introduction either Ordinance No. 3933 or 3934 Statement of Issue: Transmitted for your consideration is a request by the City to amend Section 230.96 (Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) by revising the citywide permitting and entitlement process for wireless communication facilities (WCF) as well as other provisions of the current ordinance. The Planning Commission recommends approval with modifications to require a Conditional Use Permit (CUP) to the Zoning Administrator for all new wireless communication facilities that are located within 1,200 feet of residential and expand the co-location requirement for new ground mounted facilities to a 2,500 foot radius (Recommended Action — A). Staff recommends instead requiring a CUP to the Zoning Administrator for new ground and utility mounted (freestanding) wireless communication facilities only (Recommended Action — B). Financial Impact: Not applicable. Recommended Actions: A. PLANNING COMMISSION RECOMMENDATION: Motion to: 1. Approve Zoning Text Amendment No. 09-002 and require a CUP to the Zoning Administrator for all new wireless communication facilities, excluding co-locations and modifications, located within 1,200 feet of residential and expand the co- location requirement for new ground mounted facilities to a 2,500 foot radius with findings for approval (ATTACHMENT NO. 1); and, 2. Approve for introduction Ordinance No. 3933, "An Ordinance of the City of Huntington Beach Amending Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance Relating to Wireless Communication Facilities." (ATTACHMENT NO. 2). xB -269- Item 11. - 1 REQUEST FOR COUNCIL ACTION MEETING DATE: 2/6/2012 DEPARTMENT•ID NUMBER: PL12-003 B. STAFF RECOMMENDATION Motion to: 1. Approve Zoning Text Amendment No. 09-002 and require a CUP to the Zoning Administrator for new ground and utility mounted (freestanding) wireless communication facilities only with findings for approval (ATTACHMENT NO. 4); and, 2. Approve for introduction Ordinance No. 3934, "An Ordinance of the City of Huntington Beach Amending Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance Relating to Wireless Communication Facilities." (ATTACHMENT NO. 5). Alternative Action(s): The City Council may make the following alternative motion(s): 1. "Approve Zoning Text Amendment No. 09-002 with modifications (to require CUP for all new WCFs within 500 feet of a school site) and revised findings." 2. "Approve Zoning Text Amendment No. 09-002 with modifications (to prohibit all new WCFs on city-owned park land when adjacent to an elementary school) and revised findings." 3. "Approve Zoning Text Amendment No. 09-002 with modifications (to include Neighborhood Notification for all new WCFs, excluding co-locations and modifications, that are subject to Director approval only) and revised findings." 4. "Continue Zoning Text Amendment No. 09-002 and direct staff accordingly." 5. "Deny Zoning Text Amendment No. 09-002 with findings for denial." Analysis: A. PROJECT PROPOSAL: Applicant: City of Huntington Beach Location: Citywide Zoning Text Amendment (ZTA) No. 09-002 represents a request pursuant to Chapter 247 to amend Section 230.96 (Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) by revising the citywide permitting and entitlement process for wireless communication facilities as well as other provisions of the current ordinance. Item 11. - 2 xB -270- REQUEST FOR COUNCIL ACTION MEETING DATE: 2/6/2012 DEPARTMENT ID NUMBER: PL12-003 The most significant changes that ZTA No. 09-002 would implement as recommended by staff include: 1. A CUP (public hearing) requirement for ground or utility mounted (freestanding only) WCF in contrast to current code which permits them with a Wireless Permit and building permit only (no public hearing) if consistent with zoning standards (Section 230.96(E.3)); 2. A Wireless Permit will no longer be required for all WCFs. Instead a WCF will either require a Wireless Permit or a Conditional Use Permit (Section 230.96(E.1)); 3. Applicants will no longer have to demonstrate an existing gap in service and least obtrusive location for the WCF except as part of a Denial of Effective Service appeal (Section 230.96(F)); 4. A provision for a Denial of Effective Service appeal to allow an applicant to assert that Federal law preempts the City from denying an application because denial would effectively prohibit wireless service. The appeal fee will be used by the City to hire a consultant to review and verify if a proposed WCF is needed to fill an existing gap in service and if it is located in the least obtrusive location feasible so as to eliminate a gap in service (Section 230.96(F)); and 5. The requirements for Design Review have been revised (Section 230.96(E.4)). In addition, the following notable changes to the existing ordinance are also proposed: 1. New Purpose Section (Section 230.96(A)); 2. Added and revised various definitions (Section 230.96(B)); 3. Simplified Applicability Section (Section 230.96(C)); 4. Clarified Exceptions Section (Section 230.96(D)); 5. Additional revisions to Process to Install and Operate WCFs Section including (Section 230.96(E)); a. A requirement for co-location has been added. b. An additional 10 feet of height permitted beyond base zoning district maximum as outlined in Section 230.72 is now specified. 6. Revised WCF Standards Section by prohibiting chain link fencing for equipment enclosure, deleting a requirement to record the conditions on the property title, adding a co-location provision, retaining a portion of the interference provision, expanding the types of agreements necessary on City property, deleting most of the provisions regarding WCFs on public property which may be incorporated in the Municipal Code in the future, and incorporating other minor revisions throughout (Section 230.96(G)). The City Council initiated the ZTA to address community concerns regarding the permitting and entitlement process in the current ordinance. B. BACKGROUND: The City has been reviewing requests for WCFs for over 20 years. Due to the increasing number of requests for WCFs, in 1995 a policy was developed to clarify the procedures for establishing WCFs in the city. The policy allowed WCFs on private property in commercial, xB -271- Item 11. - 3 REQUEST FOR COUNCIL ACTION MEETING DATE: 2/6/2012 DEPARTMENT ID NUMBER: PL12-003 industrial, public-semipublic, open space-parks and recreation districts and in commercial and industrial areas of specific plans subject to additional provisions. WCFs that complied with the zoning code development standards and were screened from view or were greater than 300 feet from a residential zoning district if freestanding were allowed without a CUP. WCFs that were not screened from view, freestanding and within 300 feet of a residential zoning district, or exceeded the height limit for the base zoning district required a CUP. In 2002 the City adopted a WCF ordinance that codified the previous policy and streamlined the approval process by allowing proposed WCFs that complied with code and provided screening to be allowed by building permit only and no CUP. In 2007 the City revised the WCF ordinance by establishing a Wireless Permit application process that requires applicants to demonstrate that a proposed WCF is located in the least obtrusive location feasible so as to eliminate a gap in service. In April 2009 the City Council held an emergency meeting regarding a WCF at Harbour View Park. At that meeting the City Council: ■ Directed staff to prepare a ZTA to address the permitting and entitlements of WCFs located within 500 feet of school sites and to require a CUP at a fully noticed public hearing; and ® Requested that staff analyze prohibiting WCFs on city-owned park land that is adjacent to an elementary school. Staff commenced the ZTA upon receiving Council's direction in 2009 but has been delayed due to pending litigation regarding WCFs. C. PLANNING COMMISSION MEETING AND RECOMMENDATION: The Planning Commission held a public hearing on the request on December 13, 2011 and recommended approval to the City Council with the following modifications in lieu of the staff recommendation to provide more protection for residents: 1. Require a CUP to the Zoning Administrator for all new wireless communication facilities (excluding co-locations and modifications) located within 1,200 feet of residential; and 2. Expand the co-location requirement for new ground mounted facilities from 1,000 feet to a 2,500 feet radius. There were eight speakers at the hearing. Seven of the speakers felt that the staff recommendations do not provide enough protection for residents. They do not want cell sites near sensitive areas such as residential, parks, or schools and opposed any administrative approval of cell sites. In addition, they favored continuing to require gap in service and least obtrusive location analysis in the first instance rather than only on appeal to the Planning Commission as recommended by staff to provide the City with a basis for denying unneeded cell sites. They also favored increasing the radius for co-location. One speaker representing Verizon expressed concerns about the additional CUP requirements, open-ended CUP requirements, and franchise requirements for use of the public right-of-way. Item 11. - 4 xB -272- REQUEST FOR COUNCIL ACTION MEETING DATE: 2/6/2012 DEPARTMENT ID NUMBER: PL12-003 Planning Commission Action on December 13, 2011: The straw vote motion made by Bixby, seconded by Peterson, to require Neighborhood Notification for all new wireless communication facilities proposed within 500 feet of residential that are subject to Director approval only was replaced by substitute motion below. The substitute straw vote motion made by Farley, seconded by Shier-Burnett, to require a conditional use permit to the Zoning Administrator for all new wireless communication facilities within 1,200 feet of residential carried by the following vote: AYES: Shier-Burnett, Peterson, Farley, Bixby, Ryan NOES: Delgleize ABSENT: Mantini ABSTAIN: None MOTION PASSED The straw vote motion made by Bixby, seconded by Farley, to expand the co-location requirement for new ground mounted facilities to a 2,500 foot radius carried by the following vote: AYES: Shier-Burnett, Farley, Bixby, Ryan NOES: Peterson, Delgleize ABSENT: Mantini ABSTAIN: None MOTION PASSED The straw vote motion made by Farley to require a gap in service and least obtrusive location analysis as part of conditional use permit applications for all new wireless communication facilities within 1,200 feet of residential was not seconded. The motion made by Shier-Burnett, seconded by Ryan, to approve Zoning Text Amendment No. 09-002 with modifications and findings (Attachment No. 1) and forward the draft ordinance (Attachment No. 2) to the City Council for adoption carried by the following vote: AYES: Shier-Burnett, Peterson, Delgleize, Farley, Bixby, Ryan NOES: None ABSENT: Mantini ABSTAIN: None MOTION PASSED HB -273- Item 11. - 5 REQUEST FOR COUNCIL ACTION MEETING DATE: 2/6/2012 DEPARTMENT ID NUMBER: PL12-003 D. STAFF ANALYSIS AND RECOMMENDATION: The primary planning issue related to the request pertains to the appropriate approval process and requirements for WCFs throughout the city in consideration of maximizing the goals of the General Plan. The following analysis addresses the major revisions recommended by staff to the ordinance. CUP Requirement For All Ground and Utility Mounted (Freestanding) WCFs The first major revision to the ordinance is a new requirement for a CUP for all ground and utility mounted (freestanding) WCFs regardless of location or design. Recent WCF proposals that have generated public concern at Harbour View Park, Bolsa View Park, and Community United Methodist Church have all involved monotree designs which are ground mounted WCFs designed to replicate a tree. Freestanding designs such as ground mounted WCFs are often not fully screened from view in comparison to designs such as roof and wall mounted WCFs. Because the existing ordinance allows ground mounted WCFs that are stealth (e.g. monotree) in non-residential zones with Director approval of a Wireless Permit (no public hearing), it is common to see these WCFs built adjacent to residential areas and schools. To address the concern about the current approval process, staff is recommending that ground and utility mounted (freestanding) WCFs obtain a CUP. The CUP process will provide the City discretion to review land use concerns such as aesthetics and neighborhood compatibility with input from the community at a public hearing. A CUP would not be required for completely stealth design within an existing building. The table below provides a comparison of the approval process in the existing and the draft wireless ordinance. In addition, flow charts for the existing and draft ordinance are also provided as Attachment 9 to the staff report. Wireless Permit (WP) and Conditional Use Permit (CUP) Requirements WCF Type Existing Ordinance Proposed Ordinance 1. Co-located WCF Permitted in Residential + Non- No change. - Existing height Residential Zones by WP only. - Stealth design for co-located WCF 2. Modified WCF No change. - Height complies - Stealth design 3. New WCF Similar except CUP required if - Height complies new ground or utility mounted - Completely Stealth design WCF. 4. New ground or utility mounted Permitted in Residential Zones CUP required if new ground or WCF by CUP. utility mounted WCF. - Height complies - Stealth design Permitted in Non-Residential Zones by WP only. Notes: 1. Any WCF with a valid entitlement may be modified within the scope of the entitlement without compliance with WCF ordinance. 2. If a WCF does not meet the requirements for approval of a WP, then a CUP is required. Item 11. - 6 HB -274- REQUEST FOR COUNCIL ACTION MEETING DATE: 2/6/2012 DEPARTMENT 1D NUMBER: PL12-003 City Council gave direction to address the permitting and entitlement of WCFs within 500 feet of school sites and to require a CUP at a fully noticed public hearing and also requested that staff analyze prohibiting WCFs on city-owned park land that is adjacent to an elementary school (Alternative Actions 1 and 2). Staff's recommendation is to take a citywide approach by requiring a CUP for ground and utility mounted (freestanding) WCFs regardless of location or design rather than just requiring a CUP for all WCFs proposed within 500 feet of schools. In addition, staff's recommendation does not involve an outright prohibition to avoid a conflict with Federal law. The staff recommendation allows public input at a noticed public hearing on the CUP before action can be taken on a proposed ground or utility mounted WCF. Alternatively, the City could choose to retain the current Wireless Permit process (i.e. Director approval) but include Neighborhood Notification, which would provide notification of a proposed WCF to property owners and tenants within 300 feet of the property where the WCF is proposed prior to the Director's action (Alternative Action 3). The Director's action on the Wireless Permit may then be appealed to Planning Commission by anyone who disagrees with the decision. The appeal to Planning Commission would result in a noticed public hearing. The alternative of requiring Neighborhood Notification instead of a CUP would still offer the protection of a public hearing upon appeal of the Director's action on the Wireless Permit without requiring a CUP for all ground and utility mounted WCFs. This would allow proposed WCFs that do not generate any controversy to continue to have a streamlined approval process while those that generate public concern will likely be appealed to the Planning Commission. Staff does not support the Planning Commission's recommendation to require a CUP to the Zoning Administrator for all new WCFs located within 1,200 feet of residential. In discussions with the City Attorney's Office, there does not appear to be a land use rationale for denial of completely stealth designs that are proposed on buildings and not visible. In addition, the proposed distance of 1,200 feet from residential would include nearly the entire city except for a few areas such as the middle of the industrial areas along Gothard and in the northern part of the city. Wireless Permit The second major revision to the ordinance is that a Wireless Permit will no longer be required for all WCFs. The Wireless Permit will only be required where a CUP is not required. Under the existing ordinance, the Wireless Permit application is the time when staff reviews the applicant's information regarding why the WCF is needed to fill an existing gap in service and is located in the least obtrusive location. If staff determines that the WCF cannot qualify for Director approval then a CUP is required. This revision will improve the process by removing what is now an unnecessary step of applying for a Wireless Permit only to be informed that a CUP is required. This change is particularly relevant since the proposed ordinance also changes the requirement to demonstrate that the WCF is necessary to fill an existing gap in service and is in the least obtrusive location to only cases when an appeal is filed to the Planning Commission as further explained below. HB -275- Item 11. - 7 REQUEST FOR COUNCIL ACTION MEETING DATE: 2/6/2012 DEPARTMENT ID NUMBER: PL12-003 Gap In Service and Least Obtrusive Location The third major revision is that an analysis to demonstrate that a WCF is needed to fill an existing gap in service and is located in the least obtrusive location will no longer be necessary. An in-depth review of a gap in service and least obtrusive location is a very complex review involving a variety of factors that require scientific evidence from an expert in the field. The proposed ordinance will focus the City's review of Wireless Permit and CUP applications to the traditional city planning concerns such as aesthetics, land use compatibility, and code compliance while no longer considering whether a proposed WCF is needed due to a gap in service. This approach is the same one taken by the City when reviewing CUPS for other projects where the need for the project is not a factor in the approval or denial. The gap in service and least obtrusive location review will now only occur if a Denial of Effective Service appeal is filed as explained in the next section below. Federal law does not require or suggest that the City must require a significant gap in service and least obtrusive location analysis in order to apply for a permit to install a WCF. Instead, the law provides the significant gap and least obtrusive analysis is relevant if the applicant intends to argue that Federal law preempts the City from denying an application. Federal and State law require that the City must have a valid zoning and land use rational for denying a proposed WCF permit (as well as other land use permits); denying an application because an applicant cannot demonstrate a gap in coverage is without any rational land use basis. Denial of Effective Service Appeal The fourth major revision to the ordinance is the addition of a provision for a Denial of Effective Service appeal to allow an applicant to justify that Federal law preempts the City from denying an application because denial would effectively prohibit wireless service. The Denial of Effective Service appeal may be filed by the applicant if the decision on the Wireless Permit or CUP is appealed either by the applicant or an aggrieved party. A separate appeal fee will be charged and be used by the City to hire a consultant to review and verify if a proposed WCF is needed to fill an existing gap in service and if it is located in the least obtrusive location feasible so as to eliminate a gap in service. Design Review The fifth major revision to the ordinance involves primarily updating the requirements for Design Review to match the existing provisions in the HBZSO. As shown in the table below, similar to the current ordinance, the proposed ordinance does not require Design Review for WCF designs that qualify for Director approval. However, under the proposed ordinance, this exemption from Design Review would now only apply if any associated equipment is located underground or within an existing building or existing enclosure to provide the City greater aesthetic control. Item 11. - 8 xB -276- REQUEST FOR COUNCIL ACTION MEETING DATE: 2/6/2012 DEPARTMENT ID NUMBER: PL12-003 Design Review Requirements WCF Type Existing Ordinance Proposed Ordinance 1. Co-located WCF Design Review required only if Similar except: - Existing height CUP required in the following - Stealth design for co-located locations: 1. Added WCFs in/abutting/ WCF adjoining City facilities; 2. Modified WCF 1. Redevelopment areas; 2. Added WCFs in/abutting/ - Height complies 2. Public right-of-way; adjoining OS-PR and OS-S - Stealth design 3. OS-PR (Open Space— Parks (Open Space—Shoreline) 3. New WCF and Recreation) zone; zones; - Height complies 4. PS (Public-Semipublic) zone; 3. Added WCFs abutting/ - Completely Stealth design 5. Specific Plans; adjoining General Plan primary 4. New ground or utility mounted 6. On or within 300 ft. of and secondary entry nodes; WCF residential district; and 4. Added on or within 300 ft. of - Height complies 7. Areas designated by City residential use; and - Stealth design Council. No Design Review required if No Design Review required if only a WP is required. only a WP is required and equipment located underground or within an existing building or existing enclosure. E. SUMMARY: Staff recommends the City Council approve Zoning Text Amendment No. 09-002 based upon the following: ■ It will establish the City's desired approval process and requirements for WCFs allowing for increased public participation and notification. ® It will continue to allow WCFs throughout most of the city while protecting the community's general welfare and quality of life through the new permitting and entitlement process which now requires a CUP for all ground and utility mounted WCFs regardless of location and design. ® It will make the review of WCFs consistent with that of other projects by focusing on traditional city planning concerns such as aesthetics, land use compatibility, and code compliance and not on need based on a gap in service. ■ It will properly require the gap in service and least obtrusive location review by an expert consultant only in cases when the applicant asserts Federal law preemption of the City's denial of a WCF. • The Design Review requirements will be consistent with existing provisions on the HBZSO and provide the City greater aesthetic control. Environmental Status: ZTA No. 09-002 is categorically exempt pursuant to City Council Resolution No. 4501, Class 20, which supplements the California Environmental Quality Act because the request is an amendment to a zoning ordinance that does not change the development standards intensity or density. Strategic Plan Goal: Enhance Economic Development xB -277- Item 11. - 9 REQUEST FOR COUNCIL ACTION MEETING DATE: 2/6/2012 DEPARTMENT ID NUMBER: PL12-003 Attachments: 1. Suggested Findings for Approval —ZTA No. 09-002 (Planning Commission Recommendation) 2. Ordinance No. 3933, "An Ordinance of the City of Huntington Beach Amending Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance Relating to Wireless Communication Facilities" Planning Commission Recommendation 3. Legislative Draft HBZSO Section 230.96 (January 2012) (Planning Commission Recommendation 4. Suggested Findings for Approval —ZTA No. 09-002 (Staff Recommendation) 5. Ordinance No. 3934, "An Ordinance of the City of Huntington Beach Amending Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance Relating to Wireless Communication Facilities" Staff Recommendation 6. Legislative Draft HBZSO Section 230.96 (December 2011) (Staff Recommendation) 7. Proposed HBZSO Section 230.96 with staff annotated changes) 8. Existing HBZSO Section 230.96 with staff annotated changes 9. Exi.sting and Draft Ordinance Flow Charts Dated December 6, 2011 10. Examples of WCF Designs Non-Stealth, Stealth, Completely Stealth 11. City Attorne 's Response to Wireless Industry Comments Dated November 14, 2011 12. Comment Letters and Presentations T-Mobile/Martin L. Fineman, September 12, 2011 Verizon/Sarah L. Burbidge, September 12, 2011 NextG/Joe Milone, September 12, 2011 California Wireless Association/Sean Scully, September 12, 2011 Wireless Infrastructure Association (PCIA), November 2, 2011 Dianne Larson, November 8, 2011; November 22, 2011; and December 13, 2011 Don McFarland, November 8, 2011 League of CA Cities, Challenges and Solutions to Managing Quality Cell Service, November 8, 2011 Dana Drake, November 22, 2011 Gay and Mark Infanti, December 2, 2011 and December 13, 2011 Jennie Bolotin, December 13, 2011 Ron Passmore, December 12, 2011 and December 17, 2011 Lori Genzano-Burrett, April 11, 2011 13. Planning Commission Staff Report dated December 13, 2011 14. PowerPoint Item 11. - 10 xB -278- ATTACHMENT #1 PLANNING COMMISSION SUGGESTED FINDINGS FOR APPROVAL ZONING TEXT AMENDMENT NO. 09-002 FINDINGS FOR PROJECTS EXEMPT FROM CEQA: The City Council finds that the project will not have any significant effect on the environment and is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to City Council Resolution No. 4501, Class 20, which supplements CEQA because the request is a minor amendment to a zoning ordinance that does not change the development standards intensity or density. FINDINGS FOR APPROVAL -ZONING TEXT AMENDMENT NO. 09-002: 1. Zoning Text Amendment No. 09-002 to amend Section 230.96 (Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance is consistent with the goals, objectives, policies, general land uses and programs specified in the General Plan including: A. Land Use Element Policy LU 1.1.1: Establish incentives for the development of uses to support the needs and reflect the economic demands of City residents and visitors. Goal LU 2: Ensure that development is adequately served by transportation infrastructure, utility infrastructure, and public services. Goal LU 4: Achieve and maintain high quality architecture, landscape, and public open spaces in the City. Obiective LU 9.2: Provide for the preservation of existing residential neighborhoods. B. Utilities Element Goal U 5: Maintain and expand service provision to City of Huntington Beach residences and businesses. Obiective U 5.1: Ensure that adequate natural gas, telecommunication and electrical systems are provided. Policy U 5.1.1: Continue to work with service providers to maintain current levels of service and facilitate improved levels of service. C. Coastal Element Policy C 4.2.4: Wireless communication facilities shall be sited, to the maximum extent feasible, to minimize visual resource impacts. Minimization may be accomplished through one or more of the following techniques: co-locating antennas on one structure, stealth installations, locating facilities within existing building envelopes, or minimizing Item 11. - 12 HB -280- visual prominence through colorization or landscaping and removal of facilities that become obsolete. D. Economic Development Element Policy ED 2.3.1: Strive to reduce all discretionary permit and licensing processing time. The proposed ZTA will continue to allow WCFs in most zoning districts subject to City approval to service the needs of the residents, businesses, and visitors and continue to provide processing incentives for those facilities that meet certain development standards. It continues to encourage WCFs to use stealth techniques and requires all associated buildings or structures to be compatible with the surrounding environment. It will provide for the preservation of existing residential neighborhoods by requiring a conditional use permit for all new WCFs proposed within 1,200 feet of residential areas and requiring co-location of all new ground mounted WCFs onto an existing facility located within 2,500 ft. if feasible. 2. In the case of a general land use provision, the change proposed is compatible with the uses authorized in, and the standards prescribed for, the zoning district for which it is proposed. Zoning Text Amendment No. 09-002 will revise the citywide wireless communication facilities ordinance. It will not affect the zoning of any property or the allowed uses and development standards of any zoning district. 3. A community need is demonstrated for the change proposed. Zoning Text Amendment No. 09-002 will reflect the City's desired approval process and requirements for WCFs in consideration of maximizing the goals of the General Plan. 4. Its adoption will be in conformity with public convenience, general welfare and good zoning practice because Zoning Text Amendment No. 09-002 will continue to allow WCFs throughout most of the city while protecting the community's general welfare and quality of life through the new permitting and entitlement process. xB -281- Item 11. - 13 ATTACHMENT #2 \ d ORDINANCENO. '1933 ,1 L AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING SECTION 230.96 OF THE HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE RELATING TO WIRELESS COMMUNICATION FACILITIES The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance is hereby amended to read as follows: 230.96 Wireless Communication Facilities A. Purpose. This Section of the Zoning Code is to protect public safety, general welfare, and quality of life by regulating the location,height and physical characteristics and provide for orderly and efficient placement of Wireless Communications Facilities in the City of Huntington Beach. Because of the potential negative aesthetic impacts of Wireless Communications Facilities, including visual blight and diminution of property value,the City endeavors to locate antennas within commercial,industrial and other non-residential zones, screen them from view, and encourage co-location with other Wireless Communication Facilities. However, the Federal Telecommunications Act, specifically 47 U.S.C. Section 332(c)(7),preempts local zoning where a Wireless Facility is necessary to remedy a significant gap in the Wireless Provider's service. Consequently,where the City determines that the Facility does not satisfy City planning and zoning standards,the Wireless Provider may then choose to establish Federal preemption because (i) a significant gap in wireless coverage exists, and(ii) there is a lack of feasible alternative site locations. A myriad of factors are involved in determining if a gap is significant, such as: whether the gap affects a commuter highway; the nature and character of the area and the number of potential users affected by the alleged lack of service; whether the signal is weak or nonexistent, and whether the gap affects a commercial district. Consequently,the City will require scientific evidence from an expert in the field demonstrating the existence of a significant gap in service, and a lack of feasible alternative sites. The applicant will be required to pay for the cost of said expert opinion. B. Definitions. For the purpose of this Section,the following definitions for the following terms shall apply: 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 or placement of multiple Wireless Communication Facilities which are either owned or operated by more than one service provider at a single location and mounted to a common supporting structure,wall or building. 09-2009.002/73032 HB -283- Item 11. - 15 Ordinance No. 3933 3. Completely Stealth. Any Wireless Communication Facility that has been designed to completely screen all aspects of the facility including appurtenances and equipment from public view. Examples of completely stealth facilities may include,but are not limited to, architecturally screened roof mounted antennas, fagade mounted antennas treated as architectural elements to blend in with the existing building, church steeples, fire towers, and flag poles and light standards of a typical diameter. 4. Ground Mounted Facility. Any wireless antenna that is affixed to a pole, tower or other freestanding structure that is specifically constructed for the purpose of supporting an antenna. S. Microwave Communication. The transmission or reception of radio communication at frequencies of a microwave signal (generally, in the 3 GHz to 300 GHz frequency spectrum). 6. Modified Facility. An existing Wireless Communication Facility where the antennas and/or supporting structure are proposed to be altered in any way from their existing condition, including like-for-like replacement but excluding co-location. 7. Pre-existing Wireless Facility. Any Wireless Communication Facility for which a building permit or conditional use permit has been properly issued prior to the effective date of this ordinance,including permitted wireless antennas that have not yet been constructed so long as such approval is current and not expired. 8. Public Right-of-Way The area across, along, beneath, in, on, over,under, upon, and within the dedicated public alleys, boulevards, courts, lanes,places, roads, sidewalks, streets, ways,private streets with public access easements within the City's boundaries, and City owned properties, as they now exist or hereafter will exist. 9. Roof Mounted. Any wireless antenna directly attached or affixed to the roof of an existing building,water tank,tower or structure other than a telecommunications tower. 10. Stealth Techniques. Any Wireless Communication Facility,including any appurtenances and equipment,which is designed to blend into the surrounding environment. Examples of Stealth Technique include,but are not limited to,monopalms/monopines. 11. Utility Mounted. Any wireless antenna mounted to an existing above-ground structure specifically designed and originally installed to support utilities such as but not limited to electrical power lines, cable television lines,telephone lines, non-commercial wireless service antennas,radio antennas, street lighting but not traffic signals,recreational Facility lighting, or any other utility which meets the purpose and intent of this definition. 12. Wall Mounted. Any wireless antenna mounted on any vertical or nearly vertical surface of a building or other existing structure that is not specifically constructed for the purpose of supporting an antenna(including the exterior walls of a building, an existing parapet, the side of a water tank,the face of a church steeple, or the side of a freestanding sign) such that the highest point of the antenna structure is at an elevation equal to or lower than the highest point of the surface on which it is mounted. 09-2009.002/73032 2 Item 11. - 16 HB -284- Ordinance No. 3933 13. Wireless Communication Facility or Facility or Wireless Antenna. An antenna structure and any appurtenant facilities or equipment that transmits electronic waves or is used for the transmission or receipt of signals that are used in connection with the provision of wireless communication service,including,but not limited to digital, cellular and radio service. C. Applicability. This ordinance shall apply to all Wireless Communication Facilities which are erected, located,placed or modified within the City of Huntington Beach. D. Exceptions. The following Wireless Communication Facilities shall be exempt from this Ordinance. 1. Any Facility,which is subject to a previously approved and valid entitlement,may be modified within the scope of the applicable permit without complying with these regulations. However, modifications outside the scope of the valid entitlement or any modification to an existing facility that does not have a previously approved and valid entitlement is subject to the requirements of this ordinance. 2. Any antenna structure that is one meter(39.37 inches) or less in diameter that is designed to receive direct broadcast satellite service,including direct-to-home satellite service for television purposes, as defined by Section 207 of the Telecommunication Act of 1996, Title 47 of the Code of Federal Regulations, and any interpretive decisions thereof. 3. Any antenna structure that is two meters (78.74 inches) or less in diameter located in commercial or industrial zones and is designed to transmit or receive radio communication by satellite antenna. 4. Any antenna structure that is one meter(39.37 inches)or 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. 5. Any antenna structure used by authorized amateur radio stations licensed by the FCC. E. Process to Install and Operate Wireless Communication Facilities. No Facility shall be installed anywhere in the City without first securing either a Wireless Permit or a Conditional Use Permit as required below. 1. Wireless Permit Application. The applicant shall apply to the Planning and Building Department for a Wireless Permit by submitting a completed Wireless Permit Application ("Application") and paying all required fees. The Application shall be in the form approved by the Director, and at a minimum shall provide the following information: a. Precise location of the Facility. b. Evidence that the Facility is compatible with the surrounding environment or that the facility is architecturally integrated into a structure. c. Evidence that the facility is screened or camouflaged by existing or proposed topography,vegetation,buildings or other structures as measured from beyond the boundaries of the site at eye level (six feet). IJ 09-2009.002/73032 3 J Item 11. - 17 HB -285- i_� . <� f Ordinance No. 3933 d. Evidence that the massing and location of the proposed facility are consistent with surrounding structures and zoning districts. e. Evidence that no portion of the Facility will encroach over property lines. f. Property owner authorization or evidence of fee ownership of property where the Facility will be installed. In the case of City-owned property or any public right-of- way, the applicant shall provide a license, lease, franchise, or other similar agreement from the City to place any Facility over, within, on, or beneath City property or right- of-way. g. Locations of all other Wireless Antennas within 2,500 feet of a proposed ground mounted facility. Co-location of ground mounted facilities shall be required where feasible whenever such a facility is proposed within 2,500 feet of any existing Wireless Antenna. h. Any other relevant information as required by the Director of Planning and Building., The Planning and Building Department will initially review and determine if the Application is complete. The City may deem the Application incomplete and require re- submittal if any of the above information is not provided. 2. Director Ap roval. Following submittal of a complete Application,the City will determine whether the Facility may be approved by the Director or whether a Conditional Use Permit or other entitlement is required. Wireless Permit applications will be processed based upon the location and type of antennas defined in herein. Although said classifications are assigned at project intake, a re-evaluation of antenna classifications may occur at any point in the process including at the time of review by the Director, Zoning Administrator, Planning Commission or City Council. A Facility not subject to any other discretionary approval may be administratively approved by the Director by issuing a Wireless Permit if it is: a. Co-located on an existing approved Wireless Facility, does not exceed the existing Wireless Facility heights, and employs Stealth Techniques such that the co-located Wireless Facility is compatible with surrounding buildings and land uses; or b. A modified Facility that complies with the base district height limit plus up to an additional 10 feet of height as permitted in Section 230.72 and compatible with surrounding buildings and land uses by incorporating stealth techniques; or c. A Facility that complies with the base district height limit plus up to an additional 10 feet of height as permitted in Section 230.72, is proposed to be located more than 1,200 feet from residential, and is either Completely Stealth or Stealth. 09-2009.002/73032 4 Item 11. - 18 HB -286- Ordinance No. 3933 The Director may require conditions of approval of the Facility in order to minimize adverse health, safety and welfare impacts to the community. A decision of the Director to grant a Wireless Permit shall become final ten(10) days following the date of the decision unless an appeal to the Planning Commission is filed as provided in Chapter 248 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO). The Director shall issue findings of approval that the Facility meets the above criteria and is not a detriment to the health, safety and welfare of the community. 3. Zoning Administrator Approval. In the event the Director determines that the applicant does not meet the requirements for Director approval of a Wireless Permit,then the applicant shall apply for a Conditional Use Permit(CUP)to the Zoning Administrator pursuant to Chapter 241 of the HBZSO. Notwithstanding any other provisions of the HBZSO, any new wireless facilities, excluding co-locations and modifications,proposed to be located within 1,200 feet of residential shall be required to obtain a CUP. CUP applications shall also include the same information required under subsection E.1. The Zoning Administrator may require, as a condition of approval of the CUP that the applicant minimize significant adverse impacts to the community and public visual resources by incorporating one or more of the following into project design and construction: a. Completely Stealth installations; b. Stealth Techniques; = r - c. Co-location and locating Facilities within existing building envelopes; f d. Colorization or landscaping to minimize visual prominence; and/or e. Removal or replacement of Facilities that are obsolete. Further conditions of approval of a facility CUP may be imposed as provided in Chapter 241 of the HBZSO. The Zoning Administrator's decision may be appealed to the Planning Commission in accordance with Chapter 248 of the HBZSO. 4. Design Review. Design review shall be required for any Wireless Communication Facilities pursuant to the HBZSO as well as those located on public right-of-way and on or within 300 feet of a residential district or use in the City. Notwithstanding any other provisions of the HBZSO, design review is not required for Wireless Communication Facilities that may be approved by the Director pursuant to subsection E.2 (Director Approval) above and have any appurtenant facilities and equipment located underground or within an existing building or existing enclosure. F. Applicant MU Assert Federal Preemption At Time of Appeal To Planning Commission. 1. If the decision on the Wireless Permit or Conditional Use Permit is appealed(either by applicant or an aggrieved party)to the Planning Commission, the Applicant may assert that Federal Law preempts the City from denying the application because denial would effectively prohibit Wireless Service. The applicant shall pay a Denial of Effective 09-2009.002/73032 5 HB -287- Item 11. - 19 Ordinance No. 3933 Service appeal fee in an amount to be established by City Council Resolution,which amount shall be the estimated cost for the City to retain an independent, qualified consultant to evaluate any technical aspect of a proposed Wireless Communications Facility, including, but not limited to, issues involving whether a significant gap in coverage exists. A Denial of Effective Service appeal must be submitted prior to the expiration of the appeal period for a Wireless Permit or Conditional Use Permit. 2. The Director shall establish the form of the Denial of Effective Service appeal. At a minimum, the Applicant shall provide the following information as part of its appeal: In order to prevail in establishing a significant gap in coverage claim the applicant shall establish at minimum the following based upon substantial evidence: a. Evidence demonstrating the existence and nature of a significant gap in service in the vicinity of the proposed Facility,including but not limited to whether the gap pertains to residential in-building, commercial in-building coverage,in-vehicle coverage, and/or outdoor coverage. b. Evidence demonstrating that the applicant has pursued other feasible sites for locating the Facility,but that they are unavailable on commercially practicable terms. c. Evidence demonstrating the radio frequency signal strength transmission requirements and objectives that the applicant has established for the Southern California region, and for the City of Huntington Beach. d. Radio frequency propagation maps demonstrating actual transmission levels in the vicinity of the proposed Facility site,and any alternative sites considered. e. Radio frequency drive tests demonstrating actual transmission levels in the vicinity of the proposed Facility site, and any alternative sites considered. f. Reports regarding the applicant's monthly volume of mobile telephone calls completed, not completed,dropped,handed-off,not handed-off, originated and not originated for the signal area to be covered by the proposed Facility. g. Any proprietary information disclosed to the city or the consultant is deemed not to be a public record, and shall remain confidential and not to be disclosed to any third party without the express consent of the applicant,unless otherwise required by law. In the event the applicant does not provide this information,the City may conclusively presume that no denial of effective service exists. All of the information noted above shall be submitted to the City within 30 days of the filing of the Denial of Effective Service appeal unless an extension is granted by the Director. 3. The Denial of Effective Service appeal shall be considered concurrently with the Wireless Permit or CUP appeal hearing before the Planning Commission. Prior to the scheduling of the public hearing on the Wireless Permit or CUP appeal, the City Attorney shall be authorized to issue administrative subpoenas to compel production of such documents,testimony and other evidence relevant to the applicant's denial of effective service claims. 09-2009.002/73032 6 Item 11. - 20 H -288- Ordinance No. 3933 G. Wireless Communication Facility Standards. The following standards shall apply to all wireless communication facilities: 1. Screeniniz. All screening used in conjunction with a wall or roof mounted Wireless Antenna shall be compatible with the architecture of the building or other structure to which it is mounted, including color,texture and materials. All ground or utility mounted facilities shall be designed to blend into the surrounding environment, or architecturally integrated into a building or other concealing structure. 2. Equipment/Accessory Structures. All equipment associated with the operation of the Wireless Antenna, including but not limited to transmission cables, shall be screened in a manner that complies with the development standards of the zoning district in which such equipment is located and Section 230.76. Screening materials and support structures housing equipment shall be architecturally compatible with surrounding structures by duplicating materials and design in a manner as practical as possible. Chain link fencing and barbed wire are prohibited. 3. General Provisions. All Wireless Communication Facilities shall comply with the Huntington Beach Urban Design Guidelines. 4. Building Codes: To ensure the structural integrity of Wireless Communication Facilities, the owners of a Facility shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for facilities that are published by the Electronic Industries Association, as amended from time to time. 5. Co-Location: Co-location of ground mounted facilities shall be required where feasible whenever such a facility is proposed within 2,500 feet of any existing Wireless Antenna. 6. Federal and State Requirements: All Wireless Communication Facilities must meet or exceed current federal and state laws, standards and regulations of the FCC, and any other agency of the federal or state government with the authority to regulate Wireless Communication Facilities. 7. Interference: To eliminate interference, at all times, other than during the 24-hour cure period,the applicant shall comply with all FCC standards and regulations regarding interference and the assignment of the use of the radio frequency spectrum. The applicant shall not prevent the City of Huntington Beach or the countywide system from having adequate spectrum capacity on the City's 800 MHz voice and data radio frequency systems. The applicant shall cease operation of any Wireless Antenna causing interference with the City's facilities immediately upon the expiration of the 24-hour cure period until the cause of the interference is eliminated. 8. Lighting: All outside lighting shall be directed to prevent"spillage" onto adjacent properties,unless required by the FAA or other applicable authority, and shall be shown on the site plan and elevations. 9. Maintenance: All facilities and appurtenant equipment including landscaping shall be maintained to remain consistent with the original appearance of the Wireless Antenna. Ground mounted facilities shall be covered with anti-graffiti coating. 09-2009.002/73032 7 HB -289- Item 11. - 21 Ordinance No. 3933 10. Monitoring: The applicant shall provide a copy of the lease agreement between the property owner and the applicant prior to the issuance of a building permit. 11. Sig s The Wireless Antenna shall not bear any signs or advertising devices other than owner identification, Certification, warning, or other required seals of signage. (3568-9/02, 12. Landscaping: Landscape planting, irrigation and hardscape improvements may be imposed depending on the location, the projected vehicular traffic,the impact on existing facilities and landscape areas, and the visibility of the proposed Wireless Antenna. Submittal of complete landscape and architectural plans for review and approval by the Directors of Public Works and Planning and Building Departments may be required. 13. Utility Agreement: If the proposed facility will require electrical power or any other utility services to the site, the applicant will be required to furnish the City's Real Estate Services Manager either a drafted utility franchise agreement between the City of Huntington Beach and the applicant to place those lines in the public right-of-way, or a written statement from the utility company that will be supplying the power or other services,that they accept all responsibility for those lines in the public right-of-way. H. Facilities in the Public Right-of-Wax. Any Wireless Communication Facility to be placed over,within, on or beneath the public right-of-way shall comply with the Undergrounding Ordinance (Chapter 17.64 of HBMC). I. Facility Removal. Wireless communication facilities affecting the public view and/or located in areas designated Water Recreation, Conservation,Parks and Shoreline, and Public Right of Ways shall be removed in its entirety within six (6)months of termination of use and the site restored to its natural state. J. Cessation of Operation. 1. Abandonment. Within thirty (30) calendar days of cessation of operations of any Wireless Communication Facility approved under this Section, the operator shall notify the Director in writing. The Wireless Antenna shall be deemed abandoned pursuant to the following sections unless: a. The City has determined that the operator has resumed operation of the Wireless Communication Facility within six (6) months of the notice; or b. The City has received written notification of a transfer of the Wireless Communication Facility. 2. City Initiated Abandonment: A Wireless Antenna that is inoperative or unused for a period of six(6) continuous months shall be deemed abandoned. Written notice of the City's determination of abandonment shall be provided to the operator of the Wireless Antenna and the owner(s) of the premises upon which the antenna is located. Such notice may be delivered in person, or mailed to the address(es) stated on the permit application, and shall be deemed abandoned at the time delivered or placed in the mail. 3. Removal of Abandoned Wireless Antenna: The operator of the Wireless Antenna and the owner(s) of the property on which it is located, shall within thirty(30) calendar days after notice of abandonment is given either(1)remove the Wireless Antenna in its entirety and 09-2009.002/73032 8 ' Item 11. - 22 HB -290- Ordinance No. 3933 restore the premises, or (2)provide the Director with written objection to the City's determination of abandonment. a. Any such objection shall include evidence that the Wireless Antenna was in use during the relevant six- (6) month period and that it is presently operational. The Director shall review all evidence, determine whether or not the Facility was properly deemed abandoned, and provide the operator notice of its determination. b. At any time after thirty-one (31) calendar days following the notice of abandonment, or immediately following a notice of determination by the Director, if applicable,the City may remove the abandoned Wireless Antenna and/or repair any and all damage to the premises as necessary to be in compliance with applicable codes. The City may,but shall not be required to, store the removed Antenna(or any part thereof). The owner of the premises upon which the abandoned Antenna was located, and all prior operators of the Antenna, shall be jointly liable for the entire cost of such removal,repair, restoration and/or storage, and shall remit payment to the City promptly after demand thereof is made. The City may, in lieu of storing the removed Wireless Antenna, convert it to the City's use, sell it, or dispose of it in any manner deemed appropriate by the City. SECTION 2. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of , 2012. Mayor ATTEST: APPROVED AS TO FORM: City Clerk City Attorney REVIEWED AND APPROVED: INITIATED AND APPROVED: City Manager Director of Planning and Building 09-2009.002/73032 9 HB -291- Item 11. - 23 ATTAC H M E N T #3 LEGISLATIVE DRAFT Planning Commission Recommendation City of Huntington Beach Zoning Text Amendment No. 09-002 (January 2012) 230.96 Wireless Communication Facilities A Purpose The " &khi This Section of the Zoning Code is to eneoiir-age and f nilitate , w4+0ess eem+miaieation faeilities outside of residential zones afidwher-e they are ifivisib eemplywith these ,rA-di fi atie., an Ere regulations to protect public safety, general welfare, and quality of life by regulating the location height and physical characteristics and provide for orderly and efficient placement of Wireless Communications Facilities in the City of Huntington Beach. (9779-!W07) Because of the potential negative aesthetic impacts of Wireless Communications Facilities including visual blight and diininution of property value, the City endeavors to locate antennas within commercial industrial and other non-residential zones screen them from view, and encourage co-location with other Wireless Communication Facilities. However, the Federal Telecommunications Act specifically 47 U.S.C. Section 332(c)(7), preempts local zoning where a Wireless Facility is necessary to remedy a_sigi iicant gap in the Wireless Provider's service. Consequently, where the City determines that the Facility does not satisfy City lannin and zoning standards the Wireless Provider may then choose to establish Federal preemption because ('i) a significant gap in wireless coverage exists and (ii} there is a lack of feasible alternative site locations. A myriad of factors are involved in determining if a gap is si niificant such as: whether the ga affects a commuter highwa • the nature and character of the area and the number of potential users affected by the alle eg d lack of service-, whether the signal is weak or nonexistent. and whether the gap affects a commercial district. Consequently, the City will require scientific evidence from an ex ert in the field dernonstrating the existence of a significant gap in service, and a lack of feasible alternative sites The applicant will be required to pay for the cost of said expert opinion. B. Definitions. For the purpose of this sSection, the following definitions for the following terms shall apply: (3568-9i02) 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 fac-ility Wireless Communication Facility. (3568-9i02) 2. '—Co-Location or Co-Located. The location or placement of multiple arnteffinia-s-Wireless Communication Facilities which are either owned or operated by more than one service provider at a single location and mounted to a common supporting structure, wall or building. (3568-9i02) 3. — - --Completely Stealth. Any Wireless Communication Facility. ^ Ff Aea4'' 44y I Glt+-I ZI that has been designed to completely screen all aspects of the facility including appurtenances and equipment from public view. Examples of completely stealth 09-2009.002/63261 Page 1 of 12 HB -293- Item 11. - 25 facilities may include, but are not limited to,,architecturally screened roof--mounted antennas, facade mounted antennas treated as architectural elements to blend in with the existing building, flagpoles, church steeples, fire towers, and flag poles and light standards: of a typical diameter. 4. —11-. Ground Mounted Facility. Any wireless antenna that is affixed to a pole, tower or other freestanding structure that is specifically constructed for the purpose of supporting an antenna. (3568-9/02,3779-10/07) 5. — . Microwave Communication. The transmission or reception of radio communication at frequencies of a microwave signal (generally, in the 3 GHz to 300 GHz frequency spectrum). (3568-9/02) 66. 6. Modified Facility. An existing Wireless Communication Facility where the antennas and/or supporting structure are proposed to be altered in any way from their existing condition, including like-for-like replacement but excluding co-location. 6 7.Pre-existing Wireless Facility. Any -eless at r f�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 f eifltieswireless antennas that have not yet been constructed so long as such approval is current and not expired. (3568-9/02) 8. — 7. Public Right-of-Way The area across, along, beneath, in, on, over, under, upon, and within the dedicated public alleys, boulevards, courts, lanes, places, roads, sidewalks, streets, ways. private streets with public access easements within the City's boundaries, and City owned properties, as they now exist or hereafter will exist. 7e.9.Roof Mounted. Any wireless antenna directly attached or affixed to the roof of an existing building, water tank, tower or structure other than a telecommunications tower. (3568-9/02) 10. ---8. Stealth Techniques. Any r-eless compaunicatien £eil tsWireless Communication Facility, including any ppurtenances and equipment, which is designed to blend into the surrounding environment, tp' , e that is ehiteetfall integt:ate d . Examples of Stealth Technique include,but are not limited to, monopaln7s/mono Ines. (3568-9/02) — 9. 9.11. Utility Mounted. Any wireless antenna mounted to an existing above-ground structure specifically designed and originally installed to support utilities such as but not limited to electrical power lines, cable television lines, telephone lines, non-commercial wireless service antennas, radio antennas, street lighting but not traffic signals, recreational(Facility lighting, or any other utility which meets the purpose and intent of this definition.-(3568-9/02 3779-10/07) --(3568 9/02;377-94G/87 --4-0 4-0 12. Wall Mounted. Any wireless antenna mounted on any vertical or nearly vertical surface of a building or other existing structure that is not specifically constructed for the purpose of supporting an antenna(including the exterior walls of a building, an existing parapet, the side of a water tank, the face of a church steeple, or"the side of a freestanding _ 09-2009.002/63261 Page 2 of 12 Item 11. - 26 HB -294- E sign) such that the highest point of the antenna structure is at an elevation equal to or lower than the highest point of the surface on which it is mounted. (3568-9/02,3779-10/07) 4-1:13. --14-:-Wireless Communication Facility or Facility_.-or Wireless Antenna. An antenna structure and any appurtenant facilities or equipment that transmits electronic waves or is used for the transmission or receipt of signals that are used in connection with the provision of wireless communication service, including,but not limited to digital, cellular and radio service. -C. Applicability. 1. All wife-less et unioatien-4ci414esThis ordinance shall apply to all Wireless Communication Facilities which are erected, located, placed, e^�tFUCteA or modified within the City of Huntington Beach Z, :—{ a �t shall be eXOMPt F,-Ofl! those ,•a,-„latiOBS andeff-ective date Aefrse;6041 230.96 shall be exempt ftem these-i ; 701;. oti�sz Qrn� �770 �nrmi b of this seetion applies. (356 e. D. Exceptions. The following Wireless Communication Facilities shall be exempt from this Ordinance. 1. Any fEacility, which is subject to a previously approved and valid eoniti—& se permi-tentitlement,may be modified within the scope of the applicable permit without complying with these regulations and ,,;deliiw, -Me4 f;ea�. However, modifications outside the scope of the valid ceiiditional use pemiit w ll ,��1„ - 1x=�,Mift-al • �������z�entit ement or any modification to an existing facility that does not have a previously approved and valid entitlement is subject to the requirements of a Wireless Pen:nit applie tion this ordinance. 4;eder-al r-egulatians are amended or- eliminated. See Seetten`., additional ro quir-emeiills. (3568 9/02 3779 10/07) 2�Any antenna structure that is one meter(39.37 inches) or less in diameter aondthat 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 thereo 1 .4356&-Wl _— 3. h. 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. k6s-9ir12� 4. Any antenna structure that is one meter(39.37 inches) or less in diameter or diagonal 09-2009.002/63261 Page 3 of 12 ' HB -295- �I Item 11. - 27 _measurement and is designed to receive Multipoint Distribution Service, provided that no part of the antenna structure extends more than five (5) feet above the principle building on the same lot. (3568 94e21 designedd. Any antenna stfuettiFe that is . -- e5. Any antenna structure used by authorized amateur radio stations licensed by the FCC. I3— E. Process to Install and Operate Wireless PeRnit Reqtnh=ed. Communication Facilities. No w4eless eoninninieation fac-il:* Facility shall be installed anywhere in the City without „l,n iss;ejl --"first securing either a Wireless Permit or a Conditional Use Permit as required below. 1. Wireless Permit Applicationis 106ated in the leaS4 obtnisive joeation feasibie so as . The applicant shall apply o eliminate R bn„ in SeR4ee a„d ils^��the Planning and Building Department for a Wireless Permit by submitting a completed Wireless Permit Application("Application") and paying all required fees. The Application shall be in the form approved by the Director, and at a minimum shall provide the following information:--4aaa-9-i.ogW4 existingDemonstFate gaps in eovei:age, and the r-adius of area f+oinwhiieh an antenna liar 'be 10 a tA elute the ee��r �� fie.E a�2. C-om '-m4 yPrecise location of the Facility. a:b.Evidence that the Facility is compatible with the surrounding environment or that the fuzi'�arefacility is architecturally integrated into a structure. -437-794g/aa1 b-c.3. Se _ :_______.1'__a.__aEvidence that the facility is screened or camouflaged by existing or proposed topography, vegetation, buildings or other structures as measured from beyond the boundaries of the site at eye level (six feet). 4. N b e:d.Evidence that the massing and location of the proposed facility are consistent with surrounding structures and zoning districts.-437-asa-o/azl d-.e.5—. -oEvidence that no portion of a wireless faedit sha r e4 the Facility will encroach over property lines.----{3-7-s-aoAO7-} . � b armless-eaniniuni at-ion faeJ."it-ies feg esSof si,�". 37-7s 1e/07} f , fe'�ally Property owner authorization or evidence of fee ownership of property where the Facility will be installed. In the case of City-owned property or any public right-of-way, the applicant shall provide a license lease fi-anchise or other similar agreement from the City to place any Facility over, within on or beneath City property or right-of-way_ is 09-2009.002/63261 Page 4 of 12 Item 11. - 28 HB -296- g Locations of all other Wireless Antennas within 2,500 feet of a proposed..ground mounted facility. Co-location of ground mounted facilities shall be required where feasible whenever such a facilit is ro osed within 2,500 feet of an existing Wireless Antenna. h. Any other relevant information to-t4e-Re-4eas required by the Director of Planning and Buildin12. The Planning and Building Department fer-will initially review."4-,7�-=7) and determine if the Application is complete. The City may deem the Application incomplete and require re-submittal if any of the above information is not rovided. saa19-a 474 tzc ad' t ePewe rRT4-43� 9--�8/87} pia, -�4na��ald 37-7-9--I ? b b b , J z,.vixxxi-rcs-trrr�. 'ssiccisecrr crie c.'x'si. =�s.� xYus-�cexr"-r�i�t. �3779-1-0107} b b b viT alz�iitc'm?erri�� $,�ijs'�fi€.'s. �l i�'9ci?iii 2�rv�'�cii Sid e'r'r' Fxvtrsi d. t �7 I-WQ7) 2. Director A royal. Followin submittal of a cam lete A location the Cit will determine whether the Facility ma be approved bv the Director or whether a Conditional Use Pen-nit or other entitlement is required. Wireless Permit applications will be 09-2009.002/63261 Page 5 of 12 xB -297- Item 11. - 29 processed based upon the location and type of antennas defined in herein. Although said classifications are assigned at project intake a re-evaluation of antenna classifications may occur at any point in the process including at the time of review by the Director Zonis Administrator, Planning Commission or City Council. A Facility not subject to any other discretionary approval may be administratively approved by the Director by issuing a Wireless Permit if it is: a. Co-located on an existing approved Wireless Facility, does not exceed the existing Wireless Facility heights and employs Stealth Techniques such that the co-located Wireless Facility is compatible with surrounding buildings and land uses: or A modified Facility that are: ¢� 41oa-4 a-.b. b eomp-lycom lies with the base district height limit for— r � h�i�,,plus up to an additional 10 feet of height as permitted in Section 230.72 and compatible with surrounding buildings and land uses by incorporating stealth techniques; or 0,113 Vie. Completely,,stealth fa�� i A Facility that complyies with the base district height limit;er —4a7-7�} b u;,d;+�-,—plus uptoanaditonal 0 feet ofegtasmh t g dist3iet;in Section 230.72 is proposed to be located more than 1.200 feet from residential, and is either Completely Stealth or Stealth. d-437- -a �'au7aV 4 Designed buildings 19 e. bat n&Wifp�� , Walha. Exeeeding bthe raaximum buildingb designedd. Not b tf'SeS: 09-2009.002/63261 Page 6 of 12 - Item 11. - 30 HB -298- - --- The Director may require conditions of approval of the Facility in order to minimize adverse health, safety and welfare impacts to the community. A decision of the Director to gant a Wireless Permit shall become final ten 10 days following the date of the decision unless an a eal to the Plannin Commission is filed as provided in Cha ter 248 of the Huntington Beach Zonin= and Subdivision Ordinance (HBZSO).. The Director shall issue findings of approval that the Facility meets the above criteria and is not a detriment to the health, safety and welfare of the community. 3. Zoning Administrator Approval. In the event the Director determines that the applicant does not meet the requirements for Director approval of a Wireless Permit, then the applicant shall apply for a Conditional Use Permit CUP to the Zoning Administrator pursuant to Chapter 241 of the HBZSO. Notwithstanding any other provisions of the HBZSO an new wireless facilities excludin co-locations and modifications proposed to be located within 1 200 feet of residential shall be re aired to obtain a CUP. CUP a lications shall also inchide the same information required under subsection E.1. The Zoning Administrator may require. as a condition of approval of the Clen n s Per CUP that the wing ^-Inii ist,.ate Alt„1 applicant minimize significant adverse impacts to the community and public visual resources by incorporating one or more of the following into project design and construction:—¢3T � Completely Stealth installations;— a7-�} b. Stealth Techni i es• c. Co-location and locating fFacilities within existing building envelopes; ¢a779-4 d. Colorization or landscaping;- 377&4-oE to minimize visual prominence, and/or We.Removal or replacement of(facilities that beco�are obsolete.---�a7-�} --3 Further conditions of approval of a facility CUP may be im osed as rovided in Chapter 241 of the HBZSO. The Zoning Administrator's decision ma be a Baled to the Plamlin Commission in accordance with Cha ter 24S of the HBZSO. 4. Design Review. Design review shall be required for any 4i+ ie Wireless Communication Facilities ursuant to the HBZSO as well as those located int-redeve4e -afeas on public right-of- , act roe, or within 300 feet of a residential district, or use . �ta� r.zr the Cit G �� �a�� In z �c�-a��'c�t;-iiiittu�� y-.c�eit��r�-x�e-����-rr. Notwithstandin, any other provisions of the HBZSO design review is not required for -ifele s c-o'x-n,���sWireless Communication Facilities that amp4y--tk4 h mayapproved by the Director pursuant to subsection 4—E.2 (Director Approval) above and have any a urtenant facilities and e ui ment located underground or within an existing building or existing enclosure 09-2009.002/63261 Page 7 of 12 HB -299- ` ' Item 11. - 31 F. Applicant May Assert Federal Preemption At Time of Appeal To Planning Commission. 1. If the decision on the Wireless Pen-nit or Conditional Use Permit is appealed either by a licant or an a rieved art to the Plannin Commission the A licant ma assert that Federal Law preempts the City from den -ing the application because denial would effectively prohibit Wireless Service. The applicant shall pay a Denial of Effective Service appeal fee in an amount to be established by City Council Resolution. which amount shall be the estimated cost for the City to retain an independent, qualified consultant to evaluate any technical as ect of a proposed Wireless Communications Facility, including, but not limited to issues involving whether a significantgap in coverage exists. A Denial of Effective Service a eal must be submitted prior to the expiration of the appeal period for a Wireless Permit or Conditional Use Permit. �2. The Director shall establish the form of the Denial of Effective Service appeal. At a minimum the Applicant shall provide the following information as Dart of its appeal: In order to prevail in establishing a significant gap in coverage claim the applicant shall establish at minimum the followin based upon substantial evidence: a. Evidence demonstrating the existence and nature of a significant gap in service in the vicinity of the proposed Facility, including but not limited to whether the gap pertains to residential in-building commercial in-building_coverage in-vehicle coverage and/or outdoor coverage. b. Evidence demonstrating that the applicant has pursued other feasible sites for locating the Facility,but that they are unavailable on commercially practicable terms. e. Evidence demonstrating the radio fiequencgnal strength transmission recluirements and objectives that the applicant has established for the Southern California region, and for the Citof Huntington Beach. d. Radio fre uencv ro aotion maps demonstrating actual transmission levels in the vicinit of the ro posed Facilit site, and any alternative sites considered. e. Radio frequency drive tests demonstrating actual transmission levels in the vicinity of the ro osed Facrht site, and any alternative co p es siti nsidered. f. Reports regarding the applicant's monthly volunne of mobile telephone calls com leted not com Meted dropped, handed-off, not handed-off, originated and not originated for the signal area to be covered by the proposed Facility. g. An pro rietar information disclosed to the cit or the consultant is deemed not to be a public record, and shall remain confidential and not to be disclosed to any third party without the ex ress consent of the a licant, unless otherwise re wired b law. hn the event the a licant does not rovide this information the City may conclusively presume that no denial of effective service exists. All of the information noted above shall be submitted to the City within 30 days of the filin of the Denial of Effective Service anneal unless an extension is -ranted by the Director. 09-2009.002/63261 Page 8 of 12 i Item 11. - 32 HB -300- 3. The Denial of Effective Service appeal fsh-,lfbe'eonsidered concurrent) with the Wireless Permit or CUP appeal hearing before the Planning Commission. Prior to the schedulin,s4 of the vublic hearins4 on the Wireless Permit or CUP avveal, the C1tV Attorne shall be authorized to issue adrninistratiye sub aenas to eom el roduction of such documents, testimony and other evidence relevant to the applicant's denial of effective service claims. G. Wireless Communication Facilitv Standards:. The following standards shall apply to all wireless communication facilities: —012s9-io/o�� Ati 4w a. Facility-Screening. All screening used in conjunction with a wall or roof mounted 14yWireless Antenna shall be compatible with the architecture of the building or other structure to which it is mounted, including color, texture and materials. All ground or util mounted facilities shall be designed to blend into the surrounding environment, or architecturally integrated into a building or other concealing structure. (3568-9/02.) -- 2. Equipment/Accessory Structures.-. All equipment associated with the operation of the 44ei4t-yWireless Antenna, including but not limited to transmission cables, shall be screened in a manner that complies with the development standards of the zoning district in which such equipment is located.and Section 230.76. Screening materials and support structures housing equipment shall be architecturally compatible with surrounding structures by duplicating materials and design in a manner as practical as possible. if c,hain Chain link is used, then T mu-s* c- vinyl eoate fencina and&k dt-7-barbed wire are:�rohibited. (3568-9/02) - - --------3. General Provisions--. All Wireless Communication Facilities shall comply with the Huntington Beach Urban Design Guidelines. (3568-9/02) 1 ------24. Building Codes: To ensure the structural integrity of wife4es-s- ice-:= fa�i-� ireless Communication Facilities, the owners of a)Facility shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for facilities that are published by the Electronic Industries Association, as amended from time to time. (3568-9/02) 3xrcrrrw-cz�stYic-ir'v��c-vviiecrc�vr7-vs-zxici�rczcciczviT3�ir--rirc,-�r���,r�3 ztr�.. _{3568-9/d32) ---45. Co-Location: Co-location of ground mounted facilities shall be re uired where feasible whenever such a facility is proposed within 2.500 feet of an existin Wireless Antenna. 6. Federal and State Requirements: All Wireless Communication Facilities must meet or exceed current federal and state laws standards and regulations of the FCC, and any other agency of the state federal or fedefa-l-state government with the authority to regulate '�P� rn�,,.,'� ,:�r �� ' *°��Wireless Communication Facilities. (3568-9/02) �oczi�rer��s--i;^v-7���, �� 7. Interference: To eliminate interference at all times other than during the 24-hour cure period, the applicant..shall comply with all FCC standards and regulations re ardin interference and the assignment of the use of the radio fr-cruency s ectrum._The applicant shall not nreverlt the City of Huntington Beach or the countywide system from having.adequate spectrum capacity on the City's 800 MHz voice and data radio 09-2009.002/63261 Page 9 of 12 HB -301- Item 11. - 33 frequency systems The applicant shall cease operation of any Wireless Antenna causing interference with the City's facilities immediately upon the exertion of the 24- hour cure period until the cause of the interference is eliminated. (3779-10/07) 8. Lighting: All outside lighting shall be directed to prevent"spillage" onto adjacent properties, unless required by the FAA or other applicable authority, and shall be shown on the site plan and elevations. (3568-9/02,3779-10/07) _69. Maintenance: All facilities and appurtenant equipment including landscaping shall be maintained to remain consistent with the original appearance of the faeility-.Wireless Antenna. Ground mounted facilities shall be covered with anti-graffiti coating. (3568-9/02,3779-10/07) 710. Monitoring: The applicant shall provide a copy of the lease agreement between the property owner and the applicant prior to the issuance of a building permit. — 8-H H. Signs: The 4i--tyWireless Antenna shall not bear any signs or advertising devices other than owner identification, certification, warning, or other required seals of signage.— 3568 9(02 3779-10/07 less . 12. Landscaping_ Landscape planting, irrigation and hardscape improvements may be imposed depending on the location, the projected vehicular traffic, the impact on existing facilities and landscape areas, and the visibility of the proposed faeik-ty:Wireless Antenna. Submittal of complete landscape and architectural plans for review and approval by the Directors of Public Works and Planning and Building Departments may be required. (3779-10/07) 11 --13. Utility Agreement: If the proposed facility will require electrical power or any other utility services to the site, the applicant will be required to furnish the City's Real Estate Services Manager either a drafted utility franchise agreement between the City of Huntington Beach and the applicant to place those lines in the public right-of- way, or a written statement from the utility company that will be supplying the power or other services, that they accept all responsibility for those lines in the public right-of-way. 3779-10/07 H. Facilities in the Public Right-of-Way. Any wireless coni tea &6 �-Wireless Communication Facility to be placed over, within, on or beneath the public right-of-way shall comply with the folio er 17.64 of HBMC). (3568-9/02,3779-10/07) ffucted on or-beneath the-pub4e "g telephone e 09-2009.002/63261 Page 10 of 12 Item 11. 34 HB -302- b. All equipment associated with the operation of a faoility, including but not limited to b shall be laced b street, ToUnEJ in those portions of the sidewalks and ublie rights Of > underground.telephone or eleetrie lines are UndeFb rightse. The City Engineer-shall approve the location and method of eonstfuetion-of-aI4 fees,1-11 Me-publie rights of way must eemply with Title 12 of the Huntington Beaeh Munieipal Code, as the safne may be amended frora time to tlMe. d. All wireless coninit-meation facilities shall be subje-e-1, f-- 'alThe-a-ble City perniiet-ai+d iflspeetion > bu not limited > these Pertaining to eanereachment Permit..,,, , . r'568 9/02 3779 4nm71) e. Any wiffeless communieation facility installed,used or maintained within the piablie hts of way shall be r-emoved or r-eloeated wheri'made necessary by any cc » (3,F pufposes of this b section, eet shall mean alignmentany publieb OF any redevelopment ageney, Community f4eilitV distfiet, assessment distfiet, area a ght of way, ineluding but not lifnited to, the benefit, reim-a-serneflt bgeenient OF enerally applicable impact the City, if the utility pole is removed pursuant to an b •—Cwo� Be r b b PFOje > > the Galilbfnia > n- the ease b elephony IQ PGS v. County of San Diege, will deterrninewhethef California Publie Utilities Gode 0 1)1 grants a state wide fFanehise to use the publie rights of way for the purpese-of r this legal that the ff-.anehise fee payrnents shall he refunded to the applieant an,d the fi-anehise -eeeffie HH11. and vaid if andwhen the California Stipferne Court establishes that the provider has a state kvide ft-anehise to install. a vl-- ess e0fliffitiffleat.Otis —e- -13. 1. Facility Removal. a. Wireless communication facilities affecting the public view and/or located in areas designated Water Recreation, Conservation, Parks and Shoreline, and Public Right of Ways shall be removed in its entirety within six (6) months of termination of use and the site restored to its natural state. (3779-10/07) ----bJ. Cessation of Operation-. l. Abandonment. Within thirty(30) calendar days of cessation of operations of any fireless ear "„ fie ation faeil tyWireless Communication Facility approved under this sSection, the operator shall notify the Planning Depaftin Director in writing. The 09-2009.002/63261 Page 11 of 12 xB -303- Item 11. - 35 €aeilityWireless Antenna shall be deemed abandoned pursuant to the following sections unless: (3568-9/02,3779-10/07) —1. a. The City has determined that the operator has resumed operation of the ,:'irele,s, e A-im unit do f cil. •Wireless Communication Facility within six (6) months of the notice; or (3568-9/02,3779-10/07) 2. b. The City has received written notification of a transfer of wi--eles-s the Wireless Communication Facility. (3568-9/02,3779-10/07) — 2. City Initiated Abandonment: A fac-ilityWireless Antenna that is inoperative or unused for a period of six (6) continuous months shall be deemed abandoned. Written notice of the City's determination of abandonment shall be provided to the operator of the faeilityWireless Antenna and the owner(s) of the premises upon which the 4w44 yantenna is located. Such notice may be delivered in person, or mailed to the address(es) stated on the f46145 permit application, and shall be deemed abandoned at the time delivered or placed in the mail. (3568-9/02,3779-10/07) --El. 3. Removal of Abandoned€aei4yWireless Antenna: The operator of the faeilftyWireless Antenna and the owner(s) of the property on which it is located, shall within thirty(30) calendar days after notice of abandonment is given either(1) remove the facility Wireless Antenna in its entirety and restore the premises, or(2) provide the Plam ing DepaFt,,,^rrtDirector with written objection to the City's determination of abandonment. (3779-10/07) a. Any such objection shall include evidence that the facilityWireless Antenna was in use during the relevant six- (6)month period and that it is presently operational. The Director shall review all evidence, determine whether or not the(Facility was properly deemed abandoned, and provide the operator notice of its determination. (3568-9/02,3779-10/07) e. Removal by Gity� b. At any time after thirty-one (31) calendar days following the notice of abandonment, or immediately following a notice of determination by the Director, if applicable, the City may remove the abandoned f4efli-tyWireless Antenna and/or repair any and all damage to the premises as necessary to be in compliance with applicable codes. The City may, but shall not be required to, store the removed faei-lityAntenna (or any part thereof). The owner of the premises upon which the abandoned facilityAntenna was located, and all prior operators of the faeflityAntenna, shall be jointly liable for the entire cost of such removal, repair, restoration and/or storage, and shall remit payment to the City promptly after demand thereof is made. The City may, in lieu of storing the removed faeflatyWireless Antenna, convert it to the City's use, sell it, or dispose of it in any manner deemed appropriate by the City. 09-2009.002/63261 Page 12 of 12 Item 11. - 36 HB -304- ATTACHMENT #4 STAFF SUGGESTED FINDINGS FOR APPROVAL ZONING TEXT AMENDMENT NO. 09-002 FINDINGS FOR PROJECTS EXEMPT FROM CEQA: The City Council finds that the project will not have any significant effect on the environment and is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to City Council Resolution No. 4501, Class 20, which supplements CEQA because the request is a minor amendment to a zoning ordinance that does not change the development standards intensity or density. FINDINGS FOR APPROVAL - ZONING TEXT AMENDMENT NO. 09-002: 1. Zoning Text Amendment No. 09-002 to amend Section 230.96 (Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance is consistent with the goals, objectives, policies, general land uses and programs specified in the General Plan including: A. Land Use Element Policy LU L L I: Establish incentives for the development of uses to support the needs and reflect the economic demands of City residents and visitors. Goal LU2: Ensure that development is adequately served by transportation infrastructure,utility infrastructure, and public services. Goal L U 4: Achieve and maintain high quality architecture, landscape, and public open spaces in the City. Objective L U 9.2: Provide for the preservation of existing residential neighborhoods. B. Utilities Element Goal U 5: Maintain and expand service provision to City of Huntington Beach residences and businesses. Objective U 5.1: Ensure that adequate natural gas, telecommunication and electrical systems are provided. Policy U 5.1.1: Continue to work with service providers to maintain current levels of service and facilitate improved levels of service. Item 11. - 38 HB -306- C. Coastal Element Policy C 4.2.4: Wireless communication facilities shall be sited, to the maximum extent feasible, to minimize visual resource impacts. Minimization may be accomplished through one or more of the following techniques: co-locating antennas on one structure, stealth installations, locating facilities within existing building envelopes, or minimizing visual prominence through colorization or landscaping and removal of facilities that become obsolete. D. Economic Development Element Policy ED 2.3.1: Strive to reduce all discretionary permit and licensing processing time. The proposed ZTA will continue to allow WCFs in most zoning districts subject to City approval to service the needs of the residents, businesses, and visitors and continue to provide processing incentives for those facilities that meet certain development standards. It continues to encourage WCFs to use stealth techniques and requires all associated buildings or structures to be compatible with the surrounding environment. It will provide for the preservation of existing residential neighborhoods by elevating the approval process through a conditional use permit requirement for all ground mounted and utility mounted WCFs. 2. In the case of a general land use provision, the change proposed is compatible with the uses authorized in, and the standards prescribed for, the zoning district for which it is proposed. Zoning Text Amendment No. 09-002 will revise the citywide wireless communication facilities ordinance. It will not affect the zoning of any property or the allowed uses and development standards of any zoning district. 3. A community need is demonstrated for the change proposed. Zoning Text Amendment No. 09-002 will reflect the City's desired approval process and requirements for WCFs in consideration of maximizing the goals of the General Plan. 4. Its adoption will be in conformity with public convenience, general welfare and good zoning practice because Zoning Text Amendment No. 09-002 will continue to allow WCFs throughout most of the city while protecting the community's general welfare and quality of life through the new permitting and entitlement process. HB -307- Item 11. - 39 ATTAC H M E N T #5 Item , , _ 40 „a ,0e ORDINANCE NO. 3934 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING SECTION 230.96 OF THE HUNTINGTON BEACH ZONING AND SUBDIVISION ORDINANCE RELATING TO WIRELESS COMMUNICATION FACILITIES The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Section 230.96 of the Huntington Beach Zoning and Subdivision Ordinance is hereby amended to read as follows: 230.96 Wireless Communication Facilities A. Purpose. This Section of the Zoning Code is to protect public safety, general welfare, and quality of life by regulating the location,height and physical characteristics and provide for orderly and efficient placement of Wireless Communications Facilities in the City of Huntington Beach. Because of the potential negative aesthetic impacts of Wireless Communications Facilities, including visual blight and diminution of property value, the City endeavors to locate antennas within commercial, industrial and other non-residential zones, screen them from view, and encourage co-location with other Wireless Communication Facilities. However, the Federal Telecommunications Act, specifically 47 U.S.C. Section 332(c)(7),preempts local zoning where a Wireless Facility is necessary to remedy a significant gap in the Wireless Provider's service. Consequently, where the City determines that the Facility does not satisfy City planning and zoning standards,the Wireless Provider may then choose to establish Federal preemption because (i) a significant gap in wireless coverage exists, and (ii) there is a lack of feasible alternative site locations. A myriad of factors are involved in determining if a gap is significant, such as: whether the gap affects a commuter highway;the nature and character of the area and the number of potential users affected by the alleged lack of service; whether the signal is weak or nonexistent, and whether the gap affects a commercial district. Consequently, the City will require scientific evidence from an expert in the field demonstrating the existence of a significant gap in service, and a lack of feasible alternative sites. The applicant will be required to pay for the cost of said expert opinion. B. Definitions. For the purpose of this Section,the following definitions for the following terms shall apply: 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 or placement of multiple Wireless Communication Facilities which are either owned or operated by more than one service provider at a single location and mounted to a common supporting structure, wall or building. 09-2009.002/73032 1 Ordinance No. 3934 3. Completely Stealth. Any Wireless Communication Facility that has been designed to completely screen all aspects of the facility including appurtenances and equipment from public view. Examples of completely stealth facilities may include, but are not limited to, architecturally screened roof mounted antennas, facade mounted antennas treated as architectural elements to blend in with the existing building, church steeples, fire towers, and flag poles and light standards of a typical diameter. 4. Ground Mounted Facility. Any wireless antenna that is affixed to a pole, tower or other freestanding structure that is specifically constructed for the purpose of supporting an antenna. 5. Microwave Communication. The transmission or reception of radio communication at frequencies of a microwave signal (generally, in the 3 GHz to 300 GHz frequency spectrum). 6. Modified Facility. An existing Wireless Communication Facility where the antennas and/or supporting structure are proposed to be altered in any way from their existing condition, including like-for-like replacement but excluding co-location. 7. Pre-existing Wireless Facility. Any Wireless Communication Facility for which a building permit or conditional use permit has been properly issued prior to the effective date of this ordinance, including permitted wireless antennas that have not yet been constructed so long as such approval is current and not expired. 8. Public Right-of-Way The area across, along, beneath, in, on, over, under, upon, and within the dedicated public alleys, boulevards, courts, lanes, places, roads, sidewalks, streets, ways,private streets with public access easements within the City's boundaries, and City owned properties, as they now exist or hereafter will exist. 9. Roof Mounted. Any wireless antenna directly attached or affixed to the roof of an existing building, water tank, tower or structure other than a telecommunications tower. 10. Stealth Techniques. Any Wireless Communication Facility, including any appurtenances and equipment, which is designed to blend into the surrounding environment. Examples of Stealth Technique include, but are not limited to, monopalms/monopines. 11. Utility Mounted. Any wireless antenna mounted to an existing above-ground structure specifically designed and originally installed to support utilities such as but not limited to electrical power lines, cable television lines, telephone lines, non-commercial wireless service antennas, radio antennas, street lighting but not traffic signals, recreational Facility lighting, or any other utility which meets the purpose and intent of this definition. 12. Wall Mounted. Any wireless antenna mounted on any vertical or nearly vertical surface of a building or other existing structure that is not specifically constructed for the purpose of supporting an antenna (including the exterior walls of a building, an existing parapet, the side of a water tank, the face of a church steeple, or the side of a freestanding sign) such that the highest point of the antenna structure is at an elevation equal to or lower than the highest point of the surface on which it is mounted. 09-2009.002/73032 2 Ordinance No. 3934 13. Wireless Communication Facility or Facility or Wireless Antenna. An antenna structure and any appurtenant facilities or equipment that transmits electronic waves or is used for the transmission or receipt of signals that are used in connection with the provision of wireless communication service, including, but not limited to digital, cellular and radio service. C. Applicability. This ordinance shall apply to all Wireless Communication Facilities which are erected, located, placed or modified within the City of Huntington Beach. D. Exceptions. The following Wireless Communication Facilities shall be exempt from this Ordinance. 1. Any Facility,which is subject to a previously approved and valid entitlement, may be modified within the scope of the applicable permit without complying with these regulations. However, modifications outside the scope of the valid entitlement or any modification to an existing facility that does not have a previously approved and valid entitlement is subject to the requirements of this ordinance. 2. Any antenna structure that is one meter(39.37 inches) or less in diameter that is designed to receive direct broadcast satellite service, including direct-to-home satellite service for television purposes, as defined by Section 207 of the Telecommunication Act of 1996, Title 47 of the Code of Federal Regulations, and any interpretive decisions thereof. 3. Any antenna structure that is two meters (78.74 inches) or less in diameter located in commercial or industrial zones and is designed to transmit or receive radio communication by satellite antenna. 4. Any antenna structure that is one meter(39.37 inches) or 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. 5. Any antenna structure used by authorized amateur radio stations licensed by the FCC. E. Process to Install and Operate Wireless Communication Facilities. No Facility shall be installed anywhere in the City without first securing either a Wireless Permit or a Conditional Use Permit as required below. 1. Wireless Permit Application. The applicant shall apply to the Planning and Building Department for a Wireless Permit by submitting a completed Wireless Permit Application ("Application") and paying all required fees. The Application shall be in the form approved by the Director, and at a minimum shall provide the following information: a. Precise location of the Facility. b. Evidence that the Facility is compatible with the surrounding environment or that the facility is architecturally integrated into a structure. c. Evidence that the facility is screened or camouflaged by existing or proposed topography, vegetation, buildings or other structures as measured from beyond the boundaries of the site at eye level (six feet). 09-2009.002/73032 3 Ordinance No. 3934 d. Evidence that the massing and location of the proposed facility are consistent with surrounding structures and zoning districts. e. Evidence that no portion of the Facility will encroach over property lines. f. Property owner authorization or evidence of fee ownership of property where the Facility will be installed. In the case of City-owned property or any public right-of- way, the applicant shall provide a license, lease, franchise, or other similar agreement from the City to place any Facility over, within, on, or beneath City property or right- of-way. g. Locations of all other Wireless Antennas within 1,000 feet of a proposed ground mounted facility. Co-location of ground mounted facilities shall be required where feasible whenever such a facility is proposed within 1,000 feet of any existing Wireless Antenna. h. Any other relevant information as required by the Director of Planning and Building. The Planning and Building Department will initially review and determine if the Application is complete. The City may deem the Application incomplete and require re- submittal if any of the above information is not provided. 2. Director Approval. Following submittal of a complete Application, the City will determine whether the Facility may be approved by the Director or whether a Conditional Use Permit or other entitlement is required. Wireless Permit applications will be processed based upon the location and type of antennas defined in herein. Although said classifications are assigned at project intake, a re-evaluation of antenna classifications may occur at any point in the process including at the time of review by the Director, Zoning Administrator, Planning Commission or City Council. A Facility not subject to any other discretionary approval may be administratively approved by the Director by issuing a Wireless Permit if it is: a. Co-located on an existing approved Wireless Facility, does not exceed the existing Wireless Facility heights, and employs Stealth Techniques such that the co-located Wireless Facility is compatible with surrounding buildings and land uses; or b. A modified Facility that complies with the base district height limit plus up to an additional 10 feet of height as permitted in Section 230.72 and compatible with surrounding buildings and land uses by incorporating stealth techniques; or c. A Facility that complies with the base district height limit plus up to an additional 10 feet of height as permitted in Section 230.72, is Completely Stealth, and is not ground or utility mounted. The Director may require conditions of approval of the Facility in order to minimize adverse health, safety and welfare impacts to the community. 09-2009.002/73032 4 Ordinance No. 3934 The Director may require conditions of approval of the Facility in order to minimize adverse health, safety and welfare impacts to the community. A decision of the Director to grant a Wireless Permit shall become final ten(10) days following the date of the decision unless an appeal to the Planning Commission is filed as provided in Chapter 248 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO). The Director shall issue findings of approval that the Facility meets the above criteria and is not a detriment to the health, safety and welfare of the community. 3. Zoning Administrator Approval. In the event the Director determines that the applicant does not meet the requirements for Director approval of a Wireless Permit, then the applicant shall apply for a Conditional Use Permit(CUP)to the Zoning Administrator pursuant to Chapter 241 of the HBZSO. Notwithstanding any other provisions of the HBZSO, any new wireless facilities, excluding co-locations and modifications, proposed to be located within 1,200 feet of residential shall be required to obtain a CUP. CUP applications shall also include the same information required under subsection E.1. The Zoning Administrator may require, as a condition of approval of the CUP that the applicant minimize significant adverse impacts to the community and public visual resources by incorporating one or more of the following into project design and construction: a. Completely Stealth installations; b. Stealth Techniques; c. Co-location and locating Facilities within existing building envelopes; d. Colorization or landscaping to minimize visual prominence; and/or e. Removal or replacement of Facilities that are obsolete. Further conditions of approval of a facility CUP may be imposed as provided in Chapter 241 of the HBZSO. The Zoning Administrator's decision may be appealed to the Planning Commission in accordance with Chapter 248 of the HBZSO. 4. Design Review. Design review shall be required for any Wireless Communication Facilities pursuant to the HBZSO as well as those located on public right-of-way and on or within 300 feet of a residential district or use in the City. Notwithstanding any other provisions of the HBZSO, design review is not required for Wireless Communication Facilities that may be approved by the Director pursuant to subsection E.2 (Director Approval) above and have all appurtenant facilities and equipment located underground or within an existing building or existing enclosure. F. Applicant May Assert Federal Preemption At Time of Appeal To Planning Commission 1. If the decision on the Wireless Permit or Conditional Use Permit is appealed (either by applicant or an aggrieved party) to the Planning Commission, the Applicant may assert that Federal Law preempts the City from denying the application because denial would effectively prohibit Wireless Service. The applicant shall pay a Denial of Effective 09-2009-002/73032 5 Ordinance No. 3934 Facility, including, but not limited to, issues involving whether a significant gap in coverage exists. A Denial of Effective Service appeal must be submitted prior to the expiration of the appeal period for a Wireless Permit or Conditional Use Permit. 2. The Director shall establish the form of the Denial of Effective Service appeal. At a minimum, the Applicant shall provide the following information as part of its appeal: In order to prevail in establishing a significant gap in coverage claim the applicant shall establish at minimum the following based upon substantial evidence: a. Evidence demonstrating the existence and nature of a significant gap in service in the vicinity of the proposed Facility, including but not limited to whether the gap pertains to residential in-building, commercial in-building coverage, in-vehicle coverage, and/or outdoor coverage. b. Evidence demonstrating that the applicant has pursued other feasible sites for locating the Facility, but that they are unavailable on commercially practicable terms. c. Evidence demonstrating the radio frequency signal strength transmission requirements and objectives that the applicant has established for the Southern California region, and for the City of Huntington Beach. d. Radio frequency propagation maps demonstrating actual transmission levels in the vicinity of the proposed Facility site, and any alternative sites considered. e. Radio frequency drive tests demonstrating actual transmission levels in the vicinity of the proposed Facility site, and any alternative sites considered. f. Reports regarding the applicant's monthly volume of mobile telephone calls completed, not completed, dropped, handed-off, not handed-off, originated and not originated for the signal area to be covered by the proposed Facility. g. Any proprietary information disclosed to the city or the consultant is deemed not to be a public record, and shall remain confidential and not to be disclosed to any third party without the express consent of the applicant, unless otherwise required by law. In the event the applicant does not provide this information,the City may conclusively presume that no denial of effective service exists. All of the information noted above shall be submitted to the City within 30 days of the filing of the Denial of Effective Service appeal unless an extension is granted by the Director. 3. The Denial of Effective Service appeal shall be considered concurrently with the Wireless Permit or CUP appeal hearing before the Planning Commission. Prior to the scheduling of the public hearing on the Wireless Permit or CUP appeal,the City Attorney shall be authorized to issue administrative subpoenas to compel production of such documents, testimony and other evidence relevant to the applicant's denial of effective service claims. 09-2009.002/73032 6 Ordinance No. 3934 G. Wireless Communication Facility Standards. The following standards shall apply to all wireless communication facilities: l. Screening. All screening used in conjunction with a wall or roof mounted Wireless Antenna shall be compatible with the architecture of the building or other structure to which it is mounted, including color, texture and materials. All ground or utility mounted facilities shall be designed to blend into the surrounding environment, or architecturally integrated into a building or other concealing structure. 2. Equipment/Accessory Structures. All equipment associated with the operation of the Wireless Antenna, including but not limited to transmission cables, shall be screened in a manner that complies with the development standards of the zoning district in which such equipment is located and Section 230.76. Screening materials and support structures housing equipment shall be architecturally compatible with surrounding structures by duplicating materials and design in a manner as practical as possible. Chain link fencing and barbed wire are prohibited. 3. General Provisions. All Wireless Communication Facilities shall comply with the Huntington Beach Urban Design Guidelines. 4. Building Codes: To ensure the structural integrity of Wireless Communication Facilities, the owners of a Facility shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for facilities that are published by the Electronic Industries Association, as amended from time to time. 5. Co-Location: Co-location of ground mounted facilities shall be required where feasible whenever such a facility is proposed within 1,000 feet of any existing Wireless Antenna. 6. Federal and State Requirements: All Wireless Communication Facilities must meet or exceed current federal and state laws, standards and regulations of the FCC, and any other agency of the federal or state government with the authority to regulate Wireless Communication Facilities. 7. Interference: To eliminate interference, at all times, other than during the 24-hour cure period,the applicant shall comply with all FCC standards and regulations regarding interference and the assignment of the use of the radio frequency spectrum. The applicant shall not prevent the City of Huntington Beach or the countywide system from having adequate spectrum capacity on the City's 800 MHz voice and data radio frequency systems. The applicant shall cease operation of any Wireless Antenna causing interference with the City's facilities immediately upon the expiration of the 24-hour cure period until the cause of the interference is eliminated. 8. Lighting_ All outside lighting shall be directed to prevent"spillage" onto adjacent properties, unless required by the FAA or other applicable authority, and shall be shown on the site plan and elevations. 9. Maintenance: All facilities and appurtenant equipment including landscaping shall be maintained to remain consistent with the original appearance of the Wireless Antenna. Ground mounted facilities shall be covered with anti-graffiti coating. 10. Monitoring: The applicant shall provide a copy of the lease agreement between the property owner and the applicant prior to the issuance of a building permit. 09-2009.002n3032 7 Ordinance No. 3934 11. Signs: The Wireless Antenna shall not bear any signs or advertising devices other than owner identification, certification, warning, or other required seals of signage. (3568-9/02, 12. Landscaping: Landscape planting, irrigation and hardscape improvements may be imposed depending on the location, the projected vehicular traffic, the impact on existing facilities and landscape areas, and the visibility of the proposed Wireless Antenna. Submittal of complete landscape and architectural plans for review and approval by the Directors of Public Works and Planning and Building Departments may be required. 13. Utility greement: If the proposed facility will require electrical power or any other utility services to the site,the applicant will be required to furnish the City's Real Estate Services Manager either a drafted utility franchise agreement between the City of Huntington Beach and the applicant to place those lines in the public right-of-way, or a written statement from the utility company that will be supplying the power or other services, that they accept all responsibility for those lines in the public right-of-way. H. Facilities in the Public Right-of-Way. Any Wireless Communication Facility to be placed over, within, on or beneath the public right-of-way shall comply with the Undergrounding Ordinance (Chapter 17.64 of HBMC). I. Facility Removal. Wireless communication facilities affecting the public view and/or located in areas designated Water Recreation, Conservation, Parks and Shoreline, and Public Right of Ways shall be removed in its entirety within six (6)months of termination of use and the site restored to its natural state. J. Cessation of Operation. 1. Abandonment. Within thirty(30) calendar days of cessation of operations of any Wireless Communication Facility approved under this Section,the operator shall notify the Director in writing. The Wireless Antenna shall be deemed abandoned pursuant to the following sections unless: a. The City has determined that the operator has resumed operation of the Wireless Communication Facility within six (6) months of the notice; or b. The City has received written notification of a transfer of the Wireless Communication Facility. 2. City Initiated Abandonment: A Wireless Antenna that is inoperative or unused for a period of six (6) continuous months shall be deemed abandoned. Written notice of the City's determination of abandonment shall be provided to the operator of the Wireless Antenna and the owner(s) of the premises upon which the antenna is located. Such notice may be delivered in person, or mailed to the address(es) stated on the permit application, and shall be deemed abandoned at the time delivered or placed in the mail. 3. Removal of Abandoned Wireless Antenna: The operator of the Wireless Antenna and the owner(s) of the property on which it is located, shall within thirty (30) calendar days after notice of abandonment is given either (1) remove the Wireless Antenna in its entirety and 09-2009.002/73032 8 Ordinance No. 3934 restore the premises, or(2)provide the Director with written objection to the City's determination of abandonment. a. Any such objection shall include evidence that the Wireless Antenna was in use during the relevant six- (6) month period and that it is presently operational. The Director shall review all evidence, determine whether or not the Facility was properly deemed abandoned, and provide the operator notice of its determination. b. At any time after thirty-one (31) calendar days following the notice of abandonment, or immediately following a notice of determination by the Director, if applicable, the City may remove the abandoned Wireless Antenna and/or repair any and all damage to the premises as necessary to be in compliance with applicable codes. The City may, but shall not be required to, store the removed Antenna(or any part thereof). The owner of the premises upon which the abandoned Antenna was located, and all prior operators of the Antenna, shall be jointly liable for the entire cost of such removal, repair, restoration and/or storage, and shall remit payment to the City promptly after demand thereof is made. The City may, in lieu of storing the removed Wireless Antenna, convert it to the City's use, sell it, or dispose of it in any manner deemed appropriate by the City. SECTION 2. This ordinance shall become effective 30 days after its adoption. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 5t:h day of March , 20 12 . Mayor ATTEST: APPROVED AS TO FORM: V' Y City Clerk Chy Attorney MV !I-)3-t` REVIE D APPROVED: INITIATE WAPROVED: Y11*ager Di ector of Planning and Building 09-2009.002/73032 9 Ord. No. 3934 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS: CITY OF HUNTINGTON BEACH ) I, JOAN L. FLYNN, the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a regular meeting thereof held on February 6, 2012, and was again read to said City Council at a regular meeting thereof held on March 5,2012, and was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council. AYES: Dwyer, Hansen, Carchio, Bohr NOES: Shaw, Harper, Boardman ABSENT: None ABSTAIN: None I,Joan L.Flynn,CITY CLERK of the City of Huntington Beach and ex-officio Clerk of the City Council,do hereby certify that a synopsis of this ordinance has been published in the Huntington Beach Fountain Valley Independent on March 15,2012. -- In accordance with the City Charter of said City ` Joan L. Flynn, City Clerk :' Clerk and ex-officio lerk Senior Deputy City Clerk of the City Council of the City of Huntington Beach, California ATTAC H M E N T #6 093°/ LEGISLATIVE DRAFT Staff Recommendation City of Huntington Beach Zoning Text Amendment No. 09-002 (December 2011) 230.96 Wireless Communication Facilities A. Purpose. T14 purpese of thisThis Section of the Zoning Code is toeneailr-age and f eil t'te wir-eless eemtBuiiieation f4eilities eutside of residential zones and where the�, are invisible to eamply with these •", difieation aftE ao s " te protect 4+e—public safety, general welfare, and quality of life by regulating the location height and physical characteristics and provide for orderly and efficient placement of Wireless Communications Facilities in the City of Huntington Beach. Because of the potential negative aesthetic impacts of Wireless Communications Facilities, including visual blight and diminution of property value, the City endeavors to locate antennas within commercial industrial and other non-residential zones screen them from view, and encourage co-location with other Wireless Communication Facilities. However, the Federal Telecommunications Act specifically 47 U.S.C. Section 332(c)(7), preempts local zoning where a Wireless Facility is necessary to remedy a significant gap in the Wireless Provider's service. Consequently, where the City determines that the Facility does Dot satisfy City planning and zoning standards the Wireless Provider may then choose to establish Federal preemption because (i) a significant gap in wireless coverage exists and(ii) there is a lack of feasible alternative site locations. A myriad of factors are involved in determining if a gap is significant such as: whether the gap affects a commuter highway; the nature and character of the area and the number of potential users affected by the alleged lack of service; whether the signal is weak or nonexistent, and whether the gap affects a commercial district. Consequently, the City will require scientific evidence from an expert in the field demonstrating the existence of a significant gap in sen7ice and a lack of feasible alternative sites. The applicant will be required to pay for the cost of said expert opinion. B. Definitions. For the purpose of this&Section, the following definitions for the following terms shall apply: (3568-9/02) 1. Accessory Structure. Any structure or equipment that is to be located ancillary to an antenna or antennas in the establishment and operation of a wii:eless eemmua4eatiea faeilit -Wireless Communication Facility. (3568-9/02) 2. 2. Co-Location or Co-Located. The location or placement of multiple arr}asWireless Communication Facilities which are either owned or operated by more than one service provider at a single location and mounted to a common supporting structure, wall or building. (3568-9/02) 3. 3—Completely Stealth. Any Wireless Communication Facility. Afit, stea44 f,.;'sty that has been designed to completely screen all aspects of the facility including appurtenances and equipment from public view. Examples of completely stealth 09-2009.002/63261 Page 1 of 12 Item 15. - 10 HB -120- facilities may include, but are not limited to. architecturally screened roof--mounted antennas, fagade mounted antennas treated as architectural elements to blend in with the existing building, gagpeleso church steeples, fire towers, and flag poles and light standards.- of a typical diameter. 4. --4--Ground Mounted Facility. Any wireless antenna that is affixed to a pole, tower or other freestanding structure that is specifically constructed for the purpose of supporting an antenna. (3568-9/02,3779-10/07) 5. ------5—Microwave Communication. The transmission or reception of radio communication at frequencies of a microwave signal (generally, in the 3 GHz to 300 GHz frequency spectrum). (3568-9/02) 6 —6—Modified Facility. An existing Wireless Communication Facility where the antennas and/or supporting structure are proposed to be altered in an way from their existing condition, including like-far-like re lacement but excludin-, co-location. 6.7.Pre-existing Wireless Facility. Any 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 1 �wireless antennas that have not yet been constructed so long as such approval is current and not expired. (3568-9/02) 8. 7. Public Right-of­Wav The area across alon , beneath, in, on over,under,U,on and within the dedicated public alleys, boulevards, courts lanes daces roads, sidewalks, streets, wasPrivate streets with public access easements within the Cit 's boundaries and City owned properties, as they now exist or hereafter will exist. ?.9.Roof Mounted. Any wireless antenna directly attached or affixed to the roof of an existing building, water tank, tower or structure other than a telecommunications tower. (3568-9/02) 10. --g—Stealth E2:t-Techniques. Any wife'-, r,�, i* ate*�M fireless Communication Facility, including any appurtenances and equipment, which is designed to blend into the surrounding environment, * "y riz f � "• '�b�' �`� 1�Z{:V"TCILVU . Examples of ���'�*��� �*�������;�Stealth Technique include, but are not limited to, monopalms/monopines. (3568-9/02) 9.1 1. Utility Mounted. Any wireless antenna mounted to an existing above-ground structure specifically designed and originally installed to support utilities such as but not limited to electrical power lines, cable television lines, telephone lines, non-commercial wireless service antennas, radio antennas, street lighting but not traffic signals, recreational€Facility lighting, or any other utility which meets the purpose and intent of this definition.-(3568-9/02,3779-10/07) - -------4a5 Q;47 ) 4-0.12. Wall Mounted. Any wireless antenna mounted on any vertical or nearly vertical surface of a building or other existing structure that is not specifically constructed for the purpose of supporting an antenna(including the exterior walls of a building, an existing parapet, the side of a water tank, the face of a church steeple, or the side of a freestanding 09-2009.002/63261 Page 2 of 12 HB -121- Item 15. - 11 sign) such that the highest point of the antenna structure is at an elevation equal to or lower than the highest point of the surface on which it is mounted. (3568-9/02,3779-10/07) 44-.13. --11. Wireless Communication Facility or Facility:or Wireless Antenna. An antenna structure and any appurtenant facilities or equipment that transmits electronic waves or is used for the transmission or receipt of signals that are used in connection with the provision of wireless communication service, including, but not limited to digital, cellular and radio service. -C. Applicability. This ordinance shall apply to all Wireless Communication Facilities which are erected, located, placed,zuntni4ed or modified within the City of Huntington Beach � shall be exempt fofl:l these r—e6ulat;ons and g iCl b. -All facilities foi,-A-Nch Bu."11-11ing and Safety -sued building D. Exceptions. The followin�4 Wireless Communication Facilities shall be exempt from this Ordinance. 1. Any LFacility, which is subject to a previously approved and valid eat en - pentitlement, may be modified within the scope of the applicable permit without complying with these regulations and guiders es.-Mod-.1-eat',$}ls. However, modifications outside the scope of the valid e�.,�diti^�T1-1«1-nee r f�*W FeqUille su'llilittalentitlement or any modification to an existing facility that does not have a previously approved and valid entitlement is subject to the requirements of Woifalors nomn��„ this ordinance. additional 2�Any antenna structure that is one meter(39.37 inches) or less in diameter an4that 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 thereo I I /­.6 33. b—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. 44. c.. Any antenna structure that is one meter(39.37 inches) or less in diameter Tr diagonal 09-2009.002/63261 Page 3 of 12 Item 15. - 12 HB -122- __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. 4a54&s� 5. Any antenna structure used by authorized amateur radio stations licensed by the FCC.43�69-9=- 1 E. Process to Install and Operate Wireless Permit ,qun-ti.Communication Facilities. No w; n7, & ,�,�,�,,; .��i^ r Facility shall be installed anywhere in the City without securing either a Wireless Permit or a Conditional Use Permit as required below. 1. Wireless Permit Application '�� ;,-o ' �+;-, -F as;kl The applicant shall apply to �';Obtrusiv--iwuI.—za., as i v ia-c. an&4so4nel-tt�the Planning and Building Department for a Wireless Pep--nit by submitting a completed Wireless Permit Application ("Aiv licatian" and a in« all required fees. The Application shall be in the farm approved by the Director, and at a minimum shall provide the following information:--(a7a-a-a � �' and the r--adius of area Paay be loeated to eli€ ifia-te4 ap-ii-e ,— (377-9-49�974 a_. _2. `tffpa b yPrecise location of the Facility. n:b.Evidence that the Facility is with the surrounding environment or that the &644i,;&-a facility is architecturally integrated into a structure. -4-3-7-7-9-i-G� b--c 3 S6Fea,,;"n of Oa*N) f4,—m4gEvidence that the facility is screened or camouflaged iby existing or proposed topography, vegetation, buildings or other structures as measured from beyond the boundaries of the site at eye level (six feet). c-A Evidence that the massing and location of the proposed facility are consistent with surrounding structures and zoning districts.-4a779-aola.7) d-e.--5----N-oEvidence that no portion of r L� �r �T�at� i'; sect tl7e Faci11ty will encroach over property lines.-4a77_9-a_ot0.7} a7-7-a-a-0/a7} f. '� �-y Pro ert owner authorization ar evidcuce of fee ownership of propertv where the Facilitv will be installed. In the case of City-owned property or any public right-of-way the applicant shall provide a license lease, franchise, or other similar agreement from the City to place any Facility over, within, an, ar beneath City property or right-of-way. 09-2009.002/63261 Page 4 of 12 HB -123- Item 15. - 13 g. Locations of all other Wireless Antennas within 1,000 feet of a proposed ground mounted facility. Co-location of around mounted facilities shall be required where feasible whenever such a facility is proposed within 1.000 feet of any existing Wireless Antenna. h. Any other relevant information to the Polieeas required by the Director of Planning and Building. The Plannin« and Building Department fer-will initially review:-4,37-74--4-cie7) and detennine if the Application is complete. The City may deem the Application incomplete and require re-submittal if any of the above information is not provided. -0 3=uiis:i''c7'-r•=-ti'--c�rti.- —a477 �f -cvac'� -�cadiate(d (i✓RR);—'3T7-9-4-G/0:7-} b. At all tir es-, ot4ei®t , with ii.��Tr-ezcr�.xziS impae b pFoeess shall be Fepeate-El for-every proposed f+eqtteney a 3779-1947} b b on all e. The E. Additional ; n�,,,,;,--A r 2. Director Approval. Following submittal of a complete Application, the City ill detennine whether the Facility may be approved bv the Director or whether a Conditional Use Permit or other entitlement is required. Wireless Permit applications will be 09-2009.002/63261 Page 5 of 12 Item 15. - 14 H B -124- processed based upon the location and type of antennas defined in herein. Although said classifications are assigned at project intake a re-evaluation of antenna classifications may occur at anv Doint in the vrocess including at the time of review by the Director Zoning Administrator, Planning Commission or City Council. A Facility not subject to any other discretionary approval may be administrative) a roved b the Director b issuin a Wireless Permit if it is: a. Co-located on an existing approved Wireless Facility, does not exceed the existing Wireless Facility heights, and employs Stealth Techniques such that the co-located Wireless Facility is compatible with surrounding buildings and land uses; or A modified Facility that : (37744e/a a.b. Or-that _ eomplycon_ implies with the base district height limit fef h up to an additional 10 feet of height as permitted in Section 230.72 and compatible with surrounding buildings and land uses by incorporating stealth techniques; or {a7-7-� b. .._.,Completely stealth fi w'4lies A Facility that complyies with the base district height limit;- r b*YJiR,—plus up to an additional 10 feet of height as ermitted w i*IR"tn *ila offs ng d4s�in Section 230.72, is Com letel Stealth and--(a7-7-� Ce A `eand is not -1 tile site at ye levti rx "m`e by'rixc iet'ring=stealth teehnig&---437-7s a ete�} b.c. Conditional Use Peniiit a ground niounted, eo located, wall, - o f or utility mounted4 tthat-ar-e:7-.--¢377-�. JJA tQ-wh"yn��—Mo �,~'Ti7tTITted;or b t, ttsE;s•. 09-2009.002/63261 Page 6 of 12 HB -125- Item 15. - 15 The Director may require conditions of approval of the Facilit in order to minimize adverse health safety and welfare impacts to the community. A decision of the Director to grant a Wireless Permit shall become final ten (10) dates following the date of the decision unless an appeal to the Planning Commission is filed as provided in Chapter 248 of the Huntington Beach Zoning and Subdivision Ordinance WRKSO- The Director shall issue findings of approval that the Facility meets the above criteria and is not a detriment to the health safety and welfare of the community. 3. Zoning Administrator Approval. In the event the Director determines that the applicant does not meet the requirements for Director approval of a Wireless Permit. then the applicant shall ar)olv for a Conditional Use Permit CUP to the Zoning Administrator pursuant to Chapter 241 of the HBZSO. Notwithstanding any other provisions of the HSZSO, ariv new -ound or utilltv mounted wireless facilities shall be re uired to obtain a CUP. CUP applications shall also include the same information re uired under subsection E.1. The Zoning Administrator may require, as a condition of approval of the Genditionu'l Pe ►nit;CUP that the ni11� ^�'r�inistfa*^i-t ha" applicant minimize significant adverse impacts to the community and public visual resources by incorporating one or more of the following into project design and construction:—¢erg-aeta� i. -a. Completely Stealth installations;-4a77-� } z b. Stealth Techniques; c. Co-location and locating fFacilities within existing building envelopes; ¢a77-,c� a d. Colorization or landscapin /or i-ve.Removal or replacement of 4Tacilities that beee- are obsolete.--fps 4 - :Further conditions of approval of a facility CUP may by e imposed as provided in Chapter 241 of the HBZSO. The Zoning Administrator's decision may be appealed to the Planning Commission in accordance with Chapter 248 of the HBZSO. 4. Design Review. Design review shall be required for any w;ra' n.nunii«i;�== 4e�Wlreless Communication Facilities pursuant to the HBZSO as well as those located on public right-of-ways, —o ; �' ns way and on or within 300 feet of a residential district;-and or use in was de b .* a by the City-oti . 'No. t.wi.thstandigg an other provisions of the HBZSO, design review is not required for - : m ^^*��Wireless Communication Facilities that eo+ffply-with may be approved by the Director pursuant to subsection 4-E.2 (Director Approval above and have all appurtenant facilities and equipment located under�,round or within an existing building or existing enclosure. F. Applicant May Assert Federal Preemption At Time of Appeal To Planning Commission. 09-2009.002/63261 Page 7 of 12 Item 15. - 16 HB -126- I. If the decision on the Wireless Pen-nit or Conditional Use Permit is appealed either b applicant or an a grieved art to the Planning Commission the Applicant may assert that Federal Law preempts the City from den in g the application because denial would effectively prohibit Wireless Service. The applicant shall pay a Denial of Effective Service appeal fee in an amount to be established by City Council Resolution, which amount shall be the estimated cost for the City to retain an independent, qualified consultant to evaluate any technical aspect of a proposed Wireless Communications Facility, including, but not limited to, issues involving whether a significant gala in covera,e exists. A Denial of Effective Service appeal must be submitted prior to the expiration of the appeal period for a Wireless Pennit or Conditional Use Permit. 2. The Director shall establish the form of the Denial of Effective Service appeal. At a minimum the Applicant shall provide the following information as part of its appeal: In order to prevail in establishing a significant gan in coverage claim the applicant shall establish at minim-Lin the followin4 based upon substantial evidence: a. Evidence demonstrating the existence and nature of a significant gap in service in the vicinity of the proposed Facility, including but not limited to whether the «a pertains to residential in-building. commercial in-building coverage, in-vehicle coverage, and/or outdoor coverage. b. Evidence demonstrating that the applicant has pursued other feasible sites for locating the Facility, but that they are unavailable on commercially practicable teens. c. Evidence demonstratinz the radio frequency si-,nal strength transmission requirements and objectives that the applicant has established for the Southern California region, and for the City of Huntim,,ton Beach. d. Radio frequency propa gad tion maps demonstrating actual transmission levels in the vicinity of the proposed Facility site, and any alternative sites considered. e. Radio frequencydive tests demonstrating actual transmission levels in the vicinity of the proposed Facility site, and anv alternative sites considered. f. Reports regarding the applicant's monthly volume of mobile telephone calls completed, not completed, dropped. handed-off, not handed-off, originated and not originated for the signal area to be covered by the proposed Facility. �. Any proprietary information disclosed to the city or the consultant is deemed not to be a public record and shall remain confidential and not to be disclosed to any Lhirdparty without the express consent of the gp licant unless otherwise require by law. In the event the applicant does not provide this information, the City mad conclusively presume that no denial of effective service exists. All of the infornation noted above shall be submitted to the Cit within 30 days of the filing of the Denial of Effective Service appeal unless an extension is ranted b the Director. 3. The Denial of Effective Service appeal shall be considered concurrent] with the Wireless Pen-nit or CUP appeal hearing before the Planning Commission. Prior to the 09-2009.002/63261 Page 8 of 12 HB -127- Item 15. - 17 scheduling of the public hearing on the Wireless Permit or CUP armeal, the City Attorney shall be authorized to issue administrative sub oenas to compel production of such documents, testimony and other evidence relevant to the applicant's denial of effective service claims. G. Wireless Communication Facility Standards:. The following standards shall apply to all wireless communication facilities: --�3779-10/07) —1. A-e a. Fla„.Scree nin . All screening used in conjunction with a wall or roof mounted fa� reless Antenna shall be compatible with the architecture of the building or other structure to which it is mounted, including color, texture and materials. All ground or utility mounted facilities shall be designed to blend into the surrounding environment, or architecturally integrated into a building or other concealing structure. (3568-9/02) —h2. Equipment/Accessory Structures:. All equipment associated with the operation of the f4c-44yWireless Antenna, including but not limited to transmission cables, shall be screened in a manner that complies with the development standards of the zoning district in which such equipment is located.- and Section 230.76. Screening materials and support structures housing equipment shall be architecturally compatible with surrounding structures by duplicating materials and design in a manner as practical as possible. If-ehai-n Chain link is used, then zt i*usi-he—A4n I-eeiztedfencin and ffel fr3cl�i�l�barbed wire are prohibited. (3568-9/02) 3. General Provisions:. All Wireless Communication Facilities shall comply with the Huntington Beach Urban Design Guidelines. (3568-9/02) -- 4. Building Codes: To ensure the structural integrity of;^ffel-ess-cuu � fQ44ticsWireless Communication Facilities, the owners of a(Facility shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for facilities that are published by the Electronic Industries Association, as amended from time to time. (3568-9/02) shall --45. Co-Location: Co-location of u wired rond mounted facilities shall be re where feasible whencver such a facility is proposed within 1,000 feet of any existin Wireless Antenna. 6. Federal and State Requirements: All Wireless Communication Facilities must meet or exceed current federal and state laws standards and regulations of the FCC, and any other agency of the stale-federal or �state government with the authority to regulate 2�k�����sWireless Communication Facilities. (3568-9/02) 7. Interference: To eliminate interference at all tunes other than during the 24-hour cure eriod the applicant shall comply with all FCC standards and re ulations re ardin interference and the assignment of the use of the radio frequency spectrum. The applicant_shall not prevent the City-Qf Huntington Beach or the coun_t_ywide system from hay in adequate s ectnun capacity on the Cit 's 00 MHz.voice and data radio freguei3cv systems=— The ap licant shall cease operation of any Wireless Antenna 09-2009.002/63261 Page 9 of 12 Item 15. - 18 HB -128- causing interference with the Cit 's facilities immediately upon the expiration of the 24- hour cure period until the cause of the interference is eliminated. (3779-10/07) 8. Lighting_ All outside lighting shall be directed to prevent"spillage" onto adjacent properties, unless required by the FAA or other applicable authority, and shall be shown on the site plan and elevations. (3568-9/02,3779-10/07) _-69. Maintenance: All facilities and appurtenant equipment including landscaping shall be maintained to remain consistent with the original appearance of the failit- -Wireless Antenna. Ground mounted facilities shall be covered with anti-graffiti coating. (3568-9/02,3779-10/07) 710. Monitoring: The applicant shall provide a copy of the lease agreement between the property owner and the applicant prior to the issuance of a building permit. —�11. Sig s: The fae lit fireless Antenna shall not bear any signs or advertising devices other than owner identification, certification, warning, or other required seals of signage.— 3568-9/02 3779-10/07 , within, on, — beneath C-4.y 1--t,-.tj shall obta;n a lease of ffanehise f+em the City pFier- -437-7�1 --i0 12. Landscaping: Landscape planting, irrigation and hardscape improvements may be imposed depending on the location, the projected vehicular traffic, the impact on existing facilities and landscape areas, and the visibility of the proposed faeilit- Wireless Antenna. Submittal of complete landscape and architectural plans for review and approval by the Directors of Public Works and Planning and Building Departments may be required. (3779-10/07) 1 i. 13. Utility Agreement: If the proposed facility will require electrical power or any other utility services to the site, the applicant will be required to furnish the City's Real Estate Services Manager either a drafted utility franchise agreement between the City of Huntington Beach and the applicant to place those lines in the public right-of- way, or a written statement from the utility company that will be supplying the power or other services, that they accept all responsibility for those lines in the public right-of-way. 3779-10/07 4-227 H. Facilities in the Public Right-of-Way. Any.. ,Feeseemmu-nioation f eflit -Wireless Communication Facility to be placed over, within, on or beneath the public right-of-way shall comply with the felle inn star a., 4s-.- Undergrounding Ordinance (Chapter 17.64 of HBMC). (3568-9/02, 3779-10/07) a. Any wiFeless eopamunication faeilities to be eenstfucted on or-beneath the publie right of way must obtain an ener-oaehment-peFmilt rmflq 1�ihl_ City an applieant must pfovide doeumentation demonstr-ating that the applicant is a state ffanchised 09-2009.002/63261 Page 10 of 12 HB -129- Item 15. - 19 eabinets, transmission eables but b. All equipinent associated with the oper-ation of a facility, inehiding but not limited to ant nnas, shall be plaeed under-gr-ound in. those poi4ions of the street, sidewalks and publie bghts of wher-e cable , under-gr-ound without pff-epfiate c-ondui e. The b time.facilities loeated within publie rights of way and the installation of facilities within the publie r-ights of way must comply with Title 12 of the Huntington Be Munieipal Code, as the same may be amended from time to (e9/02,-377-9-1=7) El. AN wireless compatimeation faeilities shall be- subjeet to applicable Gity peizfflit and peffflitse ad or eonditional tise pennits, and all applieable fees. Z�aa_om� 2779 10r07) e. Any wir-eless c-oiniflumeation faeflity installed, used or-maintained within the publie be of b , alignment or-width of any publie bin of way, including consti-uction of any subway of viaduct that the Gity May initiate either-thr-ough but not limited to,,-the Of an),r-edevelopment b > eoffinitinity facility district, assessment > area o M2,3779 10 97-) f-. if the facility is attached to a atility pole, the f4eility shall be ivinoved, at no eest to Mar-oh 17, 2007, the Galifemia Supr-etne Gouft, in the ease- eiititled Spring Telephony PGS 'V'. County Of San Diego, will determine whether-Califemia -Public Utilities Cod I'll Or-ovider shall enter- into a with Pending see-king r-esolution of this legal question, any applicant to use the publie fight of way must enter-into a Gity that the fr-anehise fee pa�'inents shall be refunded to the applic-ant and the 4-anchise become null and void if—d —'.— GaLfbam-ia SupFeme Gouit establishes that the pr-ovider-has a state wide 4anehise to install a wif-eless eomnitinj eati oils faOility in the pu-bJi right•e-� --1-3. 1. Facility Removal. a. Wireless communication facilities affecting the public view and/or located in areas designated Water Recreation, Conservation, Parks and Shoreline, and Public Right of Ways shall be removed in its entirety within six (6) months of termination of use and the site restored to its natural state. (3779-10/07) —' -hJ. Cessation of Operation:. I. Abandonment. Within thirty(30) calendar days of cessation of operations of any -cross oommunieation faei4tyWireless Communication Facility approved under this sSection, the operator shall notify the Planning r,epar*.,,o„*Director in writing. The 09-2009.002/63261 Page 11 of 12 Item 15. - 20 HB -130- fac-ilityWireless Antenna shall be deemed abandoned pursuant to the following sections unless: (3568-9/02,3779-10/07) ---1. a. The City has determined that the operator has resumed operation of the :,.-Pies ^^,"m,unieatio, faeility) ireless Communication Facility within six (6) months of the notice; or (3568-9/02,3779-10/07) 2. b. The City has received written notification of a transfer of wiFeless the Wireless Communication Facility. (3568-9/02,3779-10/07) -- e - 2. City Initiated Abandonment: A f-ac-ilitl Wireless Antenna that is inoperative or unused for a period of six (6) continuous months shall be deemed abandoned. Written notice of the City's determination of abandonment shall be provided to the operator of the faclyWireless Antenna and the owner(s) of the premises upon which the faeilityantenna 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. (3568-9/02,3779-10/07) ---d. 3. Removal of Abandoned F-a�Wireless Antenna: The operator of the facility Wireless Antenna and the owner(s) of the property on which it is located, shall within thirty(30) calendar days after notice of abandonment is given either(1) remove the faeilityWireless Antenna in its entirety and restore the premises, or (2) provide the Planning Depart„ entDirector with written objection to the City's determination of abandonment. (3779-10/07) a. Any such objection shall include evidence that the faeiliv ireless Antenna was in use during the relevant six- (6) month period and that it is presently operational. The Director shall review all evidence, determine whether or not the fFacility was properly deemed abandoned, and provide the operator notice of its determination. (3568-9/02,3779-10/07) e. Removal by Gity­ b. At any time after thirty-one (31) calendar days following the notice of abandonment, or immediately following a notice of determination by the Director, if applicable, the City may remove the abandoned faeflityWireless Antenna and/or repair any and all damage to the premises as necessary to be in compliance with applicable codes. The City may,but shall not be required to, store the removed acilityAntenna (or any part thereof). The owner of the premises upon which the abandoned fac-i-lityAntenna was located, and all prior operators of the faoilityAntenna, shall be jointly liable for the entire cost of such removal, repair, restoration and/or storage, and shall remit payment to the City promptly after demand thereof is made. The City may, in lieu of storing the removed faEilio ireless Antenna, convert it to the City's use, sell it, or dispose of it in any manner deemed appropriate by the City. 09-2009.002/63261 Page 12 of 12 xB -131- Item 15. - 21 ATTACHMENT #7 Hn „i_ Item 11. _ 63 PROPOSED HBZSO SECTION 230.96 City of Huntington Beach P-�V I 5r=v Zoning Text Amendment No. 09-002 �—=X I (December 2011) tql—=VV 230.96 Wireless Communication Facilities A. Purpose. This Section of the Zoning Code is to protect public safety, general welfare, and quality of life by regulating the location,height and physical characteristics and provide for orderly and efficient placement of Wireless Communications Facilities in the City of Huntington Beach. Because of the potential negative aesthetic impacts of Wireless Communications Facilities, including visual blight and diminution of property value, the City endeavors to locate antennas within commercial, industrial and other non-residential zones, screen them from view, and encourage co-location with other Wireless Communication Facilities. However, the Federal Telecommunications Act, specifically 47 U.S.C. Section 332(c)(7),preempts local zoning where a Wireless Facility is necessary to remedy a significant gap in the Wireless Provider's service. Consequently,where the City determines that the Facility does not satisfy City planning and zoning standards,the Wireless Provider may then choose to establish Federal preemption because (i) a significant gap in wireless coverage exists, and(ii) there is a lack of feasible alternative site locations. A myriad of factors are involved in determining if a gap is significant, such as: whether the gap affects a commuter highway; the nature and character of the area and the number of potential users affected by the alleged lack of service; whether the signal is weak or nonexistent and whether the gap affects a commercial district. Consequently,the City will require scientific evidence from an expert in the field demonstrating the existence of a significant gap in service, and a lack of feasible alternative sites. The applicant will be required to pay for the cost of said expert opinion. B. Definitions. For the purpose of this Section,the following definitions for the following terms shall apply: (3568-9102) 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. (356&-9102) 2. Co-Location or Co-Located. The location or placement of multiple Wireless Communication Facilities which are either owned or operated by more than one service provider at a single location and mounted to a common supporting structure,wall or building. (3568-9102) I CoLnpletely Stealth. Any Wireless Communication Facility that has been designed to completely screen all aspects of the facility including appurtenances and equipment from public view. Examples of completely stealth facilities may include,but are not Limited to, architecturally screened roof mounted antennas, fagade mounted antennas treated as architectural elements to blend in with the existing building, church steeples, fire towers, and flag poles and light standards of a typical diameter. 09-2009.002/63261 Page I of 9 Item 11. - 64 HB -332- -� 4. Ground Mounted Facility. Any wireless antenna that is affixed to a pole,tower or other freestanding structure that is specifically constructed for the purpose of supporting an antenna. (3568-9102,3779-10107) E 5. Microwave Communication. The transmission or reception of radio communication at frequencies of a microwave signal (generally,in the 3 GHz to 300 GHz frequency Spectrum). (3568-9102) f,J 6. Modified Facility. An existing Wireless Communication Facility where the antennas and/or supporting structure are proposed to be altered in any way from their existing condition, including like-far-like replacement but excluding co-location. {z 7. Pre-existing Wireless Facility. Any Wireless Communication Facility for which a building permit or conditional use permit has been properly issued prior to the effective date of this ordinance, including permitted wireless antennas that have not yet been constructed so long as such approval is current and not expired. (3568-9r02) 8. Public Right-of-Way The area across, along, beneath,in, on, over,under,upon, and within the dedicated public alleys, boulevards, courts, lanes, places,roads, sidewalks, streets,ways, private streets with public access easements within the City's boundaries, and City owned properties, as they now exist or hereafter will exist. 9. Roof Mounted. Any wireless antenna directly attached or affixed to the roof of an existing building, water tank,tower or structure other than a telecommunications tower. (3568-9/02) 10. Stealth Techniques. Any Wireless Communication Facility, including any appurtenances and equipment,which is designed to blend into the surrounding environment. Examples of Stealth Technique include, but are not limited to,monopalms/monopines. (3568-9102) 11. Utility Mounted. Any wireless antenna mounted to an existing above-ground structure specifically designed and originally installed to support utilities such as but not limited to electrical power lines, cable television lines, telephone lines,non-commercial wireless service antennas, radio antennas, street lighting but not traffic signals, recreational Facility lighting, or any other utility which meets the purpose and intent of this definition. (3568-9102,3779-10107) 12. Wall Mounted. Any wireless antenna mounted on any vertical or nearly vertical surface of a building or other existing structure that is not specifically constructed for the purpose of supporting an antenna(including the exterior walls of a building, an existing parapet, the side of a water tank,the face of a church steeple, or the side of a freestanding sign) such that the highest point of the antenna structure is at an elevation equal to or lower than the highest point of the surface on which it is mounted. (3568-9102,3779-10/07) 13. Wireless Communication Facility or Facility or Wireless Antenna. An antenna structure and any appurtenant facilities or equipment that transmits electronic waves or is used for the transmission or receipt of signals that are used in connection with the provision of wireless communication service, including, but not limited to digital, cellular and radio service. C. Applicability. This ordinance shall apply to all Wireless Communication Facilities which are erected, located,placed or modified within the City of Huntington Beach. 09-2009.002/63261 Page 2 of 9 HB -333- Item 11. - 65 D. Exceptions. The following Wireless Communication Facilities shall be exempt from this Ordinance. 1. Any Facility,which is subject to a previously approved and valid entitlement,may be modified within the scope of the applicable permit without complying with these regulations_ However, modifications outside the scope of the valid entitlement or any modification to an existing facility that does not have a previously approved and valid entitlement is subject to the requirements of this ordinance. 2. Any antenna structure that is one meter(39.37 inches)or less in diameter that is designed to receive direct broadcast satellite service, including direct-to-home satellite service for television purposes, as defined by Section 207 of the Telecommunication Act of 1996, Title 47 of the Code of Federal Regulations, and any interpretive decisions thereof. 3. Any antenna structure that is two meters (78.74 inches) or less in diameter located in commercial or industrial zones and is designed to transmit or receive radio communication by satellite antenna. 4. Any antenna structure that is one meter(39.37 inches) or 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. 5. Any antenna structure used by authorized amateur radio stations licensed by the FCC. h� E. Process to Install and Operate Wireless Communication Facilities. No Facility shall be installed anywhere in the City without first securing either a Wireless Permit or a Conditional Use Permit as required below. 1. Wireless Permit Application. The applicant shall apply to the Planning and Building Department for a Wireless Permit by submitting a completed Wireless Permit Application ("Application") and paying all required fees. The Application shall be in the form approved by the Director, and at a minimum shall provide the following information: a. Precise location of the Facility. ¢z. b_ Evidence that the Facility is compatible with the surrounding environment or that the facility is architecturally integrated into a structure. c. Evidence that the facility is screened or camouflaged by existing or proposed topography,vegetation,buildings or other structures as measured from beyond the boundaries of the site at eye level(six feet). d. Evidence that the massing and location of the proposed facility are consistent with surrounding structures and zoning districts. e. Evidence that no portion of the Facility will encroach over property lines. f. Property owner authorization or evidence of fee ownership of property where the Facility will be installed. In the case of City-owned property or any public right-of- 09-2009.002/63261 Page 3 of 9 Item 11. - 66 HB -334- - way,the applicant shall provide a license, lease, franchise, or other similar agreement from the City to place any Facility over,within,on,or beneath City property or right- of-way. g. Locations of all other Wireless Antennas within 1,000 feet of a proposed ground mounted facility. Co-location of ground mounted facilities shall be required where feasible whenever such a facility is proposed within 1,000 feet of any existing Wireless Antenna- h. Any other relevant information as required by the Director of Planning and Building. The Planning and Building Department will initially review and determine if the Application is complete. The City may deem the Application incomplete and require re- submittal if any of the above information is not provided. 2. Director Approval. Following submittal of a complete Application,the City will determine whether the Facility may be approved by the Director or whether a Conditional Use Permit or other entitlement is required. Wireless Permit applications will be processed based upon the location and type of antennas defined in herein. Although said classifications are assigned at project intake, a re-evaluation of antenna classifications may occur at any point in the process including at the time of review by the Director, Zoning Administrator,Planning Commission or City Council. A Facility not subject to any other discretionary approval may be administratively approved by the Director by issuing a Wireless Permit if it is. a. Co-located on an existing approved Wireless Facility, does not exceed the existing Wireless Facility heights,and employs Stealth Techniques such that the co-located Wireless Facility is compatible with surrounding buildings and land uses; or b. A modified Facility that complies with the base district height limit plus up to an additional 10 feet of height as permitted in Section 230.72 and compatible with surrounding buildings and land uses by incorporating stealth techniques; or c. A Facility that complies with the base district height limit plus up to an additional 10 feet of height as permitted in Section 230.72, is Completely Stealth, and is not ground or utility mounted. The Director may require conditions of approval of the Facility in order to minimize adverse health, safety and welfare impacts to the community. A decision of the Director to grant a Wireless Permit shall become final ten(10) days following the date of the decision unless an appeal to the Planning Commission is filed as provided in Chapter 248 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO). The Director shall issue findings of approval that the Facility meets the above criteria and is not a detriment to the health, safety and welfare of the community. 3. Zoning Administrator Approval. In the event the Director determines that the applicant does not meet the requirements for Director approval of a Wireless Permit,then the 09-2009.002/63261 Page 4 of 9 HB -335- Item 11. - 67 applicant shall apply for a Conditional Use Permit(CUP)to the Zoning Administrator pursuant to Chapter 241 of the HBZSO. Notwithstanding any other provisions of the HMZSO, any new ground or utility mounted wireless facilities shall be required to obtain a CUP. CUP applications shall also include the same information required under subsection E.1. The Zoning Administrator may require, as a condition of approval of the CUP that the applicant minimize significant adverse impacts to the community and public visual resources by incorporating one or more of the following into project design and construction: a. Completely Stealth installations; b. Stealth Techniques; c. Co-location and locating Facilities within existing building envelopes; d. Colorization or landscaping to minimize visual prominence; and/or e. Removal or replacement of Facilities that are obsolete. Further conditions of approval of a facility CUP may be imposed as provided in Chapter 241 of the HBZSO. The Zoning Administrator's decision may be appealed to the Planning Commission in accordance with Chapter 248 of the HBZSO. jz 4. Design Review. Design review shall be required for any Wireless Communication Facilities pursuant to the HBZSO as well as those located on public right-of-way and on or within 300 feet of a residential district or use in the City. Notwithstanding any other provisions of the HBZSO, design review is not required for Wireless Communication Facilities that may be approved by the Director pursuant to subsection E.2 (Director Approval) above and have any appurtenant facilities and equipment located underground or within an existing building or existing enclosure. t� F. Applicant May Assert Federal PregM tion At Time of Appeal To Planning Commission 1. If the decision on the Wireless Permit or Conditional Use Permit is appealed(either by applicant or an aggrieved party) to the Planning Commission,the Applicant may assert that Federal Law preempts the City from denying the application because denial would effectively prohibit Wireless Service. The applicant shall pay a Denial of Effective Service appeal fee in an amount to be established by City Council Resolution, which amount shall be the estimated cost for the City to retain an independent, qualified consultant to evaluate any technical aspect of a proposed Wireless Communications Facility, including,but not limited to, issues involving whether a significant gap in coverage exists. A Denial of Effective Service appeal must be submitted prior to the expiration of the appeal period for a Wireless Permit or Conditional Use Permit. 2. The Director shall establish the form of the Denial of Effective Service appeal. At a minimum, the Applicant shall provide the following information as part of its appeal: In order to prevail in establishing a significant gap in coverage claim the applicant shall establish at minimum the following based upon substantial evidence: 09-2009.002/63261 Page 5 of 9 Item 11. - 68 HB -336- a. Evidence demonstrating the existence and nature of a significant gap in service in the vicinity of the proposed Facility,including but not limited to whether the gap pertains to residential in-building,commercial in-building coverage, in-vehicle coverage, and/or outdoor coverage. b. Evidence demonstrating that the applicant has pursued other feasible sites for locating the Facility, but that they are unavailable on commercially practicable terms. c. Evidence demonstrating the radio frequency signal strength transmission requirements and objectives that the applicant has established for the Southern California region, and for the City of Huntington Beach_ d. Radio frequency propagation maps demonstrating actual transmission levels in the vicinity of the proposed Facility site, and any alternative sites considered. e. Radio frequency drive tests demonstrating actual transmission levels in the vicinity of the proposed Facility site, and any alternative sites considered. f Reports regarding the applicant's monthly volume of mobile telephone calls completed,not completed, dropped,handed-off,not handed-off, originated and not originated for the signal area to be covered by the proposed Facility. g. Any proprietary information disclosed to the city or the consultant is deemed not to be a public record, and shall remain confidential and not to be disclosed to any third party without the express consent of the applicant,unless otherwise required by law. In the event the applicant does not provide this information, the City may conclusively presume that no denial of effective service exists. All of the information noted above shall be submitted to the City within 30 days of the filing of the Denial of Effective Service appeal unless an extension is granted by the Director. 3. The Denial of Effective Service appeal shall be considered concurrently with the Wireless Permit or CUP appeal hearing before the Planning Commission. Prior to the scheduling of the public hearing on the Wireless Permit or CUP appeal,the City Attorney shall be authorized to issue administrative subpoenas to compel production of such documents, testimony and other evidence relevant to the applicant's denial of effective service claims. R G. Wireless Communication Facility Standards. The following standards shall apply to all wireless communication facilitiesC3779-iom� 1. Screening. All screening used in conjunction with a wall or roof mounted wireless Antenna shall be compatible with the architecture of the building or other structure to which it is mounted, including color,texture and materials. All ground or utility mounted facilities shall be designed to blend into the surrounding environment, or architecturally integrated into a building or other concealing structure. (3568-W02) 2. Equipment/Accessory Structures. All equipment associated with the operation of the Wireless Antenna, including but not limited to transmission cables, shall be screened in a manner that complies with the development standards of the zoning district in which such equipment is located and Section 230.76. Screening materials and support structures 09-2009,002/63261 Page 6 of 9 HB -337- Item 11. - 69 F-- housing equipment shall be architecturally compatible with surrounding structures by duplicating materials and design in a manner as practical as possible. Chain link 12 fencing and barbed wire are prohibited. (3566-9/02) 3. General Provisions. All Wireless Communication Facilities shall comply with the Huntington Beach Urban Design Guidelines. (3568-9/02) 4. Building Codes: To ensure the structural integrity of Wireless Communication Facilities, the owners of a Facility shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for facilities that are published by the Electronic Industries Association, as amended from time to time. (3568-9/02) }.� 5. Co-Location: Co-location of ground mounted facilities shall be required where feasible whenever such a facility is proposed within 1,000 feet of any existing Wireless Antenna. 6. Federal and State Requirements: All Wireless Communication Facilities must meet or exceed current federal and state laws, standards and regulations of the FCC, and any other agency of the federal or state government with the authority to regulate Wireless Communication Facilities. (3568-9ro2) 7. Interference: To eliminate interference,at all times, other than during the 24-hour cure period,the applicant shall comply with all FCC standards and regulations regarding interference and the assignment of the use of the radio frequency spectrum. The applicant shall not prevent the City of Huntington Beach or the countywide system from having adequate spectrum capacity on the City's 800 MHz voice and data radio frequency systems. The applicant shall cease operation of any Wireless Antenna causing interference with the City's facilities immediately upon the expiration of the 24-hour cure period until the cause of the interference is eliminated. (3779-10/07) S- Lighting: All outside lighting shall be directed to prevent"spillage" onto adjacent properties, unless required by the FAA or other applicable authority,and shall be shown on the site plan and elevations. (3568-9102,3779-10107) z 9. Maintenance: All facilities and appurtenant equipment including landscaping shall be maintained to remain consistent with the original appearance of the Wireless Antenna. Ground mounted facilities shall be covered with anti-graffiti coating. (3568-9102,3779-10/07) 10. Monitoring: The applicant shall provide a copy of the lease agreement between the property owner and the applicant prior to the issuance of a building permit. 11. S__.igns The Wireless Antenna shall not bear any signs or advertising devices other than owner identification, certification, warning, or other required seals of signage. (3568-9/02, 3779-10/07) 12. Landscaping: Landscape planting, irrigation and hardscape improvements may be imposed depending on the location, the projected vehicular traffic, the impact on existing facilities and landscape areas, and the visibility of the proposed Wireless Antenna. Submittal of complete landscape and architectural plans for review and approval by the Directors of Public Works and Planning and Building Departments may be required. (3 77 9-1 010 7) F 13. UtilitY Agreement If the proposed facility will require electrical power or any other utility services to the site,the applicant will be required to furnish the City's Real Estate 09-2009.002/63261 Page 7 of 9 Item 11. - 70 HB -338- ` Services Manager either a drafted utility franchise agreement between the City of Huntington Beach and the applicant to place those lines in the public right-of-way, or a written statement from the utility company that will be supplying the power or other services,that they accept all responsibility for those lines in the public right-of-way. (3779- 10107) H. Facilities in the Public Right-of-Way. Any Wireless Communication Facility to be placed over, within, on or beneath the public right-of-way shall comply with the Undergrounding Ordinance(Chapter 17.64 of HBMC). (3568-9102, 3779-10/07) 1. Facility Removal. Wireless communication facilities affecting the public view and/or located in areas designated Water Recreation., Conservation,Parks and Shoreline, and Public Right of Ways shall be removed in its entirety within six(6)months of termination of use and the site restored to its natural state. (3779-10107) J. Cessation of Operation. 1. Abandonment. Within thirty(30) calendar days of cessation of operations of any Wireless Communication Facility approved under this Section,the operator shall notify the Director in writing. The Wireless Antenna shall be_deemed abandoned pursuant to the following sections unless: (3568-9102,3779-10/07) a. The City has determined that the operator has resumed operation of the Wireless Communication Facility within six(6)months of the notice; or (3568-9102,3779-10107) b. The City has received written notification of a transfer of the Wireless Communication Facility. (3568-9102,3779-10107) 2. City lnitiated Abandonment: A Wireless Antenna that is inoperative or unused for a period of six(6) continuous months shall be deemed abandoned. Written notice of the City's determination of abandonment shall be provided to the operator of the Wireless Antenna and the owner(s) of the premises upon which the antenna is located. Such notice may be delivered in person, or mailed to the address(es) stated on the permit application, and shall be deemed abandoned at the time delivered or placed in the mail. (3568-9102,3779- 10/07) 3. Removal of Abandoned Wireless Antenna: The operator of the Wireless Antenna and the owner(s) of the property on which it is located, shall within thirty(30) calendar days after notice of abandonment is given either(1) remove the Wireless Antenna in its entirety and restore the premises, or(2)provide the Director with written objection to the City's determination of abandonment. (3779-10f07) a. Any such objection shall include evidence that the Wireless Antenna was in use during the relevant six-(6)month period and that it is presently operational. The Director shall review all evidence, determine whether or not the Facility was properly deemed abandoned, and provide the operator notice of its determination. (3568-9102, 3779-10107) b. At any time after thirty-one(31) calendar days following the notice of abandonment, or immediately following a notice of determination by the Director, if applicable, the City may remove the abandoned Wireless Antenna and/or repair any and all damage to the premises as necessary to be in compliance with applicable codes. The City may,but shall not be required to, store the removed Antenna(or any part thereof). The owner of the premises upon which the abandoned Antenna was located, and all 09--2009.002/63261 Page S of 9 1113 -339- Item 11. - 71 prior operators of the Antenna, shall be jointly liable for the entire cost of such removal,repair, restoration and/or storage, and shall remit payment to the City promptly after demand thereof is made. The City may,in lieu of storing the removed Wireless Antenna, convert it to the City's use, sell it, or dispose of it in any manner deemed appropriate by the City. 09-2009.002/63261 Page 9 of 9 Item 11. - 72 HB -340- ATTACHMENT #8 Hu -341- Item 11 . - 73 14C, — NO G+-sAN&t-- 5. The prices of items sold from a cart or kiosk must appear in a prominent,visible locatipa in legible characters.The price list size and location shall be reviewed and approve y the Planning Director. (3249-6195;3525-2102) 6. The sale of alcoholic beverages shall be prohibited. (3249-6/95) 7. The number of employees at a cart or kiosk shall be limited to a imam of two(2) persons at any one time. (3249-6/95) 8. Fire extinguishers may be required at the discretion o e Fire Department. (3249-6r95) 9. All cart and kiosk uses shall be self contained r water, waste, and power to operate. (3249-6/95) 10.A cart or kiosk operator shall prov' e a method approved by the Planning Director for disposal of business related w es. (3249-6195,3525-2/02) D. Parking.Additional par ' ay be required for cart or kiosk uses by the Planning Director. (3249-6195,3525-2/02) E. Review-Revoc on. The Planning Department shall conduct a review of the cart or kiosk operation a e end of the fast six(6) month period of operation.At that time, if there has been a ation of the terms and conditions of this section or the approval,the approval shall be c idered for revocation. (3249-6/95;3525-2/02) eigghborhood Notification. Pursuant to Chapter 241- (3525-2102,3710-6105) 230.96 Wireless Communication Facilities A. Purpose. The purpose of this Section is to encourage and facilitate wireless communications throughout the City,while preventing visual clutter by locating wireless communication facilities outside of residential zones and where they are invisible to pedestrians, and co- located with other facilities.All wireless communication facilities shall comply with these regulations with regard to their location,placement, construction,modification and design to protect the public safety, general welfare, and quality of life in the City of Huntington.Beach. (3779-1 v07) }•[G B. Definitions. For the purpose of this section,the following definitions for the following terms shall apply- (3568-9102) 1. Accessory Structure. Any structure or equipment that is to be located ancillary to an antenna or antennas in the establishment and operation of a wireless communication. facility. (3568-9/m) 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. (3563-9ro2) 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. (3568-9/02,3779-10107) Huntington Beach Zoning and Subdivision ordinance Chapter 230 Page 51 of 58 12/15/10 Item 11. - 74 HB -342- G 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 anterma. (3558-9M2,3779-10107) 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). (3558-9/02) 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. (3568-9/02) l�1L� 7. Roof Mounted. Any wireless antenna directly attached or affixed to the roof of an existing building,water tank,tower or structure other than a telecommunications tower. (3568-9102) S. Stealth Facility or Techniques. Any wireless communication facility,which is designed to blend into the surrounding environment,typically, one that is architecturally integrated into a building or other concealing structure. See also definition of completely stealth facility. (356a-9/02) f1,L 9. Utility Mounted. Any wireless antenna mounted to an existing above-ground structure specifically designed and originally installed to support utilities such as but not limited to electrical power lines, cable television lines, telephone lines,non-commercial wireless service antennas, radio antennas, street lighting but not traffic signals, recreational facility lighting, or any other utility which meets the purpose and intent of this definition. (3568-9102,37 7 9-1 0107) 10. Wall Mounted. Any wireless antenna mounted on any vertical or nearly vertical surface of a building or other existing structure that is not specifically constructed for the purpose of supporting an antenna(including the exterior walls of a building, an existing parapet, the side of a water tank,the face of a church steeple, or the side of a freestanding sign) such that the highest point of the antenna structure is at an elevation equal to or lower than the highest point of the surface on which it is mounted. (3568-9102,3779-10107) 11. Wireless CoM unication Facility or Facility. Au antelana structure and any appurtenant facilities or equipment that transmits electronic waves or is used for the transmission or receipt of signals that are used in connection with the provision of wireless communication service, including,but not limited to digital,cellular and radio service. (3568-9102,377 9-1 010 7) C. Applicability. 1. All wireless communication facilities which are erected, located, placed, constructed or modified within the City of Huntington Beach shall comply with these regulations provided that: (356s-9102,3779-10/07) Gi a_ All facilities, for which permits were issued prior to the effective date of this section, shall be exempt from these regulations and guidelines. (356s-9/02,3779-10/07) b. All facilities for which Building and Safety issued building permits prior to the effective date of section 230.96 shall be exempt from these regulations and guidelines, unless and until such time as subpar ,raph(2)of this section applies. (3568-9102) Huntington Beach Zoning and Subdivision Ordinance Chapter 230 Page 52 of 58 12/15/10 HB -343- Item 11. - 75 c. 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. Modifications outside the scope of the valid conditional use permit will require submittal of a Wireless Permit application. (3568-9102,3779-10/07) z 2. The following uses shall be exempt from the provisions of section 230.96 until pertinent federal regulations are amended or eliminated. See Section 230.80 (Antennae) for additional requirements. (3568-9102,3779-IM7) a. Any antenna structure that is one meter(39.37 inches) or less in diameter and is designed to receive direct broadcast satellite service, including direct-to-home satellite service for television purposes, as defined by Section 207 of the Telecommunication Act of 1996, Title 47 of the Code of Federal Regulations, and any interpretive decisions thereof issued by the Federal Communications Commission (FCC). (3568.9/02) �.G b. Any antenna structure that is two meters (78.74 inches) or less in diameter located in commercial or industrial zones and is designed to transmit or receive radio communication by satellite antenna. (3568-9102) c. 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 Iot. (3568-9/ m) p d. Any antenna structure that is designed to receive radio broadcast transmission. (3568-9/02) �AG e. Any antenna structure used by authorized amateur radio stations licensed by the FCC. (3568-9/02) f 2- D. Wireless Permit Required. No wireless communication facility shall be installed anywhere in the City without submission of a Wireless Permit Application that demonstrates that the antenna is located in the least obtrusive location feasible so as to eliminate any gap in service and also includes the following information: (3779-1o/07) p 1. Demonstrate existing gaps in coverage, and the radius of area from which an antenna may be located to eliminate the gap in coverage. (3779-10/07) Iz- 2. Compatibility with the surrounding environment or that the facilities are architecturally integrated into a structure. (3779-10107) 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). (37 7 9-1 010 7) 4. Massing and location of the proposed facility are consistent with surrounding structures and Zoning districts. (3779-10/07) 5. No portion of a wireless communication facility shall project over property fines. (377 9-1 0107) D 6. Interference: To eliminate interference,the following provisions shall be required for all wireless communication facilities regardless of size: (377s-1 OW) _ Huntington Beach Zoning and Subdivision Ordinance Chapter 230 Page 53 of 58 12/15/10 Item 11. - 76 HB -344- p a. Prior to issuance of a building permit,the applicant shall submit the following p information to the Police Department for review. (3779-10ro7) i. All transmit and receive frequencies; (377s-1 ao7) ii. Effective Radiated Power(ERP); (3779-10/07) iii. Antenna height above ground, and (3779-10107) iv. Antenna pattern,both horizontal and vertical(E Plane and H Plane). (3779-10107) 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- (37 79-1 010 7) ]7 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 Sherifr 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 (3779-10107) 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. (3779-1 m7) 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. (3779-1=7) E. Additional 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: (3779-10/07) a. Co-located with approved facilities at existing heights or that comply with the base district height limit for modified facilities,and compatible with surrounding buildings and land uses by incorporating stealth techniques; or (3779-1oro7) b. Completely stealth facilities that comply with the base district height limit;or (3779-10107) c. Facilities in non-residential districts that are in compliance with the maximum building height permitted within the zoning district; and (3779-1v07) 17 i. Screened from view and not visible from beyond the boundaries of the site at eye level(six feet); or (3779-10/07) ii. Substantially integrated with the architecture of the existing building or structure to which it is to be mounted; or (3779-10107) Huntington Beach Zoning and Subdivision Ordinance Chapter 230 Page 54 of 58 12l15110 HB -345- Item 11. - 77 :7 iii. Designed to be architecturally compatible with surrounding buildings and land uses by incorporating stealth techniques. (3779-10/07) FZ 2. Following submission of a Wireless Permit Application, a Conditional Use Permit approval by the Zoning Administrator shall be required for all proposed wireless communication facilities (including but not limited to ground mounted, co-located,wall, roof or utility mounted)that are: (3779-1=7) p a. Exceeding the maximum building height permitted within the zoning district; or b.' Visible from beyond the boundaries of the site at eye level(six feet); or c. Not substantially integrated with the architecture of the existing building or structure to which it is to be mounted; or d. Not designed to be architecturally compatible with surrounding buildings and land uses. e. 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: (377g-1=7) L Stealth installations; (3779-10/07) ii. Co-location and locating facilities within existing building envelopes; (3779-10107) iii. Minimizing visual prominence through colorization or landscaping; (3779-1 m7) iv. Removal or replacement of facilities that become obsolete. (3779-10/07) 3. Design review shall be required for any wireless communication facilities located in redevelopment areas, on public right-of-ways, in OS-PR and PS zones, in areas subject to specific plans, on or within 300 feet of a residential district,and in areas designated by the City Council. Design review is not required for wireless communication facilities that comply with subsection 1. F. Facility Standards: The following standards apply to all wireless communication facilities: (3779-10/07) 1_ Aesthetics: a. Facili All screening used in conjunction with a wall or roof mounted facility shall be compatible with the architecture of the building or other structure to which it is mounted, including color,texture and materials. All ground mounted facilities shall be designed to blend into the surrounding environment, or architecturally integrated into a building or other concealing structure. (3588-9/o2) 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. (35e8-9/02) C. General Provisions: All Wireless Communication Facilities�SkAll spwly yidb 4eL. Huntington Beach Urban Design Guidelines. (3568-9rog) Huntington Beach Zoning and Subdivision Ordinance Chapter 230 Page 55 of 58 12115/10 Item 11. - 78 HB -346- PL- 2. Building Codes: To ensure the structural integrity of wireless communication facilities, t the owners of a facility shall ensure that it is maintained in compliance with standards contained in applicable state or local building codes and the applicable standards for facilities that are published by the Electronic Industries Association,as amended from time to time. (3568-9102) 3. Conditions of Approval: Acceptance of conditions by the applicant and properly owner shall be ensured by recordation of the conditions on the properly title. (3568-9102) 12- 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. (356a-9102) k-I-5. Lighting All outside lighting shall be directed to prevent"spillage"onto adjacent properties,unless required by the FAA or other applicable authority, and shall be shown on the site plan and elevations. (3568-9102,3779-10107) 6. Maintenance: All facilities and appurtenant equipment including landscaping shall be maintained to remain consistent with the original appearance of the facility. Ground mounted facilities shall be covered with anti-graffiti coating. (3568-9102,3779-10ro7) 7. Morutori Z: For all wireless communication facilities,the applicant shall provide a copy of the lease agreement between the property owner and the applicant prior to the issuance of a building permit. (3568-9102,3779-10,07) 8. Ste_ The facility shall not bear any signs or advertising devices other than owner identification, certification,warning, or other required seals of signage. (3568-9,102,37 7 9-1 010 7) 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. (3779-10107) 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 maybe required. (3779-10/07) t. (--11.Utility Agreement: If the proposed facility will require electrical power or any other utility services to the site,the applicant will be required to furnish the City's Real Estate Services Manager either a drafted utility franchise agreement between the City of Huntington Beach and the applicant to place those lines in the public right-of-way, or a written statement from the utility company that will be supplying the power or other services,that they accept all responsibility for those lines in the public right-of-way. (3770,10107) 17- 12.Facilities in the Public Rip-ht-of Way. Any wireless communication facility to be placed over, within, on or beneath the public right-of-way shall comply with the following standards: (3568-9102,3770,10107) a. Any wireless communication facilities to be constructed on or beneath the public right-of-way must obtain an encroachment permit from the City and the applicant must provide documentation demonstrating that the applicant is a state-f chised telephone corporation exempt from local franchise requrrenat,. /��, s Huntington Beach Zoning and Subdivision Ordinance Chapter 230 Page 56 of 58 12/15/10 HB -347- Item 11. - 79 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. (&%8-9/OZ 3 79-10107) c. The City Engineer shall approve the location and method of construction of all facilities located within public rights-of-way and the installation of facilities within the public rights-of-way must comply with Title 12 of the Huntington Beach Municipal Code, as the same may be amended from time to time. (3568-9102, 3779-10107) 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. (3563-9102,3779-10107) e. Any wireless communication facility installed,used or maintained within the public D 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- 9102,3779-10/07) £ 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. (3568-9102,3779-10/07) g. The service provider shall enter into a franchise agreement with the City. As of March 17,2007,the California Supreme Court, in the case entitled Spring Telephony PCS v.County of San Diego,will determine whether California Public Utilities Code § 7901 grants a state-wide franchise to use the public rights-of-way for the purpose of installation of wireless communications facilities. Pending resolution of this legal question, any applicant seeking to use the public right-of-way must enter into a City franchise to install wireless communications facilities_ The franchise shall provide that the franchise fee payments shall be refunded to the applicant and the franchise become null and void if and when the California Supreme Court establishes that the provider has a state-wide franchise to install a wireless communications facility in the public right-of-way. (3568-9102,3779-10,W) 13. Facility Removal. NL a. Wireless communication facilities affecting the public view and/or located in areas designated Water Recreation, Conservation, Parks and Shoreline, and Public Right of Ways shall be removed in its entirety within six(6)months of termination of use and the site restored to its natural state- (3779-1(1o7) fib. Cessation of Operation: Within thirty(30) calendar days of cessation of operations of any wireless communication facility approved under this section,the operator shall notify the Planning Department in writing. The facility shall be deemed abandoned pursuant to the following sections unless: (3568-91()2,3779-10/07) 1, The City has determined that the operator has resumed operation of the wireless communication facility within six(6)months of the notice; or (3s68-9ro2,3779-10/07) Huntington Beach Zoning and Subdivision Ordinance Ghapter 230 page 57 of 58 t2115/10 Item 11. - 80 HB -348- 2. The City has received written notification of a transfer of wireless communication operators. (3568-9/02,3779-10107) 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. (3568-9102,3779-10107) 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 in its-entirety and restore the premises,or(2)provide the Planning Department with written objection to the City's determination of abandonment. (3779-10107) 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. (356&-9/02,3779-im7) e. Removal by City At any time after thirty-one(31)calendar days following the notice of abandonment, or immediately following a notice of determination by the Director, if applicable,the City may remove the abandoned facility and/or repair any and all damage to the premises as necessary to be in compliance with applicable codes. The City may,but shall not be required to, store the removed facility(or any part thereof). The owner of the premises upon which the abandoned facility was located, and all prior operators of the facility, shall be jointly liable for the entire cost of such removal,repair,restoration and/or storage, and shall remit payment to the City promptly after demand thereof is made. The City may, in lieu of storing the removed facility, convert it to the City's use, sell it, or dispose of it in any manner deemed appropriate by the City. (3568-9/02,3779-1ao7) Huntington Beach Zoning and subdivision OTfflnance Chapter 230 Page 58 of 58 12/15/10 xB -349- Item 11. - 81 ATTAC H M E N T #9 Item 11 . - 62 nB isn z �S ilmwk, PA., 1"JAP AA11, 00 Sol opt mv NO 10, AI "le 'A A";If, Won 7`9 k �IA 7T UP NIP A vw�A-IMF i;l L'I"I'll-1,11"I'� 11,101111"7"1" �L r :s q� IS Is cx) P5 r,r% Dr;-Aft �krdess Ord' (1, CUP D� �ol Effect�vn; Ps .......... A, M I MIN, ME M�,,J NA A —14 q p,� 'n MI P, "21, AW ATTACHMENT # 10 He -353- Item 11. - 85 T- a,mprzes c"f De,s i� n S, Zl� Syr STEAL Thl FA;ems ILMNE'� Ins.: ry All nn a as x -Qt . � NO �\ "fYTal 4 f _ �, (� 00, � b< 3 CY t' rf 1 Y ..� ME 3 a' � All Rk A. 21, k I�pp fi _ y -ON MR. v r � '0 Y1�i NF, x - t Y v 4 N \ 4 � 9i „ a x xr > v -� a r . � IF �. OF r �' ATTACHMENT # 11 Item 11. - 86 iiB ,. s Z. CITY � � H Of Interdepartmental Commaacation "s TO: CHAIR AND MEMBERS OF THE PLANNING COMMCSSION FROM: JENNIFERMcGRATH, City Attorney DATE: November 14, 2011 SUBJECT: Proposed Revisions to the City's Wireless Communications Ordinance The City Attorney's Office has been working closely with staff to revise the City's Wireless Communications Facilities Ordinance following City Council direction. After many revisions and meetings it was determined that a major overhaul of the ordinance was necessary. Prior to placing the matter on Commission agenda, the draft ordinance was circulated with the Wireless Industry for comment. The comments received from the Wireless Industry representatives are based primarily upon legal-issues regarding the Federal Telecommunications Act ("TCA"), and California Public Utilities Code Section 7901. The comments are summarized in the attached Matrix. This memo provides a brief summary of the law, the major revisions to the ordinance and addresses comments made by the Wireless Industry representatives. I. Summary of Authority to Regulate Wireless Antennas The Federal Telecommunications Act (TCA) "preempts" or supersedes local regulations with regard to certain wireless communications issues. First, TCA Section 253(a) preempts any local regulation that "prohibits or has the effect of prohibiting" mobile phone service. Second, TCA Section 332 authorizes wireless companies to challenge in Federal Court the denial of any local permit to install a wireless antenna. Initially, the Ninth Circuit cases struck down zoning ordinances requiring discretionary permits to install wireless antennas. These cases culminated in a decision entitled Sprint Telephony v. County of San .Diego (9th Cir. 2007) 490 F.3d 700, where the Ninth Circuit struck down any application of a conditional use permit("CUP")requirement to wireless antennas.I In 2008, the Ninth Circuit reversed the previous decisions and approved the use of CUPs. (Sprint Telephony, 543 F.3d 571.) The Ninth Circuit held that a zoning board could"exercise its discretion to balance the competing goals" of encouraging mobile phone service and other valid public goals, such as safety and aesthetics." (543 F.3d at 580.) The Sprint Telephony Court 1 Based upon the Sprint decision,in 2007,NextG successfully sued Huntington Beach in Federal Court and obtained a preliminary injunction allowing it to install one-half of its proposed 15 antenna DAS. Later, when Sprint was reversed, so was the injunction,leading to the still pending litigation between the City and NextG before the CPUC and.in State Court. 09-2009.002n2833 HB -357- Item 11. - 89 Chair and Members of the Planning Commission Proposed Revisions to the City's Wireless Communications Ordinance November 14,2011 Page 2 concluded that a zoning ordinance would be invalid on its face only if it prohibited all antennas, or limited them to so few zones that service was effectively prohibited. (543 F.3d at 580.). As a practical matter, this means that the City is free to regulate wireless antennas based upon aesthetics, such as through camouflaging requirements, setbacks, and limiting the height of antennas. While the City may require CUP's the Ninth Circuit has set forth a two-part, fact-based test to determine whether the denial of a CUP for a specific antenna is valid: 1. Does the denial of a CUP prevent the wireless provider from closing a "significant gap"in mobile phone coverage? 2. Are there no other feasible alternative locations that would meet the City's objectives in denying the first site? (MetroPCS, Inc. v. City and County of San Francisco (9th Cir. 2005) 400 F.3d 715, 731.) If an applicant can demonstrate the above two factors the City's discretion is removed and the City may not deny a CUP to install a wireless facility. Federal law clearly prohibits the City from denying a company from citing wireless facilities based upon the potential health effects of the radio frequency emissions. Courts have said that the City must ignore evidence including public comments based upon dangers of radio frequencies (above threshold levels). Instead, the City must make findings based upon substantial evidence in the record that denial is because of aesthetics, safety or other valid grounds. IL Four Major Revisions to the Ordinance The first major revision is that the Director of Planning and Building ("Planning Director" or "Director") may administratively approve only co-locations, modifications to and antennas that are "Completely Stealth;" that is, completely screened from public view (such as an architecturally screened roof mounted antenna.) (Section 230.96 (B)(2), (E)(2)(c).) A CUP is required for all other antennas, including any new ground or utility mounted antennas. (Section 230.96(E)(3).) This is a significant change, because the City has reduced the class of antennas that may be administratively approved without notice to surrounding property owners. The second major revision is that a Wireless Permit will no longer be required for all antennas. The Wireless Permit will only be required where a CUP is not necessary. The third major revision is that applicants will no longer have to initially demonstrate that the antenna is necessary to fill an existing gap in service and is in the least obtrusive location. As revised, the City will evaluate the application according to the traditional standards for all CUPS, including whether the use will not be detrimental to the general welfare of persons residing in the -- --W 002I7n33 .._� Item 11. - 90 HB -358- Chair and Members of the Planning Commission Proposed Revisions to the City's Wireless Communications Ordinance November 14, 2011 Page 3 vicinity, nor detrimental to the value of the property and improvements in the neighborhood. (Section 241.10(A).) The fourth major revision is if the antenna is approved, but appealed by a third party, or denied, and appealed by the applicant, then the applicant may file a Denial of Effective Service Appeal. This appeal will be heard by the Planning Commission, subject to appeal to the City Council. (Section 230.96(F).) This appeal would allow an applicant to assert that the City must approve the application otherwise the applicant cannot close a "significant gap" effectively prohibiting wireless service. A separate appeal fee will be used by the City to hire a consultant to review and verify if a proposed antenna is needed to fill an existing gap in service and if it is located in the least obtrusive location feasible so as to eliminate a gap in service. (Section 230.96(F.1).) III. Industry Objections 1. Regulation of Wireless Facilities in the Public Right-of-Way. NextG and Verizon object to application of the Wireless Ordinance to antennas to be located in the PROW. Essentially, the companies argue that California Public Utilities Code Sections 234(a) and 7901 preempt local regulation of wireless facilities in the City right-of-way. To date, there are no California cases settling this dispute and NextG and the City are currently litigating these issues. City of Huntington Beach v. California Public Utilities Commission, Court of Appeal Case No. G044796. In addition, NextG has sued the City over its current Wireless Ordinance in NextG v. City of Huntington Beach. Currently, this second State Court suit is stayed, while the Section 7901 question is resolved in the Court of Appeal. It should be noted that the CPUC took no action to preempt the City's Wireless Ordinance, and consequently, it remains in place. Further, the CPUC General Order 159 requires that companies like Verizon obtain local land use approval in order to install their antennas anywhere in the City. 2. Denial of Effective Service Appeal Verizon, T-Mobile and NextG object to the Denial of Effective Service Appeal. They each argue that only a Federal Court may determine if the denial of the antenna constitutes effective prohibition of service, and that the provider should not be required to pay for a consultant to aid the City in this determination. Although Long Beach and a few other cities have adopted similar procedures, to date, no Court has determined if Federal law preempts the City in this regard_ The City Attorney believes the procedure is valid,particularly given that as a general rule,there is a presumption against Federal preemption of City zoning regulations. (New York SHSA Ltd. Partnership v. Town of Clarkstown, (2nd Cir. 2010) 612 F.3d 97, 104_) 09-2.009.002J72833 HB -359- Item 11. - 91 Chair and Members of the Planning Commission Proposed Revisions to the City's Wireless Communications Ordinance November 14, 2011 Page 4 The principal criticism of Ca1WA, the industry trade group, to the draft Wireless Ordinance is that it does not strike the proper balance between "aesthetic regulation" and a "robust and ubiquitous wireless communications network." (CalWA, p. 5.) The Denial of Effective Service Appeal strifes that balance. It assures the City may in some instances, find the need for mobile phone communications must trump traditional zoning regulations. The letters from T-Mobile, Verizon Wireless, and NextG assert a number of other issues with the proposed ordinance as follows: a. Section 230.96(E)(1){g) and Public Utilities Code Section 7901. (T-Mobile, Verizon.) City Attorney Response: No revision to Section 230.96(E)(1)(g) is required. The Section requires that the provider provide evidence of a license, lease or franchise to use City property. While the City disputes that Section 7901 grants wireless providers the right to use the PROW, this filing requirement does not prevent the applicant from claiming a Section 7901 franchise when filing its Wireless Permit Application. b. Section 230.96(E)(1)(h) and Co-Location of Antennas. (T-Mobile.) City Attorney Response: No revision is necessary. Section 230.96(E)(1)(h) requires the locations of all antennas within 1,000 feet of the proposed antenna. The concern is to address the over- concentration of antennas in one portion of the City through co-location, where feasible. There is nothing"overly burdensome"about this requirement. c. Section 230.96(E)(2) and Planning Director Discretion. (T-Mobile, Verizon, NextG.) City Attorney Response: No revision is necessary. Section 230.96(E)(2) authorizes the Planning Director to require a public hearing and CUP even for antennas that the Director may approve administratively. While it is expected that most Completely Stealth and non- freestanding antennas would be administratively approved, there may be exceptional circumstances where the Director concludes that a public hearing and approval by the Zoning Administrator is necessary. This additional review does not amount to a denial of a permit, but merely opens it up to public comment. d. Government Code Section 65850.6 and Co-Location. (T-Mobile.) City Attorney Response: No revision is necessary. Section 65850.6 defines a "wireless telecommunications co-location facility" as a City-granted permit for multiple antennas. Once such a discretionary permit is granted, then all subsequent applications to add antennas to that facility must be approved administratively. T-Mobile suggests that the City would require a CUP for such additional antennas. To the contrary, Section 230.96(E)(2)(a) already authorizes the Planning Director to administratively approve co-location antennas. e. Section 230.96(G)(13) and Public Utilities Code Section 7901. (Verizon.) City Attorney Response: No revision necessary. Section 230.96(G)(13) merely requires that the applicant demonstrate how it will provide power to the site. A utility franchise agreement with the City is unnecessary as part of a land use application. _�9 002l72833 Item 11. - 92 HB -360- Chair and Members of the Planning Commission Proposed Revisions to the City's Wireless Communications Ordinance November 14,2011 Page 5 f. Section 230.96(E)(1) and Planning Director Discretion. (Verizon, NextG.) City Attorney Response: No revision is necessary. Section 230.96(E)(1) authorizes the Planning Director to require supplemental information as part of a complete Wireless Permit Application. It is expected that this authority will only be exercised in exceptional circumstances where the Director concludes that additional information is necessary. g. Section 230 96(E)(2)(b) Modified Facilities and Planning Director Discretion. (Verizon.) City Attorney Response: No revision is necessary. Sections 230.96(B) (6) and (E)(2)(b) together authorize the Planning Director to administratively approve modifications to previously approved wireless facilities. There is no basis for the suggestion that this will be a "lengthy approval process," or that the Director will abuse his discretion to permit modifications administratively. JENNIFER MCGRATH, City Attorney /mv Attachment: Matrix of Wireless Industry Comments 09-2009A02112833 HB -361- Item 11. - 93 Comments Received from Wireless Industry (September 19,2011) Source Comment T-Mobile 1. Denial of Effective Service Appeal— ■ Not City's role to apply federal law. ■ Shift's City's litigation costs to applicants. ■ Burdensome and subjective demonstration of"need". ■ Significant gap to be applied/interpreted by courts and not by cities. ■ Various problems with evidence required 2.Wireless Permit Requirements— ■ Requirements on applicants are burdensome. ■ Screening requirements in 230.96(E)(1)(c) not required of other utilities violate Public Utilities Code (PUC)Sec.7901 by effectively precluding WCFs in public right- of-way(ROW). ■ 230.96(E)(1)(g) requirement for franchise agreement runs afoul of PUC Sec 7901 because telephone corporations already have statewide franchise to occupy ROW. ■ 230.96(E)(1)(h)co-location requirement overly broad and burdensome because it does not limit its reach to proposals that seek to construct a new support structure. 230.96(E)(2)allowing Director to re-evaluate WCF deprives applicants of objective standards. 3. CUP Requirements— • CUP requirements are overly burdensome and contrary to Govt. Code Sec.65850.6 which permits co-location without discretionary permits. ■ CUP requirements suffer from same flaws as Wireless Permit requirements. • CUP requirements for utility mounted facilities,which do not apply to other utilities in the ROW,violate PUC Sec.790L = Requirements to remove or replace obsolete WCFs are preempted. ■ CUP requirement for any new ground or utility mounted WCF rejected by Congress and interferes with business operations of carriers. Verizon 1.Denial of Effective Service Appeal— • Beyond City's purview and creates impermissible burden on federal statutory rights. • Confidentiality of submittal requirements not guaranteed under Public Records Act. Recommendation: Remove Section 2. Public ROW and Utility Easement— Section 230.96(E)(1)(g) requirement for franchise or lease agreement does not comply with PUC Sec.7901. Recommendation: Clarify that a lease is required only for use of City-owned structures within the ROW,but not for the use of the ROW itself. Section 230.96(G)(13) requirement forfranchise agreement would violate Williams Communications,LLC v. City of Riverside(2003)and PUC Section 7901 because wireless telephone providers are exempt from any local franchise agreements. 3.CUP Requirements— = Opposed to expansion of WCF categories that require a CUP. 1 Item 11. - 94 HB -362- ■ Section 230.96(E) provision to allow re-evaluation of WCF classification creates uncertainty in the process contrary to the Permit Streamlining Act. ■ Section 230.96(E)(1)(1)creates an open-ended list of submission requirements. Recommendation: Don't replace existing code with a new,murky process. 4. Like-for-like replacements should be permitted by right. There is no legitimate land use rationale for discretionary review in such circumstances. City risks intruding on the exclusive federal authority to regulate technical aspects of wireless services(see C[arkstown, supra). 5.City has no justification for requiring a carrier to submit its leases, particularly as leases often contain proprietary or confidential information. NextG 1. NextG incorporates its prior comments and briefings in the current litigation with the City setting forth its position regarding how the City's requirements violate PUC Sec.7901. The draft ordinance does not remedy the fundamental problem that it would empower the City to deny NextG access to the public ROW in violation of the PUC. it also does not treat all users of public ROWS in an equivalent manner. 2.Section A(Purpose)—Delete unsubstantiated claims that WCFs have negative impacts "including visual blight and diminution of property value." 3. Section B (Definitions)—Recommends clarifying several definitions and adding other definitions. 4. Section E(1)(Wireless Permit)— II The City needs to provide guidelines for satisfying the evidence requirements that a facility if compatible with the surrounding environment. ■ Property owner authorization or evidence of fee ownership should not apply to WCFs in the public ROW. ■ Co-location should be required where economically and technically feasible. ■ The requirement to submit any other relevant information as required by the Director is vague and overbroad. Section E(2) (Director Approval)— ■ The City's ability to re-evaluate a WCF provides the applicant with no certainty. Co-location should also include co4ocation on an existing utility pole. ■ Why is the City intentionally calling out for different treatment of ground or utility mounted facilities? H What are the required findings for Director approval? Section E(3) (ZA Approval)—The City may want to consider administrative review for new ground or utility mounted facilities at low visibility sites. Section E(4)(Design Review)—DRB required for facilities in the public ROW ONLY if within 300 feet of a residential district. 5. Section F(Denial of Effective Service appeal)— ■ Special fee is unreasonable. ® Request for monthly volume of calls, etc. inappropriate as it requires disclosu re of confidential/proprietary information. ■ City Attorney's ability to subpoena is unprecedented and hostile particularly to WCFs in the public ROW. 2 HB -363- Item 11. - 95 6. Section G(Standards)— • Screening-Having a requirement that a ground or utility mounted facility blend into a building or other concealing structure is physically impossible. ■ Monitoring—Delete sentence and replace with. The applicant shall provide the City with the property owner's authorization to locate on his property prior to the issuance of a building permit. Landscaping—What is the relevance of vehicular traffic to landscaping? 7. Section K(3)(b) (Removal of Abandoned WCF)—The costs of removal, repair,and restoration should be reasonable. Replace"entire"with"reasonable". CalWA 1. Opposed to lack of distinct regulations for WCFs in the public ROW. Support regulations and ministerial process for WCFs in public ROW. 2. Opposed to intention to discourage WCFs in residential areas which are increasingly under-served due to fewer land lines and more telecommuting/home office. 3. Remove onerous requirements to justify need/gap for WCFs which is not required of any other land use or business and not under the purview of local planning/zoning. 4. Ordinance should present a more balanced and tolerant view of WCFs which are considered a Utility by definition in the CA Constitution. WCFS are critical to public safety, emergency services, healthcare,and our economy. The draft ordinance does not regulate WCFs fairly like other utilities. 5. The claim that WCFs have negative impacts on property values is unsubstantiated. There are studies that confirm no such impacts. 6. The application of additional aesthetic regulations can significantly impact the ability of WCFs to function properly thereby requiring more WCFs and adding costs. 7. There are numerous General Plan goals,objectives, and policies that speak to the importance of and support the continued development of WCFs. 8. Need a definition for Distributed Antenna System with separate development standards and administrative process. Only those that can't meet the standards in the public ROW should be subject to Planning review. 9. Sec. D(1)(Exceptions) may be in conflict with Govt.Code Sec.65850.6 and may need clarification. 10. Sec. E(1)(h)(Co-location) should be consistent with Govt. Code Sec. 65850, exempt completely stealth WCFs,and all co-locations should be ministerial. 11. Sec. E(2)DAS should be Director approval only. 12. Sec. E(2)(a)(Cb-location)should allow for added height above existing. 13. Sec. E(2) Don't require CUP if WCF is completely stealth even if ground/utility mounted. 14. Sec. E(3)Don't require CUP if WCF is in public ROW. 15. Sec. E(3) Don't remove existing facilities. Need definition of"obsolete". 16. Sec. E(4) Don't require DRB in public ROW. 17. Sec. F Denial of Effective Service appeal—check with attorney. 18. Sec. G(10) Requiring a copy of the lease agreement is irrelevant and should be deleted. 19. Sec. H Requirement for license, lease,franchise, etc.for city property—check with attorney. 20. Sec. I See comment#1 above. 3 Item 11. - 96 HB -364- ATTAC H M E N T # 12 xn -365- Item 11. - 97 suite Flog �� Montgomery street San Francisco,(;,A 9411I-6533 Tremaine LLP Martin L.Fineman 415276.6575 tel 415276.6599 fax martinfineman@dwt-com September 12,2011 V k E-MAIL AND FEDERAL EXPRESS Mr. Ricky Ramos Senior Planner t'ity o_f�T- unting�QtLB�a.�h ---- Department of Planning and Building 2000 Main Street Huntington Beach, CA 92648 Re: City of Huntington Beach Draft Wireless Communications Facility Ordinance Dear Mr. Ramos: I am writing to you on behalf of our client T-Mobile West Corporation("T-Mobile")in response to your letter of August 24, 2011 inviting comments on the City of Huntington Beach's legislative draft of proposed revisions (the"Draft Ordinance")to the City's existing Wireless Communications Facilities Ordinance (Huntington Beach Zoning and Subdivision Ordinance Section 230.96). T-Mobile appreciates the invitation to review and comment on the Draft Ordinance and encourages the City to continue a dialog with the wireless industry and other stakeholders as it assesses its current ordinance and any proposed amendments thereto. T-Mobile respectfully submits that a number of aspects of the Draft Ordinance are contrary to federal or state law, and exceed the City's legitimate land use authority or police power. T- Mobile notes that the Draft Ordinance is ominous from the very start. The purported purpose of the ordinance is "protecting public safety, general welfare, and quality of life." The Draft Ordinance asserts that these interests are jeopardized because of the potential adverse aesthetic impact of wireless communications facilities. However, wireless facilities have no greater aesthetic impact and certainly pose no greater threat to public safety, general welfare, or quality of life than other utilities prevalent throughout the City. Yet;the Draft Ordinance only applies to wireless facilities, while other utilities are not subject to any similarly onerous restrictions or regulations. Furthermore, as discussed in detail below,while the City correctly recognizes that federal law prohibits the City from imposing restrictions that prohibit or have the effect of prohibiting wireless service, it mistakenly attempts to usurp the role of the courts and endow the City Planning Commission with the authority to interpret and apply federal law. Specifically, T-Mobile objects to: (1) the proposed Denial of Effective Service Appeal regime; (2)the Wireless Permit application and approval requirements; and(3)the Conditional Use DWT 181143141 W48172-000374 f Anchorage New York Seattle pie pt)d , Shanghai Item 11. — 98geles San Francisco Washington,o.c. HB -366- wwvw.c1M.com 100%L Mr. Ricky Ramos, Senior Planner September 12, 2011 Page 2 Permit application and approval requirements. If adopted as proposed, it is likely that the Draft Ordinance will lead to further litigation involving the City. 1. Denial of Effective Service Appeal Section 230.96(F) of the Draft Ordinance establishes anew appeal regime that purports to vest the.City Planning Commission with authority to consider whether a permit denial amounts to an effective prohibition of service in violation of federal law. However, it is not the role of the Planning Commission, or any Cite body, to apply federal law to an applicant's proposed facility. Thus,the Draft Ordinance steps beyond the City's legitimate zoning regulations and places it in the role the United States Congress gave to the courts. See 47 U.S.C. § 332(c)(7). e ear Ordinance goes fulfuer. It requzres Truff an applicant pay Me i a eni of Effective Services appeal fee," which is designed to pay for the City to hire a consultant to evaluate the proposal and determine whether the applicant has shown that a proposed.site is necessary to fill a significant gap in service. Thus, not only is the City attempting to usurp the authority of the courts to interpret federal law, it would require an applicant such as T-Mobile to pay what essentially amounts to the City's litigation costs to make its interpretation. Given that there is no fee shifting provision in 47 U.S.C. § 332(c)(7),this too runs afoul of the Telecommunications Act. "Congress adopted the [Telecommunications Act] in order to promote competition and higher quality in telecommunications services and to encourage the rapid deployment of new telecommunications technologies. The [Telecommunications Act] furthered these goals by reducing the impediments that local governments could impose to defeat or delay the installation of wireless communications facilities such as cell phone towers, and by protecting against irrational or substanceless decisions by local authorities." T-Mobile Central, LLC v. Wyandotte County, 546 F.3d 1299, 1306 (10th Cir. 2008) (internal quotations and citations omitted). Section 332(c)(7)was meant to limit municipalities from restricting or prohibiting wireless services, it was not meant to place affirmative burdens on wireless service providers. See id. at . 1310 n.5. It is antithetical to the purpose of the statute, and the Telecommunications Act in general,to require a burdensome and subjective demonstration of"need"that invites a city to intrude into the business decisions of wireless service providers. However,by vesting the Planning Commission with the power to determine whether the denial of a particular facility is an effective prohibition, Section F of the Draft Ordinance does allow the City to evaluate the need for a particular provider's service. Moreover, Section 230.96(F)(2) sets forth"minimums"that an applicant must demonstrate by "substantial evidence"in order to establish that there is a"significant gap"in coverage. The concept of a"significant gap"has been developed by the courts as part of the test applying federal law to allegations that a denial of a permit by a locality amounts to an effective prohibition of service under 47 U.S.C. § 332(c)(7)(B)(i)(II). It is not a concept meant to be applied by or interpreted by cities. Indeed.,federal courts have stressed that"`significant gap' determinations are extremely fact-specific inquiries that defy any bright-line legal rale " MetroFCS, Inc. v. City & County of San.Francisco, 400 F.3d 715,733 (9A Cir. 2005). Yet,the DWT 18114314YI 0048172-000374 HB -367- Item 11. - 99 Mr. Ricky Ramos, Senior Planner September 12, 2011 Page 3 Draft Ordinance purports to establish specific evidentiary requirements to demonstrate that the proposed facility is necessary to fill a significant gap in coverage. Specifically, Section 230.96(F)(2)(a)requires that an applicant provide evidence demonstrating the gap, "including but not Limited to whether the gap pertains to residential in-building, commercial in-building coverage, in-vehicle coverage, and/or outdoor coverage." First, it is vague and nonsensical to require a."minimum" showing, "includles], but [isl not limited-to"_ particular evidence. If further evidence is required it must be explicitly spelled out. More importantly,the type of service deficiency the applicant seeks to remedy is not aproper subject of the City's zoning and land use regulation. As a practical matter, in-building coverage requires the greatest signal strength, and courts have recognized that a lack of sufficient in-building coverage does amount to a"significant gap." MetroPCS, Inc. v. City & County of San Francisco, 2006 WL 1699580 (N.D. Cal. 2006). Furthermore, federal courts have recognized that a significant gap exists where there may be some coverage,but the volume of calls in that area has exceeded traffic capacity,thus blocking calls. Nextel of New York; Inc. v. City of Mt. Vernon, 361 F. Supp.2d 336 (S.D.N.Y. 2005). Thus,this requirement is beyond the scope of what a federal court would necessarily demand. Section 230.96(F)(2)(b) requires evidence that other sites were considered but are not"available on commercially practicable terms." Contrary to its purported purpose, imposing this requirement will,in some instances,prevent a finding of significant gap only because, for example, there are two viable potential solutions—not because there is no significant gap. For example,where an applicant narrows its search to two possible sites and each is available it can clever demonstrate that all other sites are unavailable. This requirement highlights why an effective prohibition inquiry is not susceptible to bright line rules and is only appropriate for the courts to apply. Section 230.96(F)(2)(c)requires evidence demonstrating radio frequency signal strength transmission requirements and objectives that the applicant has established for the Southern California region and the City of Huntington Beach. Likewise, Sections 230.96(F)(2)(d) & (e) require radio frequency propagation maps and radio frequency drive test results demonstrating the actual radio frequency transmission levels in the vicinity of the proposed facility and'any alternatives considered. As an initial matter,the FCC has made clear that its authority over the regulation of radio frequency emissions is exclusive and any attempt by the City to regulate based on radio frequency is federally preempted. In re Petition of Cingular Wireless LLC for a .Declaratory Ruling that Provisions of the Anne Arundel County Zoning Ordinance are Preempted 18 F.C.C.R. 13126, 13132� 13; see also Freeman v. Burlington Broadcasters, Inc., 204 F.3d 311 (2d Cir. 2000). Thus, the City has no authority to regulate based on radio frequency requirements. Moreover, determining radio frequency coverage parameters are business decisions that are not within the City's legitimate land use or police powers. The attempt to regulate the technological operations of a federally licensed wireless carrier is preempted. New York SMSA.Ltd. Partnership v. Town of Clarkstown, 612 F.3d 97 (2d Cir. 2010). DA7 18114314v 1 OM172-000374 Item 11. - 100 HB -368- Mr. Ricky Ramos, Senior Planner September 12,2011 Page 4 Section 230.96(F)(2)(f)requires an enormously burdensome volume of an applicant's business data., again aimed at requiring the applicant to prove a need for the proposed facility, unrelated to the City's legitimate regulatory authority. Specifically this section requires, "[deports regarding the applicant's monthly volume of mobile telephone calls completed,not completed, dropped, handed-off, not handed-off, originated and not originated for the signal area to be covered by the proposed facility." In addition to being overly broad,burdensome, and wholly outside the City's cannot provide a meaningful report that could capture calls"not originated" in a particular area_ Recognizing that the requirements of Section 230.96(F) are burdensome and intrude upon an applicant's proprietary information and business decisions, Section 230.96(F)(2)(g)purports to keep any proprietary information confidential and not a part of the public record"unless otherwise required by law." Of course, the City can make no guarantee that a request made pursuant to California's Public Records Act would not require disclosure of an applicant's proprietary information. Ultimately, it is not the City's role to determine whether a particular facility is necessary to fill a significant gap in coverage. It is,first,the applicant's business decision to determine its own need for the proposed facility,and if the City denies the particular facility for otherwise legitimate land use or zoning reasons, it is the role of the courts to determine whether the need for the facility is protected by the Telecommunications Act. The entire scheme proposed by Section F of the Draft Ordinance should be removed. 2. The Wireless Permit Requirements Section 230.96(E)requires a Wireless Permit for all proposed wireless facilities and sets forth the requirements for approval of a Wireless Permit Application. Several of the Wireless Permit application and approval provisions impose overly burdensome requirements on applicants that exceed the scope of the City's legitimate land use authority or police powers. Section 230.96.(E)(1)(c) requires that a Wireless Permit application include evidence that the proposed facility"is screened or camouflaged by existing topography,vegetation,buildings or other structures as measured from beyond the boundaries of the site at eye level (six feet)." Placing this general screening requirement on all wireless facilities,regardless of location, violates Public Utilities Code § 7901,because it would effectively preclude wireless facilities from the public rights of way. Section 7901 grants a statewide license to telephone corporations, including wireless providers, to access and use the public rights of way. Pac. TeL & Tel. Co. v. City& County of San Francisco, 51 Cal. 2d 766, 774 (1959). Likewise,because other utilities and right of way occupants are not required to screen their facilities from view, it is not a reasonable exercise of the City's authority to regulate the time,place, and manner of right of way access under Public Utilities Code § 7901.1. Similarly, Sections 230.96(E)(1)(g) and 230.96(H)run afoul of Section 7901 because they each require that the applicant for any wireless facility to obtain"a license, lease, franchise, or other similar agreement from the City"before any wireless facility may be placed"over, within, on, or beneath City property." The City DWT 18114314v10048172-000374 HB -369- Item 11. - 101 Mr. Ricky Ramos, Senior Planner September 12, 2011 Page 5 cannot require an applicant to enter into a local franchise because,pursuant to Section 7901, any telephone corporation already possesses a statewide franchise to occupy the public rights of way. In addition, Section 230.96(E)(1)(h) imposes the overly burdensome requirement that an applicant identify all other wireless antennas within 1000 feet of the proposed facility. This provision is aimed at encouraging co-location of antennas,but does not limit its reach to proposals that seek to constructaew support structures. Wherefore _it is overly broact and burdensome. Section 23 0.96(E)(2) addresses wireless permit applications that may be approved by the Director without a Conditional Use Permit. However,this section allows the Director to re- evaluate antenna classifications at any point in the review process. Thus,the City, at the whim of the Director, is free to change the application requirements for any panne ar acillty at any _ time, without notice to the applicant. This uncertainty deprives applicants of any objective standards upon which they can rely, and is counter to the stated federal purpose of the Telecommunications Act to expand and promote consumers' access to advanced telecommunications facilities and capabilities. City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005). 3. The Conditional Use Permit Requirements Section 230.96(E)(3)requires that an applicant obtain a Conditional Use Permit("CUP") for "any new ground or utility mounted wireless facilities_" Several'of the CUP application and approval provisions impose overly burdensome requirements on applicants that exceed the scope of the City's legitimate laud use authority or police powers. First, the requirement that all new utility mounted wireless facilities obtain a CUP is in contradiction to Government Code § 65850.6,which addresses collocation sites. Section 65850.6 specifically states that, "a collocation facility shall be a `permitted use not subject to a city or county discretionary permit. . . ."' Therefore,the City may not impose a discretionary CUP process on collocation sites, as the Draft Ordinance purports to do. Second, Section 230.96(E)(3)mandates that an application for a CUP for a wireless facility include all of the information required for a Wireless Permit. Such duplication is unnecessarily burdensome on the applicant and suffers from the salve flaws as Section 230.96(E)(1), identified above. Third,this section also allows the Zoning Administrator to impose further restrictions on an applicant's proposed design and construction. The Zoning Administrator may require an applicant to incorporate: "(a) Completely Stealth installations; (b) Stealth Techniques; (c) Co- location and locating Facilities within existing building envelopes; (d) Colorization or landscaping to minimize visual prominence; and/or(e)Removal or replacement of Facilities that are obsolete." Meanwhile, other utilities and occupants of the public rights of way are not required to obtain CUPs or subject themselves to these discretionary conditions before installing facilities in the public rights of way. Thus, by requiring CUPs for all utility mounted wireless DwT 18114314v1 0048172-000374 Item 11. - 102 HB -370- Mr. Ricky Ramos, Senior Planner September 12, 2011 Page 6 facilities, and endowing the Zoning Administrator with the discretion to require these various conditions,the Draft Ordinance violates T-Mobile's and other wireless carriers' rights under Section 7901,in excess of the City's authority under Section 7901.1. This provision also violates federal law in that it imposes requirements that are not competitively neutral and nbn- discriminatory. 47 U.S.C. § 253 (a), (b), (c). Fourth Section 230.96(E)(3)purports to-allow-the Zoning Administrator to require"removal or replacement of Facilities that are obsolete." With all due respect, a City lacks the authority to make determinations about what technologies are "obsolete". As mentioned above, a locality's attempt to regulate the technological operations of a federally licensed wireless carrier is preempted. New York SMSA Ltd Partnership v. Town of Clarkstown, 612 F.3d 97 (2d Cir. . 2010). Finally,but perhaps most fundamentally,the City is seeking to impose anew tier of wireless regulations(conditional use permits for all ground-mounted or utility pole-mounted wireless facilities) that was rejected by Congress. Local government authority to make decisions regarding the placement,construction and modification of wireless facilities was preserved (in part)but that authority does not extend to interfering in the business operations of wireless carriers, as the Draft Ordinance contemplates. For all of these reasons, T-Mobile respectfully asks that the Draft Ordinance be significantly revised to bring it into compliance with state and federal law. Respectfully yours, Davis Wright Tremaine LLP Martin L. Fineman DWT 1811431410049172-000374 xB -371- Item 11. - 103 MACKF`NM.&ALBRITTON LLP 220 SANSOME STREF-r,14TH FLOOR SAN FRANcisco,CALiFORnA 94104 TELEPHONE 415/288-4000 FACSIMII.E 415/288-4010 By Email&Facsimile Ricky Ramos Senior Planner Department ot Planning&Building City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Re:_Huntington Beach Draft Wireless Communications Facilities Ordinance Dear Mr. Ramos: Thank you for speaking with me this morning. On behalf of Verizon Wireless,I am writing to provide our initial comments on the draft wireless ordinance provided to our client("Draft Ordinance"). We understand that you are gathering input from the interested wireless carriers before scheduling a study session,and we certainly look forward to working with you. As we have had limited time to review the Draft Ordinance,our comments are preliminary;however, as I mentioned,the Draft raises major_issues. As you know,there is increasing public demand in Huntington Beach(the"City") for high quality wireless service, and this demand can be met only by the installation of new antenna facilities as well as the modification of existing sites. It is extremely important that the Draft Ordinance provide workable criteria that permit Verizon Wireless to serve both emergency personnel and the general public,especially in order to meet the growing demand in residential areas. Verizon Wireless's wireless service provides daily communication for Huntington Beach residents, commuters and its workforce, and is a critical component of the City's emergency response systems. Cell sites now incorporate E-911 equipment,which allows emergency personnel to "pinpoint"the origin of 911 calls from cellular telephones. In short,the service is critical both for everyday users and for emergency purposes. Our concern is to ensure that Verizon Wireless is able to install and upgrade its facilities and equipment without encountering undue impediments or other barriers that Item 11. - 104 HB -372- Ricky Ramos,Senior Planner City of Huntington Beach September 12,2011 Page 2 would violate federal or state law. In the present situation,the Draft Ordinance contains a number of provisions that do not comply with applicable law. Denial of Effective SerOee Appeal The Draft Ordinance contains a specific process and standard for determining whether federal preemption exists. Under prevailing law,this constitutes an impermissible burden on federal rights, and should be deleted. The"Purpose" statement in the Draft Ordinance, Section 230.96(A), states in part that`where the City determines that the Facility does not satisfy City planning and zoning standards, the Wireless Provider may then choose to establish Federal preemption because(i) a significant gap in wireless coverage exists, and(ii)there is a lack of feasible alternative site locations." Section 230.96(F)then sets forth a special appeal fee and process under which the Applicant may assert federal preemption. This special process includes submission of eight categories of evidence, an unspecified fee(to be established in each case),and the right of the City Attorney"to issue administrative subpoenas to compel production of such documents, testimony and other evidence relevant to the applicants denial of effective service claims." (See Section F(1)-F(3)). The ordinance scheme is thus designed to establish an administrative process and special fee for a determination of federal preemption. As such, it contains matters beyond the City's purview under its land use authority and police power, and must be removed because it creates an impermissible burden on federal statutory rights. See Felder v. Casey, 487 U.S. 131, 139-144 (1988); Barry v. Ratelle,995 F. Supp. 1235, 1238 (S.D. Cal. 1997); Hood v. Los Angeles, 904 F.Supp. 65, 67(C.D. Cal. 1992). In addition, from a purely practical standpoint,it is unwise for the City to set forth very specific submission requirements to establish any federal right,which, from the preemption standpoint, are subject solely to federal statutory and case law. See 47 U.S.C. Section 332(c)(7). The actual submission requirements set forth in Section 230.96(F)(2) are problematic not only because of the fundamental conflict with preemption principles, but also because they attempt to address technical requirements (transmission levels, call volumes, coverage strength etc.)which are solely within the purview of the federal government. In the 2010 Clarksto-Rm decision, the Town's law impermissibly crossed the line between legitimate land use regulation and preempted regulation of technical and operational standards,and the same is currently true under the Draft Ordinance. See N.Y. SMSA Ltd.P'ship v. Town of Clarkstown,612 F.3d 97 (2d Cir.N.Y. 2010). The final submission requirement set forth in Section 230.96(F)(2)(g) states that any proprietary information disclosed to the City "shall remain confidential,"but this statement simply would not create any guarantee of confidentiality under the California Public Records Act. HB -373- Item 11. - 105 i Ricky Ramos,Senior Planner City of Huntington Beach September 12,2011 Page 3 In sung,we do not believe the Denial of Effective Service Appeal process and fee — rz :jr-& ants sa..t f.^Jr in-SSe.ro4—ie !Z �6(�T=rt„1�sl�cT�ZL6'legal claall€��and ask thaat the section be deleted. The Public Rieht-of-Way, and the Utility Agreement Section 230.96(E)(1)(g)indicates that the applicant may have to provide a ehise agreement or lease for u—se—oT any public property,—presumably me u g e public right-of-way. In order to comply with California Public Utilities Code Section 7901, Section(g) should clarify that a lease is required only for use of City-owned structures within the right-of-way(such as City-owned traffic lights or other poles),but not for use of the right-of-way itself. Section 230.96(G)(13) states that if a facility requires electrical power, as every facility does, the Applicant must provide either a franchise agreement between the City and the applicant, or a written statement from the utility company"that they accept all responsibility for those lines in the public right-of-way." We are not sure of the genesis of this requirement,but it is doubtful that Southern California Edison ("SCE')makes any separate statement of general liability beyond the statements contained in the SCE franchise agreement with the City. The alternative set forth in(G)(13), namely the requirement of a franchise agreement between the Applicant and the City,would clearly violate Williams Communications, LLC v. City of Riverside, 114 Cal.AppAth 642, 648 (2003) and California Public Utilities Code Section 7901. It is well-established that wireless telephone providers are exempt from any local franchise requirements- Conditional Use Permit, and Open-ended Requirements The Draft Ordinance expands the categories of site applications that require a Conditional Use Permit("CUP")—this expansion goes far beyond the City's present regulations,which generally base the need for a CUP on factors such as excess height, visibility and architectural non-integration. In light of the current criteria, we do not believe such an expansion is necessary or warranted. In addition,while some applications are subject to administrative approval, an application may, at any stage, be re-evaluated and placed in the"discretionary"review category. This means that no applicant has any idea which process ultimately will be applied. The California Permit Streamlining Act states that all applicants are to be advised of the application requirements at the outset. See Cal. Gov. Code, §§ 65940— 942. Under the Draft Ordinance there is no certainty in the process. Section.230.96(E)(1)(i)includes a catch-all provision,requiring the applicant to provide"[a]ny other Tel evant information as required by the Director of Planning and Building_" Taken together, the expansion of CUP requirements,the possibility of re- Item 11. - 106 HB -374- Ricky Ramos,Senior Planner City of Huntington Beach September 12,2011 Page 4 evaluation under a new process at any stage, and an open-ended list of submission requirements introduce a high level of uncertainty and burden upon any carrier attempting to improve wireless infrastructure within the City. We believe the existing Code provisions clearly addressed distinctions in requirements and the necessary level of review, and should not be replaced with a new,very murky process. Modifications Section 230.96(B)(6) specifically includes "like-for-like"replacements in the definition of modifications,which as a practical matter may mean that simple equipment replacements may have to undergo a lengthy approval process_ We believe any like-for- like replacements should be permitted as of right; there is no legitimate land use rationale for discretionary review in such circumstances, and the City risks intruding on the exclusive federal authority to regulate the technical aspects of wireless services. See, e.g, Clarkstown, supra. Monitorin6 Section G(10) is entitled"Monitoring"but requires provision of a lease between a private landlord and the applicant before a building permit will be issued. The only relevant issue is whether the applicant is duly authorized by the underlying property owner to install and maintain a facility in the location subject to land use approval. Provided the application is authorized by the property owner, we do not believe there is justification for requiring any carrier to submit its leases,particularly as leases often contain proprietary or confidential information. As indicated,this description of problematic provisions is not intended to be exhaustive; we believe the proposed changes raise a number of issues and certainly require examination in light of state and federal law_ We look forward to speaking with you further. Very truly yours, Sarah L. Burbidge HB -375- Item 11. - 107 Ricky Ramos,Senior Planner City of Huntington Beach September 12,2011 Page 5 cc: (by email only) Verizon Wireless Item 11. - 108 HB -376- NextG Networice September 12, 2011 _Ricky Ramos, Senior Planner_ City of Huntington Beach 2000 Main St_, 4th Floor Huntington Beach, CA 92648 Re: Zoning Text Amendment No. 09-002 Legislative Draft(August 2011) Dear Mr. Ramos, NextG Networks of California (NextG") hereby submits this letter of comment regarding the proposed Zoning Text Amendment No. 09-002, Legislative Draft, (August 2011). While NextG appreciates the opportunity to comment on the City of Huntington Beach's (the "City") proposed language changes to its Wireless Communication Facilities Ordinance ("Ordinance"); NextG believes that the proposed changes are illegal, counter-productive and miss the point of the Ordinances' stated intent. The City should take this opportunity to work co-operatively with the wireless telecommunication industry ("Utilities") and craft an Ordinance that addresses the C4's perceived "potential negative aesthetics" impact of Wireless Communications Facilities ("WFC"), while allowing for the smooth deployment of the wireless networks that benefit all of the city constituency. Oncaoing Litt _ation NextG notes that it is currently involved in litigation with the City in which NextG has challenged the City's current Wireless Ordinance as unlawful, particularly, in violation of Section 7901 of the Public Utilities Code. NextG submits these comments subject to and without waiving any of the arguments that it has advanced in that litigation. Moreover, to the extent that there are portions of the Wireless Ordinance that would remain unchanged or that are not otherwise addressed in these comments, NextG incorporates its prior comments and briefings setting forth its position regarding how the City's requirements violate Section 7901. NextG maintains its position that the City's current Ordinance violates Section 7901 of the Public Utilities Code because the City cannot deny NextG access to the public rights of way and the City's current Ordinance seeks to subject NextG's use of the public rights of way to application processes and review that exceed the City's limited authority under Section 7901.1 of the Public Utilities Code. The proposed Ordinance amendment Z1;tS wnn�t #G 9,La Vame, 4 q%r.E63.97M-P;w -50 9 a s5 g. Ea�n�Yaz s.rat� xB -377- Item 11. - 109 does not remedy the fundamental problem that the Wireless Ordinance would empower the City to deny NextG access to the public rights of way, in violation of the Public Utilities Code. In addition, the proposed Ordinance continues to fail to treat all users of the public rights of way in an equivalent manner, since the City does not impose the CUP requirement on other right of way users. With its legal arguments reserved, NextG provides the following recommendations that may help rectify the legal deficiencies in the proposed Amendment. Comments Section & Purpose. States that wireless facilities have negative aesthetic impacts "including visual blight and diminution of property value.n Such claims are unsubstantiated and should be stricken. Section B: Definitions. 3. The definition of"Completely Stealth" asserts that light standards are to be of a "typical diameter'. What does the City consider"typical'? As fight pole standards are available in different diameters and this term should be more clearly defined. Also, these poles typically taper, so the diameter changes from top to bottom of the pole. The definition also lacks the mentioning of omni directional antennas, directional panel antennas and cylindrical antennas, which are commonly used in the public right of way. 4. Ground Mounted Facility. The following shall be added to the definition, "Such a facility includes but is not limited to new or existing street light poles, traffic signals or utility poles. "Street Light Pole" — any concrete, fiberglass, metal, or wooden pole that has a mast arm for electrolier support. "Traffic-Signal"---s.hall mean.any standard-design-concrete,fiber glass, or metal pole that has a mast arm for electrolier support and is used for traffic signal control purposes. Traffic signal may also integrate a streetlight. "Utility Pole" —any wooden pole that is erected by a utility company. 11. Utility Mounted. The words, 'but not traffic signals" should be deleted. 13. Does this definition apply to water districts, police, fire, So Cal Edison, etc? P.zof4 Item 11. - 110 HB -378- Section E. Process to Install and Operate Wireless Communication Facilities. 1. The required fees shall be "reasonable". b. The City needs to provide guidelines for satisfying the evidence requirements that a facility is compatible with the surrounding environment. c. The following should be added after "six feet"; "from a public vantage point. f. This requirement shall not apply to wireless facilities in the public right h. Co-locations shall be required where "economically and technically' feasible. i. 'Any other relevant information" is vague and overbroad. 2. Director Approval. The City's ability to determine whether a facility may be approved by the Director or whether a CUP is required gives the City broad discretion and provides the applicantwith no certainty. The criteria should be spelled out in the process. a. Co-location shall also include co-location on an existing utility pole. b. There is a concern here with the City's inclusion of the words "and is not ground or utility mounted". The City is intentionally calling out for different treatment of ground utility facilities. Why is this? - Section 2 states that-the-Director shall issue finding-s_of approval, What are these required findings? Section 3 clearly states that any NEW ground or utility mounted wireless facilities shall obtain a CUP. The City may want to consider administrative review for low visibility sites. Section 4. Design review shall be required of facilities in the public right of way ONLY if the facilities are within 300 feet of a residential district. Section F. Applicant May Assert Federal Preemption at Time of Appeal to Planning Commission 1. The City's imposition of a special fee for a appealing a wireless CUP is unreasonable. P.3 o,f 4 HB -379- Item II. - III 2f. The City's request for monthly volume of'calls, etc is inappropriate as it requires the disclosure of confidentiaUproprietary information. 3. The City Attorney's ability to subpoena and compel the production of certain documents relevant to the denial of the applicant's service claims is unprecedented. In my more than 20 years in land use planning, I have never seen an ordinance calling that specifically calls out for the active participation of the City Attorney in the permit process. Clearly, this section illustrates the City's hostility toward the wireless facilities, more specifically those located in the public right of way_ Section G. Wireless Communication Facility Standards 1. Screening. Having the requirement that a ground or utility mounted facility blend into a building or other concealing structure is physically impossible. 10. Monitoring. The entire sentence should be stricken and replaced with the following: "The applicant shall provide the City with the property owner's authorization to locate on his property prior to the issuance of a building permit. u 11. Landscaping. What is the relevance of projected vehicular traffic' to landscaping? Section K. Cessation of Operation 3b. The costs of removal, repair and restoration shall be reasonable. Thus, the word "entire" shall be replaced with the word "reasonable". - —Thank -you-fer-the opportunity -to-comment. Af youhave .any q-Iestiions -please__do hesitate to call me at (858) 876-2070. NextG looks forward to working with the City to resolve our differences and to providing the public Wth least obtrusive, most technologically advance wireless networks. Very truly yours, NEXTG NETWORKS OF California, INC. Joe Milone Director of Government Relations P.4of4 Item 11. - 112 HB -380- i. e..-r+_• September 12, 2011 City of Huntington Beach Department of Planning and Building 2000 Main Street -- un ng onEseach,-- Wb4d --- - :: Attention: Mr. Ricky Ramos, Senior Planner Via E Mail DeLb ery Only RE: City of Huntington Beach Draft Wireless Communication Facilities Ordinance Dear Mr. Ramos: The California Wireless Association ('CaIWK)' writes in response to the City's ongoing discussions concerning the possible amendments proposed to the City's existing Wireless Communication Facilities Ordinance. CalWA appreciates the effort of the City's Planning Division to date however we are opposed to the general tone of the proposed ordinance and particularly its lack of separate and distinct regulations for addressing proposed facilities within the City's public right-of-way, its continued stated intention to discourage facilities within residential areas, and the onerous requirements to "justify" the need for a proposed wireless communication facility. We present this correspondence and the attached "annotated comments" in support of _ our positions stated above_and sincerely thank the City for this opportunity_ .......... As a precursor to our more substantive comments herein, we are also hopeful that the City of Huntington Beach can appreciate the tremendous pressure the industry is now facing in meeting the future wireless needs of Huntington Beach's citizens, business community, and public safety professionals. Again we are grateful for the opportunity to participate in this discussion, and hope to continue our participation, as the process progresses. While we believe that the City's Planning Division has conducted a thoughtful examination and review of the matters at issue here, there are several additional issues ' CaIWA is a non-profit organization made up of volunteers who work in the wireless/telecommunications industry throughout California. Its goal is to raise awareness about the benefits of and to promote the wireless industry,to educate the public and political leaders on issues of importance to the wireless industry, and to cultivate working relationships within and between the industry,the public and political leaders. xB -3 s 1- - Item 11. - 113 that we believe are important for the City to also understand before providing any further direction on this matter. Again, in addition to this correspondence, detailed and specific comments on the proposed ordinance are attached that detail issues with the structure and language of the ordinance in its current draft form. This correspondence is presented in an effort to broaden the discussion and present additional issues and values that the subject land use also represents and supports. We respectfully request the Planning Division review these important comments and consider a much more balanced and tolerant view of this land use that by definition in the States constitution is in fact a "Utility. "CALIFORNIA CONSTITUTION ARTICLE 12 PUBLIC UTILITIES SEC. 3. Private corporations and persons that own, operate, control, or manage a line, plan4 ors stem for the transportation of people or property, the transmission of telephone and telegraph messages, or the production, generation, transmission, or furnishing of heat, light, water, power, storage, or wharfage directly or indirectly to or for the public, and common carriers, are public utilities subject to control by the Legislature. The Legislature may prescribe that additional classes of private corporations or other persons are public utilities." The additional "aesthetic" considerations that are the focuslsubject of your deliberations will have a significant negative impact on the wireless communications industry and jeopardize achievement by the City of many additional stated City goals, objectives, and policies not considered by the Planning Division to date. Prior to presenting specific evidence of the City's own recognition of "additional values" to which the subject land use supports, we wish to convey to the Planning Division some basic information that should also be considered in your deliberations, and specifically to the question of "ratcheting up" any "aesthetics" based only regulations to this utility infrastructure. 1. All telecommunications facilities including wireless are defined as a 'utility under state law(see reference to State Constitution above); a. No other utility is required to address "aesthetics" in nearly the same manner that is forced upon the wireless telecommunications industry. b. We all rely on local government to apply regulations on similar land uses equitably and fairly. Please consider this fundamental tenant of government as you deliberate on this matter. 2. President Qbama in his recent "State of the Union" address has identified the deployment of broadband wireless infrastructure as an urgent need and immediate priority for this country; 2 Item 11. - 114 HB _382_ a. By adding additional regulations and requiring additional discretionary entitlements for the review and processing of those applications that are designed in a manner that is consistent with other similarly placed utilities, the City is behaving inconsistently with the President's directive and as will be presented subsequently, their own (City of Huntington Beach) goals and policies. considered more prominently in the development of any land use regulations; a. The application of additional "aesthetically" based regulations can ignifi-earatty--lipit he-abili"f-tN-s-ir-vffa-&#ueture-fo-funcbG"mpeFly-,and-to its highest and best use, thereby necessitating many more facilities and adding -stgRif•Ec&i -mGFe Est WhiGh—results in additie r emic burdens for us all. 4. Wireless infrastructure is becoming critical in the provision of public safety and emergency services as well as serving as the new platform of our economy and new ways to manage and provide healthcare. a. Certainly "aesthetics" is part of the equation; however the discussion needs to be more balanced and cannot solely focus on this one element at the expense of the functional requirements of the technology and all other considerations. b. Please consider the broader issues of public safety and emergency services, economic development, and future critical healthcare applications as you continue to deliberate on any land use regulations you may be considering. 5. The Nation has begun to migrate Public Safety Communications to the frequencies within the more recent release by the FCC of those bands associated with the "Long Term Evolution" (LTE) networks also being deployed _ by commercial wireless carriers. This was specifically done to allow Public Safety professionals, during times of natural and manmade c3isastersi vtinth the ability fo- - utilize and "roam" upon these adjacent commercial LTE platforms to ensure that critical communications can be better maintained in these times of significant need. The following discussions provide numerous examples and "snapshots" of the evidence in support of the various"additional values' that this land use supports as recognized and documented with the City of Huntington Beach's General Plan. General Plan Land Use Element Within the City's Land Use Element of its General Plan are obvious references that speak to the importance of this land use and how reasonably and effectively managing it will support the ability of the City of Huntington Beach to meet its stated land use goals. Below are various Goals, Objectives, and Policies lifted directly from the Land Use Element of the City of Huntington Beach's General Plan. 3 HB -383- Item 11. - 115 o life for the Cu"irept siunt d fture residents of.Runt ngtun Establish lucetttrves for the dcvrloptnent of.usc. S to . Support thp pees arid-.reflect theeconor ia.c ddmazn of ;i�it City residwts and vurs,. (P LU 16 ndl-LU Froraote.&-ve me�.-=ordamcvrRh The Econo DevelopwientElem.qt. 4U] orrclaflim' Of Land Us& Dg*e kgmeht with upporting PublieWrastructureandSemit Goat ------------------ Ensure that development is Acleq=ttly served-by transportation Wrastructurr,utility la t axct ;. anct public servim. LU 2:i x Roview developmept with ft ability of the Cif an deg service providers to provide adequate pubes infrwmw re (tmnspelta un fb�cillitie . waste-alter cellcaion a,-jd trcatment,, 't ate�r supply, Ow— nammI gar, telecQmm. lcaffo ,-ol;id waste iliSPOM.l: st=m drainage) and quality public smi (,,OVernrrnental, POH"a ffi-C, =MfiODA CURUM], aDd public edtxational syat M}. 4 Item 11. - 116 HB -384- Plan wd wnpuct.. public, and .sm—vk u r u rxt t i . fi t ctm—htcs to smart t _ Al a ati - Meentsof the G.eherai:pianl U-LU9t*d1-LUj4 Requive that the type amount, and lean of ,- tlginn of - su o in *as#m ure and .-"zvi defined b the M=Wou and Public, Util%i and rice Me mom (UU8, I-_LUG`,I-LU11j,atid.M`. LU 4.3 Fnsm tha paopeM ern=and tmazts have acc=.to educafional progmw5 regarding p perty mtbrUmmmt* LU 4 Provide=VOMIC `fi e, as fun&=-awal able, for to improvemeut of pbyskOly dctgribat *ucft=im - ---------- ---- - - -- -- _t _ i .- _ _ _and I-W - -- -- ---- --- -----.-- - --- -- ------ ...... .._ The development of a robust and ubiquitous wireless communications network that is not overburdened with costly "aesthetic regulations and an expensive and time consuming discretionary entitlement process will better serve the goals, policies and objectives of the City articulated above. General Plan Economic Development Element Within the City's Economic Development Element are yet additional references that speak to the importance of this land use and how reasonably and effectively managing it will support the ability of the City of Huntington Beach to maintain its prominent position as an economic center and balanced community in the greater Orange County region. In these difficult economic times the adoption of onerous and burdensome regulations is not conducive to supporting a sustainable economic recovery that we all recognize as critical and important to all our futures. Government needs to consider a more 5 HB -385- Item 11. - 117 supportive and partnering role in order to assist one of the few industries that is able to grow itself and at the same time enable and support other industries. Below are various "goals", "objectives", and "policies" lifted from this Element that speak to this land use_ EconowiCIG Goal ritcie � o Parta tics -:fir pm � and th.r€ugh a pWymeot and loml.r J.stabiliitys.. F-B WA Maintain and expand economia and bnsi -. development:t: jkagmms that enco= e and sdmul�te businm op rtail�es,within the City. ( ED 1, PED 2: and,I D 3) ED.iw Review and Mvise t4e Ecanomio Develnnncnt k=eUA: Very three yWs to ass= the Eknicut a) adequately promotes po:licaies an4 PrOVIAMs -to rntet the ids. reside t nee&; oonfv=S Nvith other oal-F € c t� ;ants; and s)} refloc y the Eton}o .io.MveloMcnt .. ..._..,,_ ____,,,,,____..___.________-_._.. � ._ �.A'_Tp-•N=�fY!FJ,+hi_:6.tY�R.�_____ __._ _ �' arktOn Objectbv YID Z2 NWImIza Huntingt= a ss visibWW by plc is g in local, regio d Stda MmimOns. ED 7.�LI 'Fork with ate, ommty, and sahregional orgy tmtio. to pmmote Hmutingwn Beach, Dram County, and l.ifomia. V-ED t and I,E 2) 6 Item 11. - 118 HB -386- Valley .SiM* kOI!of x it # * Df =�Jr�. owfomcc-.=d v 3to b=au, %hool 3C t er b sines .organizafioat— ham:th,c-Ir*onii*otial, U, -- is a.diverse, be2Jffy c n=u iV izffii. iWch tq - - — &bas�m (I ED I d-l- 2) 'ED 2.24 Wim DM Wp==uaica6=.col ,, =h as fz l 3,the i�tcm and'L oA"itde Wcb to pr=ft*o City. - -andI EW) ZD4:2 Soek to capUre..the."trwgrow1W businesses oc ram, a. won-M-t 1 uses;and and l D 2). Eammgp the Wwm7wu of tW mp of gam5 and se ces pro-vWd in Rai&gton Bea6 tc ac=nraodala ft a of allrZAdents- it HunftgtovBcacb ndtha 7 xB -387- Item 11. - 119 StoiC.tQ. r.Vw licw graW 'rn&istl q�s.spch, as but' tit�irzii'��: resgarch and devolopmem :urns (higher ticimlogy .r_tMnM& iO and infonnation #. cm mimr1 hwumy s"Viet prolvidcrs Md equip-meat inmmtcWres which am aiWffig the noxt series of owe and uh'ii�y. company cquigr ent and sue ; c.. biotechnical Wasfries d. euxuanmen-W terJwolo s and c. point of sate indushim. (I ED I -mdl-ED The City's wireless network is a critical component to providing "infrastructure" that will support the City's envisioned strong and diversified economy. This additional "value" needs to be added to the conversation and decision making process when addressing this critical infrastructure/land use. The numerous "goals", "objectives", and "policies"within this Element speak indirectly and directly to the importance of the telecommunications industry and the role it plays in support of City's local economy not to mention the regional economy. General Plan Public Facilities and Public Services Element Within this Element of the City's General Plan, "telecommunications" plays an ever critical role in emergency preparedness and emergency services. PF . . UtiliZe tnadern egta ent and techniques to ensam adequak safUy for the cans of Huntington Beach. objective PF 2.4 Increase fue and safety awareness among the-public. s Item 11. - 120 HB -388- r 1`• � o we . I=Lsdbmjdi�� and City General Plan Utilities Element Within this Element of the City's General Plan, again "telecommunications" is cited and it is understood these types of facilities are critical infrastructure for the City of Huntington Beach now and particularly in the future. Gas Lunly,Te . m-munIL"6 % Goal U Maintain and � �. service p�bion to, sty of _ . _....... . ffup dagwn. aeh residences win g a � dal-g2k% or�tiCatitn, and electrical*Slmis are pro - `0 D 5J.1 cu=t levels of service' and faefflitam improved levets 9 xB -389- Item 11. - 121 A comprehensive review of all the various elements of the City's General Plan has not been conducted as yet, however it is clear through the few examples cited above there are significant"additional values' that are supported by the continued development of a robust and ubiquitous telecommunications network. Certainly aesthetics plays a role in the regulation of this land use but to only consider that value in your deliberation and overall decision making process would be a serious misunderstanding of the totality of this lifesaving and critical component to the City's overall future safety, heath, and economic vitality. Again there is much additional evidence that telecommunications will only continue to grow in terms of its importance in the provision of public safety, economic development, traffic demand management, and yet unforeseen but soon to be released e-medical applications. For all these reasons we need to begin to "balance" the total of all the "values" that this land use provides/supports and move away from the singularly "aesthetics" only considerations that have dominated the discussions over recent years. It's now time that the local regulatory environment begin to evolve in recognition of all the values presented herein. Conclusion We ask that the City's Planning Division look at the totality of the issues surrounding this critical land use and embrace the 'additional values" cited within your City's own General Plan. We also ask that you make the most responsible decision on this matter and represent this land use in a more balanced and accurate light to the decision makers as this project moves forward. As drafted, the proposed ordinance applies a heightened and overly inflated "aesthetic value" not applied to any other like land use (utilities) and in our opinion, is a waste of scarce City resources and an additional burden and cost that would have to be borne by all. In addition, in my.20 plus years working as a.professional public sector planner.at jurisdictions throughout the State, when the value of"aesthetics" must be measured against other values' that include "public safety" and economic development" the aesthetics considerations are in most (if not all) cases secondary and subjective by a large margin to the protection of the public's safety and economic vitality. Finally, please carefully review the attached uannotated comments' as there are many additional and significant concerns with the details of the proposed ordinance. Again, as is mentioned in our opening remarks, one area of significant concern to Calwa is the section of the regulations requiring the applicant to justify" the need for any future facility. This is not asked of any other land use or business and is not under the purview of the local planning and zoning authorities as it is a business decision that must be made by the applicant/private sector, and as such it should be removed in its entirety. 90 Item 11. - 122 xB -390- Thank you for taking the time to review our comments. We look forward to participating in this process as it progresses. Please feel free to contact me to discuss the substance of our comments and how we can better support our mutual goals. Best Regads. Sean Scully - - Board member Co-Chairman Regulatory Committee California Wireless Association 800 S. Pacific Coast Hwy#448 Redondo Beach, CA 90277 Office: (310) 378-8706 Mobile: (818) 426-6028 ...................... 1'! HB -391- Item 11. - 123 Cat',rva Comment t:We encourage the Ci if Huntington Beach to broaden their Calera Conmtent 3:Residential areas have asitioniview on this land use beyond the sole issue of"aesthetics"and recognize tncreasingiy become underserved by existing Y wireless neb?,roft.The original networks were the "addiitlo al values"that are supported by wireless communicaitons as it deployed along major travel corridors and addresses Id enhances public safetylemergency prepardeness services,economic then within the commercial and business development,traffic demand management(trip reductions),and many other general communities.The traditional business community has now evolved to include welfare and quality of life issues. residential neighborhoods with the grown.. Citv of Huntington Beach telecommuting and the"hone office".in addition,more residents continue to give up Zoning Text Amendment No. 09-002 their land tines In favor of wireless communications in an effort to reduce Legislative Draft household expenses.It Is strongly recommended that there he some recognition (August 2011) of the need for this land use within residential areas as they have now evolved as described. CAS(MArlbuted Antenna Systems)could be -- _ eneourtg d as an option unit$€n these more Wireless ommumea on ael - - seas ve areas. A. ose. This Section of the Zoning Code is to protect public safety,general Nvelfare,and _quali of life b re a the location her ht and h icalcharactenstics and provide f orderly and efficient placement of Wireless Communicatron�Facilities.in the City of Huntington Beach. \t�aadmor ecause of the potential negative aesthetic impacts of Wzreless: annurutica n Faczl.ities, visua z tan urtlnufion of properly vaTue�live City eii Tea Calwa Comment 2: wr commercial, industrial and other non-residential zones, screen mein from We respectfully view, and encourage co-location with other Wireless Co&inuri*tion Facilities. However, request evidence in �' support of the claim the Federal Telecommunications Act, specifically 47 U.S.C. Section.332(c)(7),preempts that tMrrreless local zoning where a Wireless Facility is necessary tgyemedy a significant gap m the Corrrmin(cations Wireless Provider's service. Consequently,whdie the,City determines that the Facility does Facilities ial has the not satisfy City planning and zoning standards'the Wireless.Provider.,may then choose to potential to � ., . - negatively impact establish Federal preemption because(i) a significant gap:in wireless coverage exists,and(ii) property values.we there is a lack of feasible alternative site locations. .A myriad of-factors are involved in are mare m theristudies determining if a gap is significant, sucli`as: w]�ethe the gap affects a commuter highway; the that confirm their is no such impact and n;:lture and character of the area and the number of potential users affected by the alleged lack ere will share this of service;whether the signal is weak or nonexistent,and:whether the gap affects a information, commercial district. Consequently-the City will require scientific evidence from an expert in the field demonsti;afmg the existence oft significant gap in service,and a lack,of feasible alternative sites--The applicant,ill be ired to pay for the cost of said expert opinion- B. Definitions."For the purpose-'.of#his Sectiosi,-the following definitions for the following terms shall apply: (3565-9102) �. "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..`(sssa-s102) 2. Co-Location or Co-Located. The location or placement of multiple Wireless Communication:Facilities which are either owned or operated by more than one service provider at a single location and mounted to a common supporting structure,wall or building. (356&-s102) 3. Completely Stealth. Any Wireless Communication Facility that has been designed to completely screen all aspects of the facility including appurtenances and equipment from public view. Examples of completely stealth facilities may include,but are not limited to, architecturally screened roof mounted antennas,fagade mounted antennas treated as architectural elements to blend in with the existing building, church steeples, fire towers, and flag poles and light standards of a typical diameter. Ca:-va Comment 4:Case:a stringiy mccm mends that this•ian?uage be removed.As is clearly articulated the proof of"signficant gad. is neither conclusive nor productive and serves to signiffcanYty incr, expense and delays.Cates would prefer that the City pursue an approach that would require the car-k.er meet a higher threshoid f. a<s etics in these more ore sensftive areas and not the additionai costs 09-2009.002/63261 Page 1 of 9 and delays in attempting to prove"significant aap'. €n essence+lee recommend an Frtm-M-Nization'by the use of development standards.it must be understood that the wrire(ess industry Is not interested in toe cieve€opnent of any wireless corr,murication facia Item 11. - 124 HB -392- if there is not a demonstrated need for said Sacaizy. Calwa Comment 5;A separate and distinct ition should be included for i9AS (Di5tributed Antenna System)and these types of faci€hies should be provided separate development reguiations and administrative process through the Department of Pubile Works in conjunction with an encroachment permit.Only those facilities that cannot meet —_sonabie development st-andards/regulations for facilities within the public right-of-moray eld be included within the purview of the Planning Department. 4. Ground Mounted Facility. Any wireless antenna that is affixed to a pole,tower or other freestanding structure that is specifically constructed for the purpose of supporting an antenna. (3568-9102,3779-10107) 5. Microwave Communication. The transmission or reception of radio communication at frequencies of a microwave signal(generally, in the 3 GHz to 300 GHz frequency SpeCtrUM). (3568-9/02) cwwa C=Menta' 6. Modified Facility. An existing Wireless Communication Facility where the antennas Separate: regulations!t€eveiap and/or supporting structure are proposed to be altered in any way from their existing -rent standards condition,including like-for-like replacement but excluding co-location.. a ministerial dry s Should be dedeveloped y 7. Pre-existing WirelessFacility. An Wireless Communicati6 n Fkili for which a . . �� setefy for building permit or conditional use permit has been properly issued'priar to the effective faauies proposed date of this ordinance, including permitted wireless antennas thathav not yet been within constructed so long such approval is current and licit ex iced:(3s6s�stoi), right-of--wag. g as pP p _ . 8. .Public Right-of-Way The area across, along, beneath,iii,on,over, under-,upcDn;-and within the dedicated public alleys,boulevards, courts,lies,places,roads,:sidewalks, streets, ways, private streets with public access easements-v�ritl iii.-the City's boundaries, and City owned properties,as they now exist or hereafter will exisi. 9. Roof Mounted. Any wireless antenna directly attached or affixed to the roof of an existing building,water tank, tower or stricture other than a telec6M"Munications tower. (3568-9102) 10. Stealth Techniques. Any Wireles ,.COmmuiiication Facility,including any appurtenances and equipment,which is designed;to blend intp_the surrounding environment_ Examples of Stealth Technique include,buff.are not limited eb monopalms/monopines. (35m-qm) 11.Utility Mounted-- Any wireless antenna mounted to an existing above-ground structure specifically designed and originally installed to support utilities such as but not limited to electricalpower lines;cable.televisi6n lines,telephone lines,non-commercial wireless service antennas, radio antennas, street lighting but not traffic signals,recreational Facility lighting, or any other utility which meets the purpose and intent of this definition. c3 8-9102,3779-10107) - 12. Wall.Mounted. Amy wireless antenna mounted on any vertical or nearly vertical surface of a building.or other existing structure that is not specifically constructed for the purpose of supporting an antenna{including the exterior walls of a building,an existing parapet, the side of a vaatertank,the face of a church steeple, or the side of a freestanding sign) such that the highest point of the antenna structure is at an elevation equal to or lower than the highest point of the surface on which it is mounted. (3568-91oz,3779-10/07) 13.Wireless Communication Facility or Facility or Wireless Antenna. An antenna structure and any appurtenant facilities or equipment that transmits electronic waves or is used for the transmission or receipt of signals that are used in connection with the provision of wireless communication service,including,but not limited to digital,cellular and radio service. C. Anplieability. This ordinance shall apply to all Wireless Communication Facilities which are erected, located,placed or modified within the City of Huntington Beach. D. Exceptions. The following Wireless Communication Facilities shall be exempt from this Ordinance. 09-2009-002/63261 Page 2 of 9 HB -393- Item 11. - 125 Calwa Comment?: This t on maybe in conflict with Government Code Section 65850.6 Collocation Facilities.Calwa recommends that additional clarifications be made to.this section to ensure its consistency with cited State L.aw. 1. Any Facility,which is subject to a previously approved and valid entitlement,may be modified within the scope of the applicable permit without complying with these .. regulations. However,modifications outside the scope of the valid entitlement or any modification to an existing facility that does not have a previously approved and Nralid entitlement is subject to the requirements of this ordinance. 2. Any antenna structure that is one meter(39.37 inches) or less in diameter that is design to receive direct broadcast s-a-tFffife service,me u g irect- o- ome satellite service for television purposes, as defined by Section 207 of the Telecommunication Act of 1996, Title 47 of the Code of Federal Regulations, and any interpretive decisions thereof. - 3. Any antenna structure that is two meters(78.74 inches or less in_diatneter located in comm ial or industrial zones and is Msigned to trans.mit or receive o co munication _ by satellite antenna. -- 4. 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. - - - 5. Any antenna structure used by authorizedia aateur.radio' stations licensed by the FCC. E. Process to Install and Operate Wireless Communication Facilities. No Facility shall be installed anyvtrfiere in the City Vithout first securing either a Wireless Permit or a Conditional Use Permit as required below. 1. Wireless Permit Al piicatitinl The app7,ieantshali apply to the Planning and Building Depart Tent for a Wireless Permit by submitting a completed Wireless Permit Application ("Appilxcation")and paying:all tequired,fees. The Application shall be in the form apptbved by the Director, and-at a miniinix-n shall provide the following information: a_' :Precise location of the Facility. b. Evidence that the Facility is compatible with the surrounding environment or that the facility is architectarally integrated into a structure. c. Evidence that tfie facility is screened or camouflaged by existing or proposed topography,vegetation,buildings or other structures as measured from beyond the boundaries of the site at eye level(six feet). d. Evidence that the massing and location of the proposed facility are consistent with surrounding structures and zoning districts. e. Evidence that no portion of the Facility will encroach over property lines. f. Property owner authorization or evidence of fee ownership of property where the Facility will be installed-. 09-2009.002/63261 Page 3 of 9 Item 11. - 126 HB -394- - CaNva Comment a,AddMonal language should be included here that would exempt a completely stealthed€acidity from this requirement In addition, Incentives for lS being"required"mould be greatly anhanced if all coilocatfons n adminSstWively processed.Certainty Government Coda sewn 65850 id also be cited and this czrdinance should be consistent vOth said State ucatio s. g. License, lease,franchise, or other similar agreement from the City for any Facility to be placed over,within,on, or beneath City property. h. Locations of all other Wireless Antennas within.1,000 feet of the proposed facility.: Co-location of�"ii-elsss Antennas shall.be re�uired whew feasible whene�rer a beuT Wireless Antenna is proposed within 1,000 feet of any existing Wireless A,atenna. i. Any other relevant information as required by the Director of Planning and Building. Ca.Nm Comment.0:The The planning and Building Department will initially review and determine if the City deri strongly Application is complete. The City may deem the Application ipcomplete and require re- fecliit€es in this class of submittal if any of the above information is not provided:::!;- - 2. Director Approval. Following submittal of a complete Apphcat 6n�th6 City will :. determine whether the Facility may be approved by thy:Director;:or w,ho er a Conditional Use Permit is required. Wireless Permit applications wi31 b-processedb' upon the location and type of antennas defined in herein.Althougli.,said,classifications ge-assigned at project intake, a re-evaluation of antenna classifications may occur at any point in the process including at the time of review by the Director, Zoning Administrator,Planning Commission or City Council. =:' Carwa Corrn:er.-t 9: Again,MB should A Facility not subject to any other discret 6nary appiflval.may.be administratively consider some approved by the Director by issuing a Wireless Permit if.it is:° addifowl helrbt above -ring to 4FUrther �d tivize c o-iocations. a. Co-located on an existing approved Wireless Facility,does not exceed the existing Wireless Facility heights, and.,mploy;t Stealth Techniques such that the co-located Wireless Facility is compatible with surrounding buildings and land uses; or Calm Comment iO:if tip facility is a"Carnpietely b. A-modified Facility>:hat complies wig the base district height limit plus up to an Stealth"type If actlity then additional 10 feet o£height as petnntted inSection 230.72 and compatible with �ai�stf:er rt isrnu:ground or motility surr uildirigs and land rises by incorporating stealth techniques;or mounted should[smoke rfo difference.The[amt porl.ian oz. this sentence should be c; A Facility that complies with the a eight limit plus up to an additional strict art,"...arsd is not groin" -10 feet of height as p6irmitted in Section 230.72, is Coinpletely Stealth, and is not or utitity mounted.' :ground or utility mounted- The Director may require"conditions of approval of the Facility in order to minimize adverse healtb>.safety.aiid welfare impacts to the community. A decision of the Director to grant a Wireless Permit shall become final ten(10)days following the date of the decision unless an appeal to the Planning Commission is filed as provided in Chapter 248 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO). The Director shall issue findings of approval that the Facility meets the above criteria and is not a detriment to the health, safety and welfare of the community. 3_ Zoning Administrator Approval. In the event the Director determines that the applicant does not meet the requirements for Director approval of a Wireless Permit, then the applicant shall apply for a Conditional Use Permit(CUP) to the Zoning Administrator pursuant to Chapter 241 of the HBZSO_ Notwithstanding any other provisions of the 09-2009.002/63261 Page 4 of 9 HB -395- Item 11. - 127 Calwo Co-nment ii:Insert t-he following"_unless located k within the public right of way_ I B BZSO, any new ground or utility mounted wireless facilities shall be required to obtain:a CUP. CUl'applications shall also include the same information required under subsection E1 The Zoning Administrator may require,as a condition of approval of the CUP that the applicant minimize significant adverse impacts to the community and public visual resources by incorporating one or more of the following into project design and construction: a. Completely Stealth installations; CaKva Comment 12:Flow b.. Stealth Techniques,,_—-- is a reality - - --- -- - — -__ - determinedIdefined to be 'ob�solete".calwa e. Co-location and locating Facilities within existing building envelopes; strong y recon,rr�n a - ie visual Ci}refrain from d_ ColoriZationorlandse�ingom p;r-'o,m:, ne —removing existing n�c'e,`; .,-,:•_' .. ,�._ facilities. e. Removal or replacement of Facilities that are obsolete-_ 1 caiw,a Comment 13. Further conditions of approval of a facility CUP may be imposed as provided in Chapter Calwa strongly 241 of the HBZSO. The Zoning Administrator's decision may be appealed to the mcomm nds that an Planning Commission in accordance with Chapter-249;of the HBZSO. alternative set of rogulatio€s:be - c3eueioped to address 4. Desim Review. Design review shall be;requiredl"for any Wireless Communication in a:.ire efficient and Facilities pursuant to the HBZSO as well as those located;on public right-of-way and on or effecFacilities€hat co lase within 300 feet of a residential dishict or use iii���he City EQ�IL E{e�tl��i Ci�l�V2 lo,,_,ated in the'public = - r€ I,f-cf-may Notwithstanding any other provisions of the fiBZSO design review is not required for Wireless Communication Fb-cilities.that may be approved by the Director pursuant to subsection.E:2.Mii-e6tor Approval}above and have any appurtenant facilities and equipment located underground or tivithin-an'existing building or existing enclosure. F. Apnlicat t May Assert Federal Preemption At Time of Appeal To Planning Commission L.I if the decision on the Wireless Permit or Conditional Use Permit is appealed(either by applicant or an aggrieved party) to the Planning Commission,the Applicant may assert that Federal Law preempts the City from denying the application because denial would effectiv&lyprohibit Wireless Service. The applicant shall pay a Denial of Effective Sen7iee appeal fee in an amount to be established by City Council Resolution, which amount shall be the estiinated cost for the City to retain an independent; qualified consultant to evaluate any technical aspect of a proposed Wireless Communications Facility,including,but not limited to,issues involving whether a significant gap in coverage exists. A Denial of Effective Service appeal must be submitted prior to the expiration of the appeal period for a Wireless Permit or Conditional Use Permit. 2. The Director shall establish the forth of the Denial of Effective Service appeal. At a minimum,the Applicant shall provide the following information as part of its appeal: In order to prevail in establishing a significant gap in coverage claim the applicant shall establish at minimum the following based upon substantial evidence: a. Evidence demonstrating the existence and nature of a significant gap in service in the vicinity of the proposed Facility, including but not limited to whether the gap 09-2009.002/63261 Page 5 of 9 Calhv t Comment 14: Need input from s99al Professional. as to Item 11. - 128 HB -396- C`ty£s ability to require his` Gatwar Comment IS: deed input From legal professional as to r-ity's ability to require this? pertains to residential in-building, commercial in-building coverage, in-vehicle coverage,and/or outdoor coverage. b. Evidence demonstrating that the applicant has pursued-other feasible sites for locating the Facility;but that they are unavailable on commercially practicable terms. c. E-vidence demonstrating time radio frequency signal strength transnmissiaa . requirements and objectives that the applicant has established for the Southern California region,and for the City of Huntington Beach.. d. Radio frequency propagation maps demonstrating.actuaf*branlsi iussion levels inthe . - vicinity of the proposed Facility site, and.any aAterrnative:sites:considered. e. Radio frequency drive tests deinonstratirng actual transmission levels in the_vicinity of the proposed Facility site, and any alteinaii�ie sites'conarider f. Reports regarding the applicant's monthly volutzne ofniobile telephone calls completed,not completed, dropped, handed-of,not haii&d-off originated and not originated for the signal area to be covered by the groposeff acility. g. Any proprietary information disclose t6 the city or time consultant is deemed not to be a public record, and shall remain confidential-and not to be disclosed to any third party without the express con eznt of the ap&cant,unless othem ise required by law, In the event the applicant does not provide this information,the City may conclusively presume that_n4 denial of effective senice exists. All of the'nfornmation noted ab6ve shall be submitt6d to the City w ithinn 30 days of the filing of the Denial of Effective ScuMce appeal unless an extension is granted by the Director_ 3. The Denial of Effeetivc Sery-ice appeal shall be considered concurrently with the Wireless Permit or CUP bppeal hearing before.the PlammmmiAg Commission. Prior to the scheduling of the public hearing on the Wireless Permit or CUP appeal,the City Attorney shall be authorized to issue*4dxaministrative subpoenas to compel production of such do6uzn6nts,testimony and other evidence relevant to the applicant's denial of effective service claims. G. Wireless Conmaiinication Facility Standards. The following standards shall apply to all Wireless commuhicationfacilities. r3779-10ro-,� 1. Screening. All screening used in conjunction with a wall or roof mounted Wireless Antenna shall be compatible with the architecture of the building or other stricture to which it is mounted,including color,texture and materials. All ground or utility mounted facilities shall be designed to blend into the surrounding environment, or architecturally integrated into a building or other concealing structure. (3568-9102) 2. Equipment/Accessory Structures. All equipment associated with the operation of the Wireless Antenna,including but not limited to transmission cables, shall be screened in a manner that complies with the development standards of the zoning district in which such equipment Is located and Section 230.76. Screening materials and support structures housing equipment shall be architecturally compatible with surrounding structures by 09-2009.002/63261 Page 6 of 9 HB -397- - Item 11. - 129 Gatwa Comment 16.Again additional language should be included here that would exempt a completely stealdted facility from this requiremeat.In addition, Incentives For Jhis being'required'would be greatly enhanced if all collocations were adrntnis*tively processed.certainly Government Code section 65850 should also be cued and this orsrmance should be consistent with said State Collocation Lavts. duplicating materials and design in a manner as practical as possible. Chain lick fencing and barbed wire are prolubited. (356s-9io2) 3. General Provisions. All Wireless Communication Facilities shall comply with the Huntington Beach Urban Design Guidelines. ps58-91o2) 4. Building Codes: To ensure the structural integrity of Wireless Communication Facilities, the owners of a Facility shall ensure that it is maintained in compliance with standards -eod facilities that are published by the Electronic Industries Association,as amended from time to time. (3568-9102) 5. 'Co-Location, Co-location of ground mounted Wirolegs..=4iifez3zias shall be required-where feasible whenever anew Wireless Anu wa is proposed within 1,O.O feet of any existing IA4 Bless'An4en 6. Federal and State Requirements: Ali Wireless Communicafion FacilitieS.Mu'st.m.6et or exceed current federal and state laws, standards and regulations of the FCC; and any other agency of the federal or state government with4he authority to regulate Wireless Communication Facilities. (3568-9102) _ = 7. Interference: To eliminate interference, at all-times,other than duiing:the 24-hour cure period,the applicant shall comply with all FCC_ataiadards and regulations regarding interference and the assignment of the us -of the radio frequency-spectrum. The applicant shall not prevent the City of Huntington Beach of the countywide system from having adequate spectrum capacity*ozr the City's 800 MH `vbice and data radio frequency systems. The applicant-shall cease operation`of any Wireless Antenna causing interference with the City's facilities immediaiel upori-the expiration of the 24-hour cure period until the cause of tho jiterference is eliminated. (3779-10107) Galwa Corriment 17 �S. Lighting: Alf6utside lighting shall be directed to prevent"spillage"onto adjacent What is the purpess of this requireraen_7 properties;unless required by the FAA.or otlier applicable authority, and shall be shown Gan a s?torrgl on the'site plan and eleV3tipI15. (3568-9102;3779-10107) recommends;that this requirement i 51r1c1=erE.sy it is Maintenance: All facilities.-and appurtenant equipment including landscaping shall be s rrrelev-ant"to the maintained to remain consistent with the original appearance of the Wireless Antenna. Cis pur�*:mr;. Ground mounted facilities shall be covered with anti-graffiti coating. (3568-9102,3779-lo107) 10. Monito_rin�r. The applicant shall provide a copy of the lease agreement between the property owner and the applicant prior to the issuance of a building permit. 11. Si ng_s: The Wireless Antenna shall not bear any signs or advertising devices other than owner identification, certification, warning, or other required seals of signage. (3568-9102, 37 79-1 010 7) 12. Landscaping_: Landscape planting, irrigation and hardscape improvements may be imposed depending on the location, the projected vehicular traffic, the impact on existing facilities and landscape areas, and the visibility of the proposed Wireless Antenna, Submittal of complete landscape and architectural plans for review and approval by the Directors of Public Works and Planning and Building Departments may be required. (3779.10/07) 13.Utility Agreement: If the proposed facility will require electrical power or any other utility services to the site,the applicant will be required to furnish the City's Real Estate 09-2009.002/63261 Page 7 of 9 Item 11. - 130 HB -398- - ca a Comment 19: .€eta Comment 18: Need input Ca€wa strongly from legal professional as to x eccatrmends mat an -jqtentative sqt Gf City`s ability to require this? dations be .toped to address t„a more efficient and Services Manager either a drafted utility franchise agreement between the City of of-ect€ve manner Huntington Beach and the applicant to place those lines in the public right-of-way,or a thase faciEffies that coutd be tocated in written statement from the utility company that will be supplying the power or other the"pubfic dgttW, services,that they accept all responsibility for those lines in the public right-of-way- (3779- way". 10107) H. Facilities on Public Property. Any Wireless Communication Facility to be placed over, within,on, or beneath City property shall obtain a license,lease;franchise, or other sixr ar agreement from.the City prior to issuance of a Wireless Pem'Lit or Conditional Use Permit.. (3779-10./07) 1. Facilities in the Public Right-of-Way. Any Wireless Conlm-uhicatioh,Facility to be placed over,within, on or beneath the public right-of-way shall obtain an encroachment permit from the Department of Public Works acid comply with the Undergroun_diz�g Ordinance(Chapter 1.7.64 of HBIN1C).;lp.6s 9102,37r$-10 wj.: J. Facility Removal. Wireless communication facilities affectin' the public view ': located in areas designated Water Recreation, Conservation,Parks and Shoreline, and Public Right of Ways shall be removed in its entirety within six(6)mobths of termination of use and the site restored to its natural state. (377s-1 a/07) K. Cessation of Operation. 1. Abandonment. Within thirty(30) calendar.days,of cessation of operations of any Wireless Communication Facility approved under this Section, the operator shall notify the Director in writing. The Wirelbss'Antenna shall be.deet zed abandoned pursuant to the following sections unless: {35M-9102,3779-10W),._ .; a. The City has determined that the operator has resumed operation of the Wireless Communication Facility within six(6)months of the notice; or (3568-9102,3779-10107) b. The,City has received written notification of a transfer of the Wireless Communication Facility.,(3568-910Z 37?4-10107) 2. City Initiated Abandonment'A Wireless Antenna that is inoperative or unused for a period of six(6) continuous months shall be deemed abandoned. Written notice of the City':.s determination of abandonment shall be provided to the operator of the Wireless Antenna and the owner(s).Of the premises upon which the antenna is located- Such notice may be delivered in person,or mailed to the address(es)stated on the permit application, and shall be deemed abandoned at the time delivered or placed in the mail. (3566-9102,377s- 10107) 3. Removal of Abandoned Wireless Antenna: The operator of the Wireless Antenna and the owner(s)of the property on which it is located, shall within thirty(30) calendar days after notice of abandonin(mt is given either(1) remove the Wireless Antenna in its entirety and restore the premises, or(2) provide the Director with written objection to the City's determination of abandonment. (3779-10107) a. Any such objection shall include evidence that the Wireless Antenna was in use during the relevant six- (6)month period and that it is presently operational. The Director shall review all evidence,determine whether or not the Facility was properly deemed abandoned, and provide the operator notice of its determination. (3568-91m, 3779-10107) 09-2009.002/63261 Page 8 of 9 HB -399- Item 11. - 131 Cahva Comment 20,The process for remediation i andaaed facilities should follow whatever processes currently exists and is foilawedipracficed by-ffie City.It this is the existing policy Galwa has no Issues with this process.If this is alternative to current policy for other abandoned private land usestfacilties then Calwa requests thst it be removed and replaced with the same language that constitutes the current pal€clesiregulations. b. At any time after thirty-one(31) calendar days following the"notice of abandonment, or irrL ediately following a notice of detennination by the Director, if applicable, the: City may remove the abandoned Wireless Antenna ancUor repair any and all damage to the premises as necessary to be in compliance with applicable codes. The City may,but shall not be required to, store the removed Antenna(or any part thereof). The owner of the premises upon which the abandoned Antenna was located,and all- Prior operators of the.Antenna, shall be jointly liable for the entire cost of such reiriav_al�_repatr;restoratl_op_aud/ar storage, an d steal-remit pz!mentta_Iff�_Cjtu -- promp y a .er demandereo is made. xu e rty may, In eu o storingt e removed. Wireless Antenna, convert it to the Cit_y's use, sell it, or dispose of it in any manner deemed appropriate by the City. .77 t . 09-2009.002/63261 Page 9 of 9 Item 11. - 132 HB -400- f C PCIA November 2,2011 RECEIVED ffA ELE'CTRONIC"L �0� p 2 2011 Ricky Ramos, Senior Planner City of Huntington Beach -Department of Planning and Building B�tildlt+l 2000 Main Street Huntington Beach,CA 92648 Re: City of Huntington Beach]Draft Wireless Communications Facilities Ordinance Dear Mr.Ramos, PCIA The Wireless Infrastructure Association CTCTA')writes in response to the proposed amendments to the City of Huntington Beach's existing Wireless Communication Facilities Ordinance. PCA appreciates the opportunity to express its concern regarding the proposed ordinance before being discussed at the upcoming November 8t'planning study session. PCIA.is concerned with the tone of the ordinance and the limitations it could place on the deployment of wireless facilities. We encourage the City to craft an ordinance that enables deployment,rather than hinders it,by considering the comments submitted by the wireless industry and PCIA's model wireless facility siting ordinance, attached herewith. PCTA is the national trade association representing the wireless infrastructure industry.PCIA's members develop,own,manage,and operate towers,rooftop wireless sites,and other facilities for the provision of all types of wireless,telecommunications, and broadcasting services.PCIA and its members partner with communities across the nation to effect solutions for wireless infrastructure deployment that are responsive to the unique sensitivities and concerns of each community. Wireless infrastructure is essential to the deployment of wireless service. Wireless services from basic voice communication to broadband require robust wireless infrastructure. These services enable communication,productivity,mobility, and public safety. Residents and businesses rely on wireless services to navigate their daily lives and compete in a global economy. It is estimated that by 2015, a majority of Americans will utilize a wireless device as their primary Internet access tool. Wireless service is therefore essential to access the vast resources and benefits the Internet enables, from commerce to political inclusion. Farther,more than 70%of all emergency calls each day are placed with a wireless device—without wireless infrastructure,the ability to access first responders is significantly hindered. Without changes to the proposed ordinance,the City of Huntington Beach will stifle the ability to deploy the inha.structure necessary to provide the services that consumers,businesses,and first responders demand and require. While we limit our analysis for brevity,we have reviewed the proposed Ordinance and respectfully request that the City make the revisions highlighted by the California wireless Association C'CalWa')in its letter dated September 12,2011. PCIA generally supports the comments raised by other members of the wireless industry. HB -401- - Item 11. - 133 We are particularly concerned about§§230.96(D)(2)-(3), which gives the Director and Zoning Administrator a great deal of discretion to add onerous requirements as conditions on approval of permit applications. These requirements could be onerous and cost-prohibitive to the deployment of wireless infrastructure. PCIA is also concerned by the general tone of the proposed ordinance and particularly the lack of separate and distinct regulations for addressing proposed facilities within the City's public right-of-way,its continued stated intention to discourage facilities within residential areas,and the onerous requirements to"justify"the need for a proposed wireless communications facility. As a general matter,good wireless infrastructure regulations do several things, including: ® Encourage the deployment of the latest technology and advanced services for the benefit of both residents of the territory and any visitors; ® Ensure towers are not placed without proper permitting; Ensure towers are placed safely and comply with necessary local and federal requirements; ® Incent joint use of facilities if feasible; ® lylnimize to greatest extent possible the cost to place towers; ® Establish reasonable timeframes for all approvals to be given. PCIA is concerned that the current proposed ordinance will not accomplish these goals and,thus, will significantly hamper future wireless service in Huntington Beach. Please find attached PCIA's model wireless facility siting ordinance,which has been utilized and tailored by communities across the U.S.to suit their unique needs and concerns. PCIA urges the City of Huntington Beach to use our model ordinance to rewrite the proposed ordinance amendments and address the concerns raised by CalWa and the wireless industry. In conclusion, PCIA urges Huntington Beach to take this opportunity to work with the wireless industry to rewrite its ordinance to enable the deployment of a robust wireless network. The wireless services upon which the citizens and businesses of Huntington Beach rely are themselves reliant upon the responsible deployment of wireless facilities, and the City should collaborate with industry to craft regulations to facilitate such deployment. We appreciate your support to further our mutual goal of implementing and deploying responsible and timely wireless infrastructure to serve the needs of the citizens, businesses,and first responders in Huntington Beach. With best regards, A. Kara Leibin Azocar Policy Analyst PCIA—The Wireless Infrastructure Association 901 N.Washington St., Suite 600 Alexandria,VA 22314 703-535-7451 Kara.Azocar ate, cia..com Enclosures:PM Model Wireless Facility Siting Ordinance 2 Item 11. - 134 HB -402- P" CIA C P VVirdle...ss 11fF a -umre Asudaftn MODEL WIRELESS TELECOMMUNICATIONS FACILITY SITING ORDINANCE PCIA—THE WIRELESS EVFRASTRUCTURE ASSOCIATION 2010 About PCIA PCIA-The Wireless Infrastructure Association is the principal trade association representing the companies that make up the wireless telecommunications infrastructure industry.Its members include the carriers, infrastructure providers and professional services firms that own and manage more than 125,000 telecommunications facilities throughout the world. For more information,please go to www_pcia_com. HB -403- Item 11. - 135 MODEL N4 RELESS TELECOMMUNICATIONS ORDINANCE L Purpose and Legislative Intent. The purpose of this Wireless Telecommunications Ordinance is to ensure that residents,public safety operations and businesses in[Jurisdiction]have reliable access to wireless telecommunications networks and state of the art communications services while also ensuring that this objective is achieved in a fashion that preserves the intrinsic aesthetic character of the community and is accomplished according to [Jurisdiction's]zoning,planning, and design. standards. The Telecommunications Act of 1996 preserved,with certain limitations,local government land use and zoning authority concerning the placement, construction, and modification of wireless telecommunications facilities. To accomplish the above stated objectives and to ensure that the placement, construction or modification of wireless telecommunications facilities complies with all applicable Federal laws and is consistent with[the Jurisdiction's] land use policies, [the Jurisdiction] is adopts this single, comprehensive,wireless telecommunications ordinance. No provisions of this Ordinance shall apply to the siting of Distributed Antenna Systems (DAS)or wireless facilities located within and intended to provide wireless coverage within a structure. This Ordinance establishes parameters for the siting of Wireless Telecommunications Facilities. By enacting this Ordinance it is [the Jurisdiction's] intent to: (1) Ensure [Jurisdiction] has sufficient wireless infrastructure to support its public safety communications throughout[Jurisdiction];' (2) Ensure access to reliable wireless communications services throughout all areas of [the Jurisdiction1;2 (3) Encourage the use of Existing Structures for the collocation of Telecommunications Facilities;3 (4) Encourage the location of Support Structures,to the extent possible, in areas where any potential adverse impacts on the community will be minimized; k Many public safety operations utilize commercial networks;this trend will continue to grow as commercial providers further deploy wireless broadband systems. 2 This is important because wireless users depend on their mobile devices everywhere—in their homes and offices, and while on travel. s A core policy goal here is to encourage co-location of wireless facilities on existing structures. 1 Item 11. - 136 xB -404- (5) Facilitate the responsible deployment of Telecommunications Facilities in residential areas to ensure comprehensive wireless services across [Jurisdiction]; (6) Minimize the potential adverse effects associated with the construction of Monopoles and Towers through the implementation of reasonable design, landscaping, and construction practices; (7) Ensure public health, safety,welfare,and convenience. lI. Definitions. For the purposes of this Ordinance,the following definitions apply: Abandon—Occurs when an owner of a Support Structure intends to permanently and completely cease all business activity associated therewith. Accessory Equipment—Any equipment serving or being used in conjunction with a Telecommunications Facility or Support Structure. This equipment includes,but is not limited to,utility or transmission equipment,power supplies, generators, batteries,cables,equipment buildings, cabinets and storage sheds, shelters or other structures. Administrative Approval—Zoning approval that the[Zoning Administrator] or designee is authorized to grant after Administrative Review_ Administrative Review--Non-discretionary evaluation of an application by the[Zoning Administrator] or designee.This process is not subject to a public hearing.The procedures for Administrative Review are established in Section IV E of this Ordinance. Antenna--Any structure or device used to collect or radiate electromagnetic waves for the provision of services including, but not limited to, cellular, paging,personal communications services(PCS) and microwave communications. Such structures and devices include,but are not limited to,directional antennas, such as panels, microwave dishes and satellite dishes,and oranidircctional antennas, such as whips. This definition does not apply to broadcast antennas, antennas designed for amateur radio use, or satellite dishes designed for residential or household purposes. Collocation-- The act of siting Telecommunications Facilities on an Existing Structure without the need to construct a new support structure and without a Substantial Increase in the size of a Existing Structure. Carrier on Wheels or Cell on Wheels('COW") --A portable self-contained Telecommunications Facility that can be moved to a location and set up to provide wireless services on a temporary or emergency basis. A COW is normally vehicle-mounted and contains a telescoping boom as the Antenna support structure. 4 This definition is consistent with the FCC's Declaratory Ruling on Wireless TnRastrructure Siting_ 2 HB -405- Item 11. - 137 Distributed Antenna Systems C DAS")—A network of spatially separated antenna nodes connected to a common source via a transport medium that provides wireless service within a geographic area or structure. Existing Structure—Previously erected Support Structure or any other structure, including but not limited to,buildings and water tanks,to which Telecommunications Facilities can be attached. Major Modifications--Improvements to existing Telecommunications Facilities or Support Structures that result in a Substantial Increase to the Existing Structure. Collocation of new Telecommunications Facilities to an existing Support Structure without Replacement of the structure shall not constitute a Major Modification. Minor Modifications--Improvements to Existing Structures that result in some material change to the Facility or Support Structure but of a level, quality or intensity that is less than a Substantial Increase. Mirror Modifications include the Replacement of the structure. Monopole--A single, freestanding pole-type structure supporting one or more Antenna_ For purposes of this Ordinance, a Monopole is not a Tower. Ordinary Maintenance--Ensuring that Telecommunications Facilities and Support Structures are kept in good operating condition. Ordinary Maintenance includes inspections,testing and modifications that maintain functional capacity, aesthetic and structural integrity; for example the strengthening of a Support Structure's foundation or of the Support Structure itself. Ordinary Maintenance includes replacing Antennas of a similar size,weight, shape and color and Accessory Equipment within an existing Telecommunications Facility and relocating the Antennas of approved Telecommunications Facilities to different height levels on an existing Monopole or Tower upon which they are currently located.5 Ordinary Maintenance does not include Minor and Major Modifications. Replacement-- Constructing a new Support Structure of proportions and of equal height or such other height that would not constitute a Substantial Increase to a pre-existing Support Structure in order to support a Telecommunications Facility or to accommodate Collocation and removing the pre-existing Support Structure. Stealth Telecommunications Facilitys --Any Telecommunications Facility that is integrated as an architectural feature of an Existing Structure or any new Support Structure designed so that the purpose of the Facility or Support Structure for providing wireless services is not readily apparent to a casual observer. Substantial Increase: Occurs when: s The description of antenna swaps as"ordinary maintenance"is important because carriers regularly upgrade antennas as part of periodic network improvements. 6 The decision to employ stealth technology involves a variety of engineering,structural and financial factors,and should be made by the network operators. This definition is taken from the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas. 3 Item 11. - 138 HB -406- - (1) [t]he mounting of the proposed antenna on an Existing Structure would increase the existing height of the Existing Structure by more than 10%, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet,whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or (2) [t]he mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved,not to exceed four, or more than one new equipment shelter; or (3) [t]he mounting of the proposed antenna would involve adding an appurtenance to the body of the Existing Structure that would protrude from the edge of the Existing Structure more than twenty feet,or more than the width of the tower structure at the level of the appurtenance,whichever is greater, except that the mounting of the proposed antenna-may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or (4) [t]he mounting of the proposed antenna would involve excavation outside the current Existing Structure site, defined as the current boundaries of the leased or owned property surrounding the Existing Structure and any access or utility easements currently related to the site. Support Structure(s)—A structure designed to support Telecommunications Facilities including, but not limited to,Monopoles,Towers,and other freestanding self-supporting structures. Telecommunications Facility(ies) --Any unmanned facility established for the purpose of providing wireless transmission of voice, data, images or other information including,but not limited to, cellular telephone service, personal communications service(PCS), and paging service. A Telecommunication Facility can consist of one or more Antennas and Accessory Equipment or one base station_ Tower--A lattice-type structure, guyed or freestanding,that supports one or more Antennas. M. Approvals Required for Telecommunications Facilities and Support Structures. (A) Administrative Review (i) Collocations and Minor Modifications shall be permitted in any zoning district after Administrative Review and Administrative Approval in accordance with the standards set forth in this Ordinance. (ii)New Support Structures that are less than sixty(60)8 feet in height shall be permitted in any zoning district except residential after Administrative Review and Administrative Approval in accordance with the standards set forth in this Ordinance_ s Sixty feet is a suggested height but actual height requirements may vary based upon local topography. 4 HB -407- Item 11. - 139 (iii) Stealth Telecommunications Facilities that are less than sixty(60)feet in height shall be penmitted in any residential district after Administrative Review and Administrative Approval in accordance with the standards set forth in this Ordinance. (iv) Stealth Telecommunications Facilities up to 150 feet shall be permitted in any zoning district other than residential after Administrative Review and Administrative Approval in accordance with the standards set forth in this Ordinance except as noted above. (v)New Support Structures up to one hundred ninety-nine(199) feet in height shall be permitted in any Industrial District after Administrative Review and Administrative Approval in accordance with the standards set forth in this Ordinance. (vi)Monopoles or Replacement poles located in utility easements or rights-of- way shall be permitted in any zoning district after Administrative Review and Administrative Approval in accordance with the standards set forth in this Ordinance. (vii) The use of COWs shall be permitted in any zoning district after Administrative Review and Administrative Approval in accordance with the standards set forth in this Ordinance if the use is not otherwise exempt. If the use of the COW is either not in response to a declaration or emergency, or will last in excess of one hundred-twenty(120) days,Administrative Review and Administrative Approval shall also be required. (B) Special Permit.9 Telecommunications Facilities and Support Structures not permitted by Administrative Approval shall be permitted in any district upon the granting of a Special Permit from the [Zoning Board] in accordance with the standards set forth in this Ordinance. (C) Exempt. Ordinary Maintenance of existing Telecommunications Facilities and Support Structures,as defined herein, shall be exempt from zoning and permitting requirements. In addition,the following facilities are not subject to the provisions of this Ordinance: (1) antennas used by residential households solely for broadcast radio and television reception; (2) satellite antennas used solely for residential or household purposes; (3) COWs placed for a period of not more than one hundred twenty(120)days at any location within [the Jurisdiction] after a declaration of an emergency or a disaster; and (4)television and AM/FM radio broadcast towers and associated facilities. s This process refers to whatever quasi-judicial process the Jurisdiction already has in place. Such processes are also known as"special use"and"conditional use"among other names. Jurisdictions should conform this section to their existing language- 5 Item 11. - 140 HB -408- IV. Telecommunications Facilities and Support Structures Permitted by Administrative Approval. (A) Telecommunications Facilities Located on Existing Structures (1) Telecommunications Facilities are permitted in all zoning districts when located on any Existing Structure subject to Administrative Approval in accordance with the requirements of this Part. (2) Antennas and Accessory Equipment may exceed the maximum building height limitations within a zoning district,provided they do not constitute a Substantial Increase. (3) Minor Modifications are permitted in all zoning districts subject to Administrative Approval in accordance with the requirements of this Part. (B) New Support Structures (1) New Support Structure less than sixty(60) feet in height shall be permitted in all zoning districts except residential districts in accordance with the requirements of this Part. (2) Stealth Telecommunications Facilities that are less than sixty(60)feet in height shall be permitted in any residential district after Administrative Review and Administrative Approval provided that it meets the applicable Stealth Telecommunications Facility standards in accordance with this Ordinance (3) New Support Structures up to one hundred ninety-nine (199) feet in height shall be permitted in all Industrial Districts in accordance with the requirements of this Part. The height of any proposed support structure shall not exceed the minimum height necessary to meet the coverage or capacity objectives of the Facility. The setback of the structure shall be governed by the setback requirements of the underlying zoning district. (4) A Monopole or Replacement pole that will support utility lines as well as a Telecommunications Facility shall be permitted within utility easements or rights-of-way,in accordance with requirements of this ParLIO (a) The utility easement or right-of-way shall be a minimum of one hundred(100)feet in width. 19 This section allows for efficient use of public rights-of-way for the provision of wireless services. 6 xB -409- Item 11. - 141 (b) The easement or right-of-way shall contain overhead utility transmission and/or distribution structures that are eighty (80) feet or greater in height. (c) The height of the Monopole or replacement pole may not exceed by more than thirty (30)feet the height of existing utility support structures. (d) Monopoles and the Accessory Equipment shall be set back a minimum of fifteen(15) feet from all boundaries of the easement or right-of-way. (e) Single carrier Monopoles may be used within utility easements and rights-of-way due to the height restriction imposed by Subsection(c) above. (f) Poles that use the structure of a utility tower for support are permitted under this Part. Such poles may extend up to twenty(20) feet above the height of the utility tower. (5) Monopoles or Replacement poles located on public property or within public rights-of-way that will support public facilities or equipment in addition to Telecommunications Facilities shall be peri itted in accordance with requirements of this Part_ Examples include,but are not limited to,municipal communication facilities, athletic field lights,traffic lights, street lights,and other types of utility poles in the public right-of- way. (C) Stealth Telecommunications Facilities (1) Stealth Telecommunications Facilities shall be permitted in all zoning districts after Administrative Review and Administrative Approval in accordance with the requirements below. Stealth facilities in residential areas must not exceed sixty(60) feet and comply with the requirements below in order to qualify for Administrative Review. (a) Antennas must be enclosed, camouflaged, screened, obscured or otherwise not readily apparent to a casual observer. (b) Existing Structures utilized to support the Antennas must be allowed within the underlying zone district. Such structures may include, but are not limited to, flagpoles,bell towers, clock towers, crosses,monuments, smoke stacks,parapets, and steeples. (c) Setbacks for Stealth Facilities that utilize a new structure shall be governed by the setback requirements of the underlying zoning district. Item 11. - 142 xB -410- (D) COW Facilities and Minor Modifications (1) The use of COWS shall be permitted in any zoning district after Administrative Review and Administrative Approval in accordance with the standards set forth in this Ordinance if the use of the COW is either not in response to a declaration or emergency by the Governor or will last in excess of one hundred-twenty(120)days. (E) General Standards,Design Requirements, and Miscellaneous Provisions (1) Unless otherwise specified herein, all Telecommunications Facilities and Support Structures permitted by Administrative Approval are subject to the applicable general standards and design requirements of Section VI and the provisions of Section VIC. (F) Administrative Review Process (1) All Administrative Reviews l applications must contain the following: (a) Administrative Review application form signed by applicant. (b) Copy of lease or letter of authorization from property owner evidencing applicant's authority to pursue zoning application. Such submissions need not disclose financial lease terms- (c) Site plans detailing proposed improvements which complies with [Jurisdiction's existing site plan requirements].12 Drawings must depict improvements related to the requirements listed in this Part, including property boundaries, setbacks,topography, elevation sketch,and dimensions of improvements. (d) In the case of a new Support Structure: (i) Statement documenting why collocation cannot meet the applicant's requirements. Such statement may include justifications, including why collocation is either not reasonably available or technologically feasible as necessary to document the reasons why collocation is not a viable option;13 and (ii) The applicant shall provide a list of all the existing structures considered as alternatives to the proposed location. The applicant shall provide a written explanation i z The name of this process should be conformed to the jurisdiction's existing name for a similar process. iz The jurisdiction should include a cross reference to its existing site plan requirements. is This evidentiary requirement allows local jurisdictions an opportunity to review an application's alternatives,and requires providers to prove that collocation is not viable in a specific circumstance. 8 HB -411- Item 11. - 143 why the alternatives considered were either unavailable, or technologically or reasonably infeasible. (iii) Applications for new Support Structures with proposed Telecommunications Facilities shall be considered together as one application requiring only a single application fee. (e) Administrative Review application fee as listed in[Jurisdiction's published fee schedule].14 (2) Procedures$ (a) Within thirty(30) days of the receipt of an application for Administrative Review,the [Zoning Administrator] shall either: (1) inform the Applicant in writing the specific reasons why the application is incomplete and does not meet the submittal requirements; or(2) deem the application complete. If the Zoning Administrator informs the Applicant of an incomplete application within thirty(30) days,the overall timefi~ame for review is suspended until such time that the Applicant provides the requested information. (b) An applicant that receives notice of an incomplete application may submit additional documentation to complete the application. An applicant's unreasonable failure to complete the application within sixty(60)business days after receipt of written notice shall constitute a withdrawal of the application without prejudice.16 An application withdrawn without prejudice may be resubmitted upon the filing of a new application fee. (c) The[Zoning Administrator] must issue a written decision granting or denying the request within ninety(90)days of the submission of the initial application unless: (i) [Zoning Administrator]notified applicant that its application was incomplete within thirty(30) days of filing. If so,the remaining time from the ninety(90)day total review time is suspended until the Applicant provides the missing information; or (ii) Extension of time is agreed to by the Applicant. Failure to issue a written decision within ninety(90)days shall constitute an approval of the application. 14 The jurisdiction should include a cross reference to its published fee schedule. is The FCC has issued a Declaratory Ruling establishing the timeframes for a jurisdiction to act on an application to site wireless infrastructure. The procedure here is reflective of that Ruling,however Jurisdiction can substitute its current procedure so long as it to complies with the FCC's decision. F6 Jurisdictions should conform this time requirement to meet their existing code for information submission. 9 Item 11. - 144 HB -412- t (d) Should the [Zoning Administrator] deny the application,the [Zoning Administrator] shall provide written justification for the denial. The denial must be based on substantial evidence of inconsistencies between the application and this Ordinance. (f) Applicant may appeal my decision of the [Zoning Administrator] approving,approving with conditions,or denying an application or deeming an application incomplete,within thirty (30) days to [the Local Appeals Board]in accordance with this Ordinance.17 V. Telecommunications Facilities and Support Structures Permitted by Special Permit. (A) Any Telecommunications Facility or Support Structures Not Meeting the Requirements of Section IV Shall Be Permitted by Special Permit in all Zoning Districts Subject to: (1) The submission requirements of Section V(B)below;and (2) The applicable standards of Sections VI and VII below; and (3) The requirements of the special permit general conditions at Code Section . [Insert cross reference to Jurisdiction code section that establishes general conditions applicable to Special Permits.118 (B) Submission Requirements for Special Permit Applications (1) All Special Permit applications for Telecommunications Facility and Support Structures must contain the following: (a) Special Permit application farm signed by applicant. (b) Copy of lease or letter of authorization from the property owner evidencing applicant's authority to pursue zoning application. Such submissions need not disclose financial lease terms (c) Written description and scaled drawings of the proposed Support Structure, including structure height, ground and structure design, and proposed materials. 1'The jurisdiction should substitute its standard process for appeal. 18 This allows for Special Pemait/Conditional Permit review of proposed facilities that do not meet the"preferred" standards of Section N. to xB -413- Item 11. - 145 (d) Number of proposed Antennas and their height above ground level, including the proposed placement of Antennas on the Support Structure. (e) When locating within a residential area,a written technical and operational analysis of why a Monopole or similar structure at a height of less than one hundred(100)feet cannot be used.19 (f) Line-of-sight diagram or photo simulation,20 showing the proposed Support Structure set against the skyline and viewed from at least four(4) directions within the surrounding areas. (g) A statement justifying why Collocation is not feasible. Such statement shall include: (i) Such technical information and other justifications as are necessary to document the reasons why collocation is not a viable option;and (ii) A list of the existing structures considered as possible alternatives to the proposed location and a written explanation why the alternatives considered were either unavailable or technologically infeasible- (h) A statement that the proposed Support Structure will be made available for Collocation to other service providers at commercially reasonable rates. (i) Notification of surrounding property owners as required by [insert Jurisdiction's relevant existing code provisions] (j) Special Permit application fee as listed in [Jurisdiction's published fee schedule].21 (C) Procedure22 (1) Within thirty(30)days of the receipt of an application for Administrative Review,the [Zoning Administrator] shall either: (1) inform the Applicant in writing the specific reasons why the application is incomplete and does not meet the submittal requirements;or (2) deem the application complete and meet with the applicant. If the Zoning Administrator informs the Applicant of an incomplete application within thirty(30) days,the overall 19 If you are proposing a monopole under 100'in a residential area no additional submission is required. 20 Photo simulations provide the community with valuable visual data showing the effect of the proposed new structure on the visual landscape. z'The jurisdiction should include a cross reference to its published fee schedule. Same as IV(E)(2)above. 11 Item 11. - 146 HB -414- _ .- timeframe for review is suspended until such time that the Applicant provides the requested information. (2) If an application is deemed incomplete,an Applicant may submit additional materials to complete the application. An applicant's unreasonable failure to complete the application within sixty(60)business days after receipt of written notice shall constitute a withdrawal of the application without prejudice 23 An application withdrawn without prejudice may be resubmitted upon the filing of a new application fee. (3) A complete application for a Special Permit shall be scheduled for a hearing date as required by[insert Jurisdiction's relevant existing code provisions]. (4) Applications for new Support Structures with proposed Telecommunications Facilities shall be considered as one application requiring only a single application fee. (5) The posting of the property and public notification of the application shall be accomplished in the same manner required for any Special Permit application under this Ordinance. (6) The [Zoning Administrator] must issue a written decision granting or denying the request within one hundred-fifty(150)days of the submission of the initial application unless: (i) [Zoning Administrator.]notified applicant that its application was incomplete within thirty(30)days of filing.If so,the remaining time from the one hundred-fifty(150)day total review time is suspended until the Applicant provides the missing information; or (ii)Extension of time is agreed to by the Applicant. Failure to issue a written decision within one hundred-fifty(150) days shall constitute an approval of the application. VI. General Standards and Design Requirements. (A) Design (1) Support Structures shall be subject to the following: 2'Jurisdictions should conform this time requirement to meet their existing code for information submission. E2 Hs -415- Item 11. - 147 (a) Shall be designed to accommodate a minimum number of collocations based upon their height:24 (i) Support structures sixty(60)to one hundred(100) feet shall support at least two (2) telecommunications providers; (ii) Support structures from one hundred(100)to one hundred-fifty feet(150) shall support at least three(3) telecommunications providers; (iii) Support structures greater than one hundred-fifty (150) feet M—height shall support at least four(4) telecommunications carriers. (b) The compound area surrounding the Monopole must be of sufficient size to accommodate Accessory Equipment for the appropriate number of telecommunications providers in accordance with Section VI(A)(1)(a). (2) Stealth Telecommunications Facilities shall be designed to accommodate the Collocation of other Antennas whenever economically and technically feasible. (3) Upon request of the Applicant,the [Zoning Board or Zoning Administrator]may waive the requirement that new Support Structures accommodate the collocation of other service providers if it finds that collocation at the site is not essential to the public interest, or that the construction of a shorter support structure with fewer Antennas will promote community compatibility. (B) Setbacks (1) Property Lines. Unless otherwise stated herein, Support Structures shall be set back from all property lines a distance equal to their height measured from the base of the structure to its highest point. (2) Residential Dwellings. Unless otherwise stated herein,Monopoles, Towers and other Support Structures shall be set back from all off-site residential dwellings a distance equal to the height of the structure. There shall be no setback requirement from dwellings located on the same parcel as the proposed structure. Existing or Replacement structures shall not be subject to a setback requirement. (3) Unless otherwise stated herein, all Accessory Equipment shall be set back from all property lines in accordance with the minimum setback requirements in the underlying zoning district. Accessory Equipment associated with an existing or Replacement utility pole shall not be subject to a setback requirement. 24 This provision will limit the proliferation of new structures by providing for future co-location opportunities. 13 Item 11. - 148 HB -416- (4) The[Zoning Board or Zoning Administrator] shall have the authority to vary any required setback upon the request of the applicant if: (a) Applicant provides a letter stamped by a certified structural engineer documenting that the proposed structure's fall zone is less than the actual height of the structure. (b) The Telecommunications Facility or Support Structure is consistent with the purposes and intent of this Ordinance. (C) Height (1) In non-residential districts, Support Structures shall be designed to be the minimurn height needed to meet the service objectives of the applicant. (2) In residential districts, Support Structures shall not exceed a height equal to one hundred ninety-nine(199)feet from the base of the structure to the top of the highest point, including appurtenances. Any proposed Support Structure shall be designed to be the minimum height needed to meet the service objectives of the applicant. (3) In all districts,the[Zoning Board] shall have the authority to vary the height restrictions listed in this section upon the request of the applicant and a satisfactory showing of need for a greater height. With its waiver request the Applicant shall submit such technical information or other justifications as are necessary to document the need for the additional height to the satisfaction of the [Zoning Board]. (D) Aesthetics (1) Lighting and Marking. Telecommunications Facilities or Support Structures shall not be lighted or marked unless required by the Federal Communications Commission(FCC) or the Federal Aviation Administration(FAA). (2) Signage. Signs located at the Telecommunications Facility shall be limited to ownership and contact information,FCC antenna registration number(if required)and any other information as required by government regulation. Commercial advertising is strictly prohibited. (3) Landscaping. In all districts,the[Zoning Board or Zoning Administrator] shall have the authority to impose reasonable landscaping requirements surrounding the Accessory Equipment. Required landscaping shall be consistent with surrounding vegetation and shall be maintained by the facility owner. The[Zoning Board or Zoning Administrator]may choose to not require landscaping for sites that are not visible from the public 14 HB -417- Item 11. - 149 right-of-way or adjacent property or in instances where in the Judgment of the [Zoning Board or Zoning Administrator],landscaping is not appropriate or necessary. (E) Accessory Equipment, including any buildings, cabinets or shelters, shall be used only to house equipment and other supplies in support of the operation of the Telecommunication Facility or Support Structure. Any equipment not used in direct support of such operation shall not be stored on the site. The Accessory Equipment must conform to the setback standards of the applicable zone. In the situation of stacked equipment buildings,additional screening/landscaping measures may be required by the [zoning Board or Zoning Administrator]. VII. Miscellaneous Provisions. (A) Fencing (1) Ground mounted Accessory Equipment and Support Structures shall be secured and enclosed with a fence not less than six(6) feet in height as deemed appropriate by the [Zoning Board] or[Zoning Administrator]. (2) The [Zoning Board or Zoning Administrator] may waive the requirement of Subsection(1)above if it is deemed that a fence is not appropriate or needed at the proposed location. (B) Abandonment and Removal. If a Support Structure is Abandoned,and it remains Abandoned for a period in excess of twelve(12) consecutive months,the [Jurisdiction] may require that such Support Structure be removed only after first providing written notice to the owner of the Support Structure and giving the owner the opportunity to take such action(s)as may be necessary to reclaim the Support Structure within thirty(30) days of receipt of said written notice. In the event the owner of the Support Structure fails to reclaim the Support Structure within the thirty(30) day period,the owner of the Support Structure shall be required to remove the same within six(6)months thereafter. The [Jurisdiction] shall ensure and enforce removal by means of its existing regulatory authority. (C) Multiple Uses on a Single Parcel or Lot. Telecommunications Facilities and Support Structures may be located on a parcel containing another principal use on the same site or may be the principal use itself VM. Telecommunications Facilities and Support Structures in Existence on the Date of Adoption of this Ordinance. 15 Item 11. - 150 xB -418- (Al Telecommunications Facilities and Support Structures that were legally permitted on or before the date this Ordinance was enacted shall be considered a permitted and lawful use.'5 (B) The provisions of this Part are limited to those structures that do not meet the height or setback requirements set forth in these regulations. (C) Nonconforming Support Structures (1) Non-conforming Support Structure. Ordinary Maintenance may be performed on a Non-conforming Support Structure or Telecommunications Facility. (2) Collocation and/or Minor Modifications of Telecommunications Facilities on an existing non-conforming Support Structure shall not be construed as an expansion, enlargement or increase in intensity of a non-conforming structure and/or use and shall be permitted through the Administrative Approval process defined in Section N. (3) Major Modifications may be made to non-conforming Support Structures utilizing the regulatory approval process defined in Section V. 25 This provides for the continued operation of existing facilities,which is necessary for maintenance oftoday's wireless networks,and which will serve as platforms for future network improvements. 16 HB -419- Item 11. - 151 For Further Questions Please Contact: Jonathan M.Campbell Government Affairs Counsel PCIA—The Wireless Infrastructure Association 901 N. Washington St. Suite 600 Alexandria,VA 22314 (703) 535-7401 carrmbellj(o-�cia.com 17 Item 11. - 152 xB -420- Huntington Beach Planning Commission NOV 0 B 2011 Study Session for Zoning Text Amendment No. 09-002 Dept, of pwdmg Reading the first page of the Study Session Report gave me an initial feeling of appreciation. Mentioned were the issues of Wireless Communication Facilities (aka 'cell towers') within 500 feet of school sites; prohibiting WCFs on city-owned park land adjacent to elementary schools; requiring a public hearing for new ground or utility mounted cell towers; and the Denial of Effective Service appeal that would require a consultant be hired to verify if a coverage gap exists, and that the proposed location is the least obtrusive location feasible. But the feeling of appreciation faded as I read the proposed zoning ordinance amendments. • 1 could not find any text referencing the issue of WCFs within 500 feet of school sites; • 1 could not find text prohibiting cell towers on city-owned park land adjacent to elementary schools; ® Although a public hearing would be required for any new ground or utility mounted WCFs, 3 of the 4 wireless permit scenarios allow "rubber stamping" permit approvals without public notification or public hearings. • The current requirements (23O.96.D) for a wireless company to demonstrate existing gaps in coverage" and to demonstrate that the antenna would be located in the least obtrusive location feasible so as to eliminate any gap in service" would be stripped from the ordinance. The only time a wireless company would have to prove a gap in service or justify the location of the WCF would be for the newly proposed Denial of Effective Service appeal. And the way 1 understand it, this is likely to happen only if a resident discovers the approved permit and files an appeal within the 10 day period. That initial feeling of appreciation was replaced by disappointment. The 1,000 foot Co-location issue and the Coverage Area of a WCF (cell towed Co-location was also addressed in the zoning amendments for proposed WCFs within 1,000 feet of an existing wireless facility. Requiring Co-location is good. But 1,000 feet is too short a distance. The distance should be much longer based on a WCF's Coverage Area. "Coverage for LA33421X' map • The "Coverage for LA33421A" map submitted by T-Mobile shows the projected coverage for the proposed cell tower at Community United Methodist Church that was denied, in part, due to the inability to grove a gap in service. CUMC is on Heil, just east of Edwards in north Huntington Beach. • T-Mobile's cell coverage map shows three T-Mobile cell towers within one mile of CUMC. Two of these cell towers are within one-half mile. • The projected cell coverage from the CUMC site is shown extending one mile north, beyond the existing T-Mobile cell tower at McDonald's one-half mile awal. • Coverage is shown extending one mile southeast, beyond the existing T-Mobile cell tower at Murdy Paris one-half mile away. • And coverage is shown extending one mile southwest, past the existing T-Mobile cell tower behind 24 Hour Fitness at Springdale and Warner. Dianne Larson November 8, 2011 Page 1 HB -421- Item 11. - 153 Huntington Beach Planning Commission Study Session for Zoning Text Amendment No. 09-002 • According to T-Mobile, cell towers are capable of a much greater coverage distance than 1,000 feet. Illustration of 1 Square Mile • This illustration represents a square mile. m The squares represent 1,000 by 1,000 feet. 1,000 feet is less than 115 of a mile. • If co-located WCFs were allowed every 1,000 feet (or individual WCFs were allowed every 1,001 feet), there could be over 25 WCF locations within every square mile. Co-location is good. But the required distance needs to be considerably longer. List of Suggestions for Ordinance Change Early in 2010, I submitted a list of suggestions to the City Council regarding changes to cell tower ordinances. That list is included in the handout. Some of those suggestions are: • Change the point in the application process at which notifications are sent. • Enlarge the notification area • Expand the sector of recipients to whom notifications are sent. • Increase the length of time for the advance notification. • Create guidelines for determining what constitutes a "coverage gap" and "adequate cell coverage." • Add a requirement for an independent study of current cell coverage before a wireless permit is issued. • Increase the cell tower application fee to cover the cost of the required independent study and the increased notification expenses. • Require documentation that all alternatives, including co-location on existing antennas, cell towers, and/or structures, are thoroughly researched and exhausted before a new cell tower would be considered. Public Awareness Suggestion: Create and maintain an easy-to-use, cross-referenced list--for public use - of WCFs and their stage in the process of application, approval process, etc. This is public information but it is currently difficult to track down, (even for employees in the Planning Dept.). A searchable list on a city webpage, for example... Residents have repeatedly called for a stop to the so-called "rubber stamp" approval process of wireless permits. We want a more stringent approval process requiring demonstration of significant gaps in coverage, and demonstration of the least obtrusive WCF locations. We want required notification to residents in a larger area, at an earlier point in the process —before any wireless permits are approved. Respectfully, Dianne Larson Dianne Larson November 8, 2011 Page 2 Item 11. - 154 xB -422- At jR.03 rn LAt) �� rim �. Coverage far LA33421A s e sMobide a i Ar Syl Ave i I y C/r arnel Dr Iar on AV bble toe n usiness D r 3 _ o • .®.. 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THE SMALL SQUARES ARE 1,000 FEET BY 1,000 FEr C. 1 WILL PROPOSED TEXT ALLOW A WCF EVERY 1,001 FEET. Item 11. - 156 HB -424- February 27, 2010 Huntington Beach City Council Members: iyor Green, Mayor Pro Tern Hardy, and Council Members Bohr, Carchio, Coerper, Dwyer and Hansen, This list includes modifications to my previous suggestions for changes to the Huntington Beach city ordinances regarding cell towers. Items 1, 3 and 7 have been changed. Item 8 has been added. I believe that incorporating these changes would prevent many of the issues that arose from the opposition to the three proposed cell towers in 2009 and would help protect the city from lawsuits. 1_ Chance the point in the aWication process at which the first notifications are sent. Mail notifications to the public when a cell tower application is submitted—BEFORE any action is taken, . including the granting of a wireless permit. Additionally, mail notifications before decisions are made at every level (i.e., wireless permit, zoning, planning, etc.). 2. Enlarge the notification area. Enlarge the notification area from the current 500 foot radius to a 1200 foot radius_ The 1200 foot distance is associated with both the decrease in property value due to the stigma of the proximity to cell towers and to the health impact from the non-thermal radiation emitted by the cell towers. 3. Expand the sector of recipients to whom notifications are sent. Notify all local property owners, residents, businesses, employees and parents of all students (pre-school through high school, public or private) who own, live, work or have students in an area that would be impacted by a proposed cell tower. Parents of children in public or private daycare facilities, including before- and after-school care facilities, should also be notified. ' Increase the length of time for the advance notification. Increase the current I0-day advance notification period to 21 days (three weeks). 5. Create guidelines for determining what constitutes a"coverage pap° and "adequate cell coverage." Determine the threshold for the acceptable percentage of dropped calls, how the call volume is measured, etc., and at what level a °gap° or"weak area" is considered "significant"enough to justify installation of a new cell tower. 6. Add a requirement for an independent study of current cell coverage before a wireless permit is issued. 7. Increase the cell tower application fee to cover the cost of the required independent study and the increased notification expenses. 8. Require documentation that all alternatives including co-location on existing antennas, cell towers, andfor structures are thoroughly researched and exhausted before a new cell tower would be considered. This documentation should be submitted with the application for the wireless permit. I urge that an immediate moratorium against accepting any new cell tower applications be initiated and kept in place until changes to the city ordinances are put into effect. Respectfully, Dianne Larson Lars onD.l@verizon.net HB -425- : Item 11. - 157 Ramos, Ricky From: iarsondj@verizon.net Senn Tuesday, November 22, 2011 2:47 PM To: Ramos, Ricky Subject: Proposed Zoning Amendments-DISAPPROVAL November 22, 2011 Ricky Ramos Senior Planner Planning and Building Dept. Huntington Beach, CA Dear Mr. Ramos, Although I understand that your intentions for the proposed zoning amendments were to streamline" the Wireless Communication Facility (WCF) application and approval process, I believe that your proposals would be detrimental to the public safety, general welfare, and quality of life for Huntington Beach residents. You have proposed REMOVING the current requirements for WCF companies to-- • prove a gap in cell coverage, • demonstrate that the antenna is in the least intrusive/obtrusive location, and • research all alternate locations. These requirements have been ruled the responsibility of the WCF company by federal courts. Do not relieve the WCF companies of their mandated responsibilities. In the November 2010 election, Huntington Beach residents voted against Measure Q, demonstrating that they do not want cell towers near school yards or in city-owned parks adjacent to schools. You stated that the City Council directed you to develop proposed amendments to the zoning ordinances that would reflect these resident attitudes. Your proposed amendments not only omit these directives, but would allow multiple, unnecessary WCFs every 1000 feet without notification to Huntington Beach residents. Due to a prior commitment, I am unable to attend the Planning Commission Study Session today, but nevertheless I wish to reiterate my DISAPROVAL of the current proposed zoning amendments. Respectfully, Dianne Larson Item 11. - 158 HB -426- ` / . � 1+.13 2.11 � Planning Commission Meeting Zoning Text Amendment No. 09-002 Huntington Beach, CA Dianne Larson Topics of Discussion Proposed Zoning Text Amendment City Council's intent for Amendment What a mend ment says What it overlooked What it deleted Reject this version Suggestions for modifications � ! / | | � | | ' � � l �f�,�` 1 1 1 �Q f{B -427- "^�^^^ ^ ^' - ^�� 12/13/2011 Topics of Discussion cont, ® The Education Challenge — Planning Commission Study Session, Nov 8th — CWA representative indicated that people who are concerned with effects of RF-need education — I accept the challenge of education for • Those who are concerned • Those who are not aware of topics for concern Proposed Zoning Text Amendment City Council Intent • PC Study Session Report, Nov 8, 2011 a City Councils 2009 directive for the Zoning Amendment was to --Address WCFs within Soo feet of school sites — Prohibit WCFS on city-owned park land adjacent to an elementary school • These issues were not specifically addressed in the proposed zoning text amendment 2 Item 11. - 160 xB -428- 12/13/2011 Proposed Amendment Cont. Negative Impact, City's Goal • Potential negative aesthetic impacts of WCFs i —Visual blight and reduced property value —US and international research established negative impact distance of 1200 feet • City would attempt to — Locate WCFs in commercial, industrial, and non-residential zones —Screen WCFs from view —Encourage co-location with other WCFs Proposed Amendment cont. Wireless Permits t • Director approved • No Public Notification or Public Hearing — Shoup require 12oo foot Public Notification • New Co-located WCFs (if Steaith) • Modifications to Existing WCFs (plus 1.0' height) © New Roof or Wall Mounted WCFs (plus 10' ht) — Should require CUPs, Na 10"height allowance • Design Review not required if'any<should be "all"> facilities & equipment are underground, or in existing building or existing enclosure E 3 xB -429- Item 11. - 161 12/13/2011 Proposed Amendment cunt. Conditional Use Permits • Zoning Administrator approval m Requires Public Notification & Public Hearing — Notification within 500 feet — 'Reduced property value' impact extends 1200 feet • New Ground Mounted WCFs • New Utility Mounted WCFs • MISSING: New Roof or Wall Mounted WCFs ® Design Review is required Small circle - 500 foot radius of CUP notification area Large circle - 1200 foot radius of Reduced property value area 4 Item 11. - 162 HB -430- 12113/2011 Proposed Amendment cont. Design Review Required for — Cups — WCFs on public right-of-way — WCFs on or within 300 feet of residential district or use by the City — Should be required if WCF is within 1200 feet ® `Reduced property value' impact extends for 2-00 feet —All residents within the impacted area should be notified of Wps, CUps and Design Reviews, and have the chance to express concerns regarding decisions the City makes that will affect their property values. Small circle - 300 foot radius of Design Review notification area 0 0 Large circle - 1200 foot radius of Reduced property value area 5 HB -43 l- Item 11. - 163 12/13 f 2411 Proposed Amendment cunt. DELETES Federal Requirements • Proof of need ` — No longer required — Gap in coverage not required —Unneeded WCFs would be approved • Least Obtrusive/Intrusive locations — No longer required — (HB: Minimum 1000 feet apart, if feasible) • Alternate locations Need not be researched Federal Requirements T-Mobile USA v. City of Anacortes Th Circuit Court, 2009 • Wireless provider responsibilities: — Demonstrate Significant Gap in Service — "Least intrusive means" standard re: Location — Research Alternate locations ® Don't relieve wireless providers of Federal requirements at the City level 6 Item 11. - 164 HB -432- 12/13/2011 Co--Location & Design Review: The ONLY ZTA Zoning Restrictions Proposed ZTA would permit WCFs every 1000 feet, in all directions Over 25 WCFs per square mile • HB covers 31.88 square miles • Result: Over 797 WCF locations/co-locations • Proposed ZTA, as written, can not prevent this • is "Cell Tower City" your vision for the future? Reject Proposed ZTA, As Written • Mr. Ramos said proposed text attempted to streamline the permit process for WCFs in locations preferred by city • But, as long as Design Review & Co-Location are met, ZTA gives no Zoning Ordinance basis to DENY WCFs in or near residential and school areas or to prevent unneeded WCFs • Mr. Ramos said this amendment could be rejected by Planning Commission 7 HB -433- Item 11. - 165 12/13/2011 Suggestions for Modification • Retain Federal requirementsfor provider — Demonstrate significant gap in service — Determine least obtrusive location — Research alternate locations • Public Notification should be sent whenever ANY type of WCF application is submitted — Increase notification area to 1200 feet — Extend notification time period to 21 days P.Q. cut-backs & slower delivery next year • Expense is provider's cost of doing business — Increase WCF application fee to cover i Suggestions for Modification cont. • New Roof & Wall Mounted WCFs should require CUPs, not WPs — Public notification & public hearing — Describes Federal requirements for every provider applying for WCF permits — Should apply to ALL WCF applications: WPs & CUPs — Submit BEFORE application can be approved l — Denial Appeal would go to Planning Commission 8 Item 11. - 166 1413 -434- 12/13/2011 i Demand ZTA Modifications • ZTA, as written, is NOT acceptable • Does not give the City — Control over number or placement of WCFs — Basis to deny unneeded WCFs ' • Does not protect residents' public safety, general welfare, quality of life, or property values Vote to strengthen & enforce current zoning ordinances: Don't strip them of protective Federal requirements! The Education Challenge Info only: Not a basis to deny WCFs • So Cal Edison warning in billing statement — Minimize exposure whenever possible • Telecommunication Act(TCA) of 1996 — WC Lobbyists instrumental in wording& passage — Section 704: `environmental effects of RF emissions' --Thermal based standard for regulation Applies to short term, high level exposure, heats tissue • Does NOT apply to WCFs RF radiation -- RF exposure: non-thermal, long term, low level • EPA- Office of Air & Radiation Letter —TCA's Thermal Standard does NOT apply to WCF RF 9 xs -435- Item 11. - 167 12/13/2011 The Education Challenge cont. I Info only: Not a basis to deny WCFs • International concern — Scientific communities:Journal of Pathophysiology Aug 2009,Special issue:Biological effects of EMF,RF,WCFs i - Countries/governments:Europe,Canada,Australia,US, — Documentary:"Full Signal:the hidden cost of cell phones" • wwwFul[SignalMovie.com • US concern—Resolutions demanding change — Communities:LA, Burbank,Glendale,Sebastopol,Portland, — School systems:LAUSD, Huntington Beach's Ocean View SD — Individuals:HB residents defeat Measure Q, Nov 2010 • HB—Adopt a resolution to demand that Section 704&the thermal standard be modified! — Protect our residents, our city&our future. 10 Item 11. - 168 HB -436- Don McFarland � rw 66310 Mason Drive Huntington Beach NOV 08 2011 Dept. of Planning &Building My recommendations for the Zoning Text Amendment No. 09-002 (Wireless Communication Facilities) The Zoning should.be written primarily to permit the City and its residents TIOT a Wireless co. to control what is built where in the City since this is the reason for having a planning commission and Zoning to start with. I also would recommend that when the requirement to show a hole in coverage exists that the information required be clearly defined. This evidence should include, but not be limited to, the following. 1 what equipment was used to collect data. 2 the accuracy and calibration of the equipment. 3 who took the data and the qualification of this person? 4 when and where was the data collected. 5 who prepared the documents presented showing a hole in service. 6 the qualification of this person. The source and form of other data, such as dropped calls, should be specified by the City not the applicant. These recommendations are made after seeing the inaccurate and misleading data presented by Tmobile last year. HB -437- Item 11. - 169 Ch� llenl;cs nn�cl 'Virctess is vital to,jobs anti tl�eOrange Co unty NeedsWfreless canonryInfrastructure ' Ccif Selt�wi�c Colnnlltliities in Clli�ta,.lJltt•ope�ut1 � .�rul Jt.t�a�astl�i supll ioi ��1 Growing demand can ini'r•;lstrttcti�re to:that of Oralrl;e Caulzty overburden wireless netw • tioresr is a complete�wil cicss coonouty leading • unreliable, spottycoverage. All• Coritpanies want tolno��c whelcaroundthe worldcountries techuolu�ic;il ulfrastrttctttrh is in placeexpanding their , fn keep tltcill on tle cuttitl ctlge.This ismaking itpossible ' " more • A Gi1IIa + rOR CITY wl>y lltat► 'lacgc ctiill�arlies have dewireless applications. The United StatesU'I+FICIAI,S AND T'I°IEIR cider[to ltcad over seas' is no longer leadingRI��SI DENrCS •. \Vithiu'tltl�U5,hl:tcr's strcG as comes • is wireless I=llifadclpltia;tilt{ the North Oliioin many instances sliding backwards. C"otsortitrtll of a bltifdiilg liltc staleModem societies . be it in�ril•l�[cSS fiber nrlltnrlcs transportation, • ng or • 'Nc►i�tli Cat*t)liva !'C.CO�'111ZCS the technology. As a f • leader, time irnpnrtance nl'��•ircicss ilifr.asit•ltcture • • • resume this' illtt� 15 i�'pl'Itilln to('t'C;ItC a !'0{)llSt' � REO � �' ORANGE that i •• bl'(litdballd'S1'stent • technologyle in the , + h COtNTY locally,-il begins right here, • ownw !i`''h;l�iu a�sireletis p[an,tlic city 0lDIVISION •• �Iaclsolt IIolc, �'t'}nnlilt[;alrltostcity. The future economy ' be _, of Planl instanth ;tths;tcted 7QQ jobs to its city. accommodated without '1'htrsc people��orlc ralu)tcly for ainfrastructure. comjan;� in Clii'ua"that httrsucct a ��s, LEAGUE OF CALIFORNIA CITIES ��il•cless friendly b►catit►u • (7tr•;tti�e Cniintj•rcntai►is hah[uti fhc curs•t�in tcrnts ot;�^r�irc[css inft,iisti�uctlrc.r[cat�in�.ctitnl):ln[c�stt►^ ., ;, �• __ lotil rls���sltcrc fnr locititmti antl [nli�t'iit�theli,tniltfcrrtf�ji►lraltcili'g � I'`u Ir I 'i ti, h �crl t3' a� hroul;hl o,Ells 1'ei;{on600 West Santa •Suite r :► m g,c C' a ti n t Il i i s i n n , ` [. csrt uc +► f' Y aIi !' c► rnia Santa Ana,CA 92701 ' • 714-972-0017 Fax: 972-1816 r'' �.n•:"n�r}"F;gy; -,.,7�Y rryy'}'*,`�"L:"'•;',h,i�u;�'�„ -.i;it�=:�- -•'+,�•a„' - fi Cell Towers put oil'less RF than a baby Home Values could be increased by r R` 'h' t rtiarr� oiyltair:ele7r . � , ' �s� monitor: wireless coverage: y '=!. Man citizens are concerned that cell towers will „ Outside of public health, property value Is the ,� { a;cell cea eo, e a 'e cef ',g�bn �ellb,c increase their exposure to Radio Frequencies and • ;,,. , ;,, major concern when installing new wireless se t rtil urtc r u,. dii.e- yayF<,;.F have damaging health effects. Cell service technology ' s :.. .Y�3, °T�" 4.'rT infrastructure. Residents have concern about i es 2 0 e `ce ne urp s edtHe;; :, uses the same technology that delivers radio and l,. s 'r..,., their homes losing value if they are within a landl'i B• a;o h do�_ �'�_ �sy�i ' `t',: television broadcasts, anal enables baby monitors to a rile -a s c ' teats 'b; I"o'' ith',3 Fhex:x. certain distance of a cell tower, Recent real - �' " ��;,���,,;;,,,,,.4 work in your phone. Scientists throughout the world ' .ti ,onse ma o ' o e Fires at have estate appraisals have shown that property i^F '�.� ��,u,.� have continuously found that there is no public health aoixia' .gns°rvrar^ values are not impacted because a cell site is ;"' threat from RF'wireless emissions. RF emissions from p alra e q t apl'eti_' nearby and in fact the opposite may be true. �;�h�f�s,r,� a typical cell site are a minuscule percentage o Many real estate agents frequently report that (0.0001/0) of what the Federal Communications dle4 vhi s ec to " ' �iri IIV strength of wireless signal is has a significant ?' "t Commission(FCC) allows. impact on a buyer's selection of a new home. na�, �9w, fll :y, Typical Rla exposure from common devises .,.wa,. Cell Site Location is an exact science: b'nsfr« Fxpoaure in megawatWcm2 i+.. Pollee and Mobile Radio 250 Cell sites are not chosen at random. Cell FM Radio Transmitter 100 f.• -,, 4,�:�ry;,..,,t'� service providers go through an in depth a •,b•}l'{.� Cordless Phone 15 process with every selection made.Every site is 7a _�� ! .t ; �i•pi Baby Monitor 1 x ?yy= rr h'r(;;�, selected based on scientific analysis, zoning, 14 ;:t ,-, = pet, :Y Y�,t WiFi Router 0.13 real estate agreements, and construction and Cell Site 0.1 permitting requirements. Cell service p safety providers work closely with cities to meet the While public safe seems to be number one on the y -' ;, A,F �"•• :.kd, needs of residents and ensure that the pt.•� -. ,4 „ ..3 F public's priority list when it comes to allowing new Y ,Y th'"' s'"rx community's needs are met. u.g fr wireless infrastructure, many people do not realize y have an even� that that a lack of infrastructure may ,:. .�' «„�,..r•�.,�C.;� 1'" ,:�,i�:,;�;;�,;,.;�.,. - ��r,,�d�.a,��•�,T,� Wireless is vital to public safety greater public safety risk.Almost halt of the 9-•1-7 calls in Orange County FMR.eles r mu at`a t t w e�:free ff�tloesT� . made in the United States today come from cell "In my over 20 years in public safety r a ysical ' st uctua a to a d:�andecelive r phones.Forty percent of children ages 12 to 14 have a communications, I've seen the meteoric rise in the E, WTZI cy�;gel h,on e s •, 'ile th is ask rtgfilkne for rf cell phone with parents citing"safety" as the primary y �' . �R�R �€tV411111, t,�f popularity and usage at'cell phone technology. Its � XAzne.earl t1elY ah.no ogtcal,'o(t dns;5 cell„ t reason for providing the phone to their children. Ml e'im �' S's.ruJ, � X.:,j.';r''J: •Clii j r ,' s 'a e eturig�tds easrng not ust the wave of the future. ltts NOW, The lives A, AARY reports that 56 percent of Americans over 65 and property of the citizens of Orange County a`; f es t�pe fd n r.c£ lily ,;r ,gf' own a cell phone for primarily the same reason.With ,, depend on a robust infrastructure to support wireless eicss the county of Orange launching programs such as o, 'o a`, i se •c c, i� a . �t'out+� technology. We in the world of 9 E 1 stand ready to - rt k- AlertOC, to provide text information to individuals F I Tr > iur r, �s c 1 n t. . .• o s.� �'01-,�1 send all the help the citizens need,but they can't get regarding disaster in their area, how can the residents , Ire a 4d p ©eP r u .ors" ,s.ti �'. 111 it if they cant access us through their wireless .�- of Orange Count continue to fight wireless e o c a bi''• ti goal g y g devices. A solid infrastructure,including the ?i infrastructure in their area At this point s a it it truly i Installation and building of new cell towers,is ' matter of public health. If you cannot get a signal, all CRUCIAL.for proper coverage of ALL,areas of this i of those phones in place for"safety"become useless. county." � Ryan Turner,Senior Fire Communications Supervisor-O A Ramos, Ricky From: sweetsilver[sweetsilver@juno.com] Seat: Tuesday, November 22, 2011 9:27 AM To: Undisclosed-recipients Cc: Ramos, Ricky Subject: Cell Towers November 22, 2011 Ricky Ramos, Sr. Planner Planning Commission City Hall 2000 Main Street Huntington Beach CA 92648 Dear Mr. Ramos— Although l spoke at the three 2010 meetings with the Commission and City Council on the subject of cell towers, I did NOT receive a notice of the Nov. 8, 2011 Commission meeting—and neither did other attendees that I spoke with. That is why so few appeared at the Nov. 8, 2011 session to oppose the proposals being discussed. The proposed ordinance amendments represent an improvement but are still inadequate. There should be requiremer as follows: 1. All cell towers should require a permit and a prior public meeting. 2. Written notice should be given to all residents within two-thirds (213) of one(1) mile. 3. Cell towers should not be permitted near schools or city parks. h. The cell tower firm should be required to justify the location and present evidence of the investigation of alternate locations. 5. A need for additional coverage should be amply demonstrated. Sincerely yours, Dana Drake, attorney at law 57 Year Old t4lllom Looks 27 Mom Reveals $3 Wrinkle Trick Angering Doctors... iconsumerknowledge.com Item 11. - 172 HB -440- - - Ramos, Rocky 'From: Gay Infant [ginfanti@verizon.net] ;ent: Friday, December 02, 2011 9:31 AM To: Ramos, Ricky Cc: Hess, Scoff, 'MARK INFANTI' Subject: Comments-Zoning Text Amendment No. 09-002 2 December 2011 Mr. Ricky Ramos Project Manager City of Huntington Beach Planning and Building Department 2000 Main Street Huntington Beach, CA 92648 Re: Huntington Beach Planning Commission Study Session for Zoning Text Amendment No. 09-002 Dear Mr. Ramos: The purpose of this letter is to provide comments on the subject Zoning Text Amendment currently under consideration by the Huntington Beach Planning Commission. While I appreciate the necessity for these changes and support many of those proposed, there are several provisions in this zoning ,ext amendment that I believe require further revision as discussed below. First, the revised wording as to the Purpose of section 230.96, Paragraph A, Wireless Communications Facilities, weakens the original language with respect to placement of wireless communication facilities in residential neighborhoods. The stated purpose of the current ordinance is to "-encourage and facilitate wireless communications throughout the City, while preventing visual clutter by locating wireless communication facilities outside of residential zones and where they are invisible to pedestrians, and co-located with other facilities. All wireless communication facilities shall comply with these regulations with regard to their location, placement, construction, modification and design to protect the public safety, general welfare, and quality of life in the City of Huntington Beach." However, under the revised ordinance the City would merely "endeavor to locate antennas within commercial, industrial and other non-residential zones, screen them from view, and encourage co-location with other Wireless Telecommunication Facilities". Thus, under the revised ordinance, it would be much more likely for Wireless Communications Towers to be placed in residential neighborhoods where they will create visual blight and significantly lower neighborhood property values. Understanding that the changes to this stated purpose may be driven by the Federal Telecommunications Act, such that the City may only endeavor to place elsewhere rather than prohibit placement of wireless facilities in residential neighborhoods, then additional restrictions should be added to the zoning ordinance to "prevent visual blight and diminution of residential property values". When no other alternatives to a residential neighborhood exist, the City should require that any Wireless Communications Facility placed in a residential neighborhood be Hs -441- Item 11. - 173 "completely stealth", i.e., completely screened in all aspects of the facilities, including appurtenances and equipment, from public view. It must be noted that stealth techniques such as amonopalms/monopines" are completely ineffective in disguising cell towers of fifty or more feet such as the 55 foot T-Mobile tower, disguised as a palm tree, currently proposed for construction in the Springdale Pump Station directly behind my home. In addition, serious consideration should also be given, when deciding whether a proposed wireless communications facility will "be compatible with the surrounding environment" or that "massing and location of a proposed facility are consistent with surrounding structures and zoning districts," to the location of existing utilities at or near the proposed site. Language should be added to section 230.96 E to recognize that an above-ground wireless facility will not be either compatible with the surrounding area or consistent with surrounding structures when all other utilities in the area are buried underground. Several of the provisions within this zoning text amendment discuss a requirement to co-locate proposed new ground mounted facilities whenever such a facility is requested within 1000 feet of any existing wireless antenna (See draft sections 230.96 E1 h and 230.96 G5). Recent applications for wireless communications facilities proposed in Huntington Beach indicate projected ranges significantly greater than 1000 feet; service providers have projected that proposed new wireless facilities will have coverage in excess of a mile in any direction. Therefore, co-location should.be required with existing facilities when any new wireless facility is proposed for location within at least 10,000 feet (approximately two miles) of an existing wireless facility. This will help prevent our city from being overrun with telecommunications towers and becoming a cell tower "farm". At least one telecommunications provider, actively marketing its "highly concentrated urban footprint" and claimir to own of the largest concentrations of cell towers in the country, as well as advertising excellent service coverage in Huntington Beach, is nevertheless trying to construct several more towers in our residential neighborhoods. These towers will do nothing for HB residents other than destroy their property values and quality of life, but will benefit the telecommunications company through increased revenues from the sale of space on those towers. As you revise these zoning ordinances, please do so in a manner that will not allow corporations to more easily take advantage of our City for their own corporate gain at the expense of Huntington Beach residents. Section 230.96 2a of the draft Zoning Text Amendment says that a facility may be administratively approved if it is co-located on an existing wireless facility, does not exceed existing wireless facility height, and employs stealth techniques such that the co-located facility is compatible with surrounding buildings and land uses. In section 2b it says that a facility may comply with the base district height limit and achieve compatibility with surrounding buildings and land uses if the new facility exceeds the base district height by 10 feet. This provision should be modified to specifically include trees and other natural or existing landscape features in addition to structures. If"existing land uses" does include trees, no wireless facility should be allowed that will be significantly taller than surrounding trees. No realistic stealth technique is available that will effectively disguise a 55 foot "monopalm/monopine" from the surrounding 30 to 40 foot palm or pine trees. A tower any higher than surrounding trees cannot be effectively disguised. A revision to this provision is required to clarify exactly what will constitute "compatibility with surrounding buildings and land uses" when the Item 11. - 174 HB -442- proposed location contains no tall structures but only trees that are not as tall as the proposed stealth tower. )ection 230.96 H of the draft Zoning Text Amendment, Facilities on Public Property, says that any wireless communication facility to be placed on city property shall obtain a license, lease, franchise or other similar permit from the City prior to issuance of a Wireless or Conditional Use Permit (CUP). To prevent the City from being required to find alternative locations if the Wireless Permit or CUP is initially denied or denied upon appeal, the City should not enter into a "license, lease, franchise or other permit" until a final decision is made to grant a wireless permit or CUP. This provision should therefore be revised to require instead a "conditional" license, lease, franchise or other permit, which can be invalidated or rescinded when the Wireless Permit or CUP is subsequently denied. Furthermore, no commitment should be made nor any administrative approval granted until an applicant for a new wireless communication facility proves an existing gap in coverage in accordance with the provisions now found within 230.96 section F2. Once a conditional or provisional decision has been made to grant administrative approval, a wireless permit, or a conditional use permit, the applicant should be required to establish the existence of a significant gap in coverage claim based upon the "substantial evidence" set forth in section F2 of this zoning text amendment. The current text requires this process only when a decision to grant such approvals is appealed to the Planning Commission by an aggrieved party but there are several problems with this requirement. First, administrative approvals don't require public notice. Second, the zoning text amendment provides that a decision to grant a wireless permit becomes final only ten days after the date of the decision unless an appeal is filed. Ten days is insufficient for interested parties to learn of the decision and take action to file an appeal. As a case in point, a recent City notice concerning a November 16th public meeting about proposed cell tower in my neighborhood, which had a November $th postmark containing the same zip code as my own, was not delivered until November 12th(several recipients within 500 feet of the proposed cell tower, who should have been notified, did not receive the notice at all). Notice of all pending approvals should be made to property owners within 10,000 feet of a proposed wireless communications facility site, and significantly more time must be provided to allow aggrieved parties to formulate and file their appeals. I hope you will consider these comments and recommendations before finalizing Zoning Text Amendment No. 09-002, My interest in these zoning ordinance changes stems from personal experience with a proposed cell tower project, for which the City Council is currently considering a lease. This project, if approved, will place a cell tower into a neighborhood zoned RL, residential low density, within feet of our homes. I hope that these pending zoning changes, when finalized and made effective, will prevent other Huntington Beach residents from having to experience similar distress and worry over the threat of damage to their property value and quality of life that would result from placement of a wireless communications facility in their residential neighborhood. While these zoning changes may stop future projects, like the one proposed in our backyard, from being located in other Huntington Beach residential neighborhoods, unfortunately they will become effective too late for us. A City Council vote to grant the applicant a lease for the proposed cel[ tower site in our neighborhood is planned in mid-January. If approved, it will likely exempt this project from consideration under these potentially helpful zoning ordinance changes, because it would be considered a "previously valid entitlement" as defined in Section 230.96D, Exceptions. The City HB -443- Item 11. - 175 should consider a moratorium on all wireless telecommunication projects currently pending approval until the zoning ordinance changes become effective. Any help the planning department can provide to make this happen would be most appreciated. Respectfully submitted, Gay and Mark Infanti 18232 Foss Lane Huntington Beach, CA 92648 (714) 840-4641 g i nfanti[ct_verizon.net cc: Scott Hess, Members of the Planning Commission (by US Mail) 4 Item 11. - 176 HB -444- 12/13/2011 Comments and Recommendations to Strengthen and Improve Zoning Text Amendment No. 09-002 Wireless Telecommunication Facilities HB Planning Commission Public Hearing Re: Ordinance HBZO 230.96 Wireless Telecommunication Facilities 13 December 2011 infant!-December 2011 Concerned Voters of Huntington Beach 1 Objective of Zoning Ordinance Changes. We encourage and support the City's objective to revise its zoning ordinance to ensure optimal placement of wireless facilities and minimize their negative impact on HB residential neighborhoods and public spaces However,we believe additional changes - must be made to; — Protect HB residents, t — Help prevent loss of residential property values,and — Maintain quality of life in our City HimungtonHeack CAc r lnfanti-December2011 Concerned Voters of Huntington Beach 2 HB -445- Item 11. - 177 12/13/2011 Major Concerns with Zoning Text Amendment • No longer requires that wireless facilities be placed in non- residential areas • Increases Director's authority to grant wireless permits without y public notice or hearing • Applicants are no longer required to j FY — Justify cell tower need based on existing gaps in service coverage5v . — Demonstrate a proposed location is - "least obtrusive" — Investigate alternative locations Tustin rn45 Infaroi-Decembef X11 Concemed Voters of Huntington Beach 3 RecommEIndation 1 Prohibit placement of WCFs in Residential Neighborhoods. 1. Retain original wording in Section A, Purpose,to prohibit placement of WCFs in residential neighborhoods as follows: — to"encourage and facilitate wireless communications throughout the City,while preventing visual clutter by locating wireless communication facilities outside of residential zones and where they are invisible to pedestrians, and co-located with _ w other facilities — All wireless communication facilities shall comply with these regulations with regard to their location,placement,construction, modification and design to protect the public safety,general welfare, and quality of �- life in the City of Huntington Beach:' _- saaEernacdurn,fA LL,... Ward-Dew ber zoa Concemod Voters of Huntington Reach 4 Item 11. - 178 xB -446- 2 12/13/2011 Recommendation 2 Director Approval 2. Revise Section E2 to eliminate the authority of the Director to approve a project with only a wireless permit, absent a public notice and Fearing M. Escondido,CA InEand-Decemher2011 Concerned Voters of Huntington Beach b Recommendation 3 Co-locate within 10,000 feet 3. Revise Section E1g and Section GS to - require co-location of proposed new ground-mounted facilities within 10,000 feet of an existing wireless antenna M Cajon,CA Infand-Decemher2MI Concerned Voters Qf Huntington Beach - 6 HB -447- Item 11. - 179 12/13/2011 Recommendation 4 & 5 Compatibility With Surrounding Environment 4. If a wireless facility must be placed w, within a residential neighborhood, � F the ordinance should require that - ems_ it be "completely stealth" rs " 5. Add to Section E2 to require ther,F Director to consider the placement of all other existing utilities in the area (i.e., no above ground WCF if all other utilities are underground Canyon Country,CA Infant-December roll Concerted Voter of Huntington Beach 7 Recommendation 5 Modify Process to incorporate"Conditional.Approval"subject to Additional Requirements Being Met by Applicant 6. To ensure the City makes no premature commitments, revise Section Elf to require only a "conditional"or"provisional" license lease, franchise, etc. which can subsequently be invalidated or "" Y rescinded if the wireless permit or CUP is later denied. M 1^ r "MH-W ' Use "conditional approval" approach w r for all applications subject to Director approval,wireless permits, or CUPS. f carneataz city,cA Infantt-December 2012 Concerted Voters of Huntington Beach B Item 11. - 180 xB -448- 4 12/13/2011 Recommendation 7 & 8 Process for Demonstrating a Gap in Service Coverage 7. Upon receiving"conditional"or ff "provisional approval (see#6), of ' any kind (including a lease, license,etc., Director Approval,or a wireless or CUP), the applicant should,as required, by Federal Law, — Prove an existing gap in coverage — Demonstrate the proposed site is the least obtrusive 8. Require the gap in coverage to be proven using the process set forth in Section F3 (Denial of Effective Service Appeal) tnfami-December 2DU Concerned Voters of Hunthigton Reach 9 Recommendation 9 & 1 Notice and Appeal 9. If Director or Administrator Approvals are not eliminated, insert a requirement for �rt rwr public notice to allow interested parties to appeal 10. Modify the ordinance to require �- additional time before a decision to grant ` a permit becomes effective — increase to 30 days to allow sufficient time for interested parties to receive notification and take action to file appeal ^° yw — Increase required notification to all property :: owners within 1,200 feet of proposed wireless `fry�`!�-•~+'• - 'A�-"Ert "c�v�n a communications facility site ., r " InFami-December 201i Concemed Voters of Huntington Beach HB -449- Item 11. - 181 J 12/13/2011 Summary Please consider these recommended changes before finalizing the zoning ordinance changes There are currently 45 WCTs(and 278 We believe these changes will further, antennas)with in 4 miles of City Hall strengthen the ordinance and protect .fl. is Huntington Beach residents from the numerous detrimental effects of unnecessary wireless ; L � ��♦ telecommunications facilities placed '`'' j�= ✓ ` r "'�'`�` ` '" ;;; ` tea- :x' next to their homes -Z .;t Prevent Huntington Beach from becorning"Celt Tower City'h7ste€d of infanti-December 2011 concerned Voters of Huntington Beach 11 Item 11. - 182 HB -450- 6 Ramos, Rack -ram: marleysmom2@verizon.net .Pent: Tuesday, December 13, 2011 11:21 AM To: Ramos, Ricky Cc: bill_kettler@yahoo.com Subject: Cell Tower Ordinance Amendments Importance: High Dear Mr. Ramos, Last year my neighbors and I stood before you to STOP the propsed T-Moblie cell tower from being installed at Community United Methodist Church and now here we are again! You should already be aware that members of the Huntington Beach communty have strong opinions regarding the placement of cell towers in our community, as our fight was not the first nor the last to come before your Planning Department and ultimatly the Huntington Beach City Council. At the turn of the 20th century Huntington Beach landscape was covered with unsigthly oil well and rigs which have thankfuly been mostly eliminated,and now you want to re-create the same unsightly landscape using cell towers? I urge you to STOP and really think about the landscape of our city and not only the financial aspect! PLEASE DO NOT APPROVE THE PROPOSED CELL TOWER ORDINANCE AMENDMENTS! Keep Huntington Beach a beautiful place to live,work, play and visit_ Thanks you, in advance, Jennie Bolotin 16732 Kettler Lane Huntington Beach, CA 92647 HB -451- Item 11. - 183 Ramos, Ricky From: Ron Passmore[ronpassmor@g mail.DOM] Sent Monday, December 12, 2011 7:09 PM To: De Coite, Kim; CITY COUNCIL.; Ramos, Ricky Cc: Bill Kegler; Dianne Larson; Don McFarland Subject: HB-Cell Tower Permits and Ordinance I Ht Kam, Please forward this entail to all members of the HB Planning Commission. Ricky, can you please email me to let me know that you received?Please also add this email to the records associated with this issue and the meeting set for 12/13/11. Dear Ricky, Commissioners, City Council Members and Mayor, First and foremost I would like to once again thank all of you who supported myself and my fellow neighbors who live around Community United Methodist Church(CLMC) at Neil and Edwa ds when in early 2010 you voted to deny T-Mobile's cell tower building permit application. It was a difficult time for all of us. We put forth a tremendous effort, and we forged tremendous friendships, that endure to today.We also developed an incredible Level of respect and admiration for the City Council of i Huntington Beach who bravely, and without hesitation,made decisions from their hearts; decisions that were in the best interest of their constituents,property owners,residents and HB families. I echo my appreciation and respect,because now,two years later,I want to be quite honest with each of you in that I find it quite concerning that again I must take time out of my life to request that you support my rights on an issue I have already invested time in.This should not be. I should be busy leading my life,working on my career, making nay mortgage payment,paying my property taxes,and working on my home to add value and beauty to our city,not writing another letter, or showing up at another meeting,planning session,or hearing; at least not on this subject. I understand that sometimes we must revisit,we must find closure,we must set the ground rules,process, governance and policies to permanently solidify those measures designed to make the protection of our rights everlasting, and impenetrable; so again,I offer my opinion, and my request. It is not fancy,it is not one based on any significant knowledge on my part of legalities or technicalities. It is a perspective of common sense, honor and respect.It is a perspective that has in its foundation the most elementary and important rule of humanity: "Do onto other's, as you would have them do onto you". When I purchased my home at 16632 Dale Vista Lane in Huntington Beach I purchased a home over 1500 feet from any commercial property,in the equivalent of a cul-de-sac(actually,it is more of an island,off the flow of traffic),five houses from a park to the South and five houses from a church (CUMC)to the North,and I paid a premium for that; gladly. The market value for homes of the same square footage in my tract,but adjoining commercial property,was thirty thousand dollars less. Had the CUMC T-Mobile site been built,their cell tower would have been clearly visible from my front yard, from the middle of my street,and from every front and back yard of every HB resident living within the 500 or 600 foot range we live in. It would have stuck out like a sore thumb-thumbing itself at all of us, day-in,day-out for the rest of our lives. It would have hummed and made noise, it would have degraded our standard of living,and it would have degraded our property values(there is plenty of evidence that cell towers have a measurable negative impact on property values, it would be naive to think that cell towers positively affect property values). i Item 11. - 184 HB -452- T-Mobile would have made money,added a valuable asset to their balance sheet,and CU:MC would have gained a monthly rental cash flow,but all at a tremendous expense to only one group of individuals, citizens, residents;us,those who invested in horses in our neighborhood,deep in the tract,far from commercial property,near a park,and near a church,and at a premium. I had really hoped that the only development I would see in my neighborhood as I grew older would be the further development of Irby park,with a school,or a nature garden, or maybe both;not a cell tower at CUMC. You know,we residents should be able to have unwavering trust in our city officials to diligently protect our rights,and to protect the unspoken promise we assumed was ours;that the actions of the city planners and officials would improve our lives, our neighborhoods,our air,our water, and our peace. Cell towers should only be permitted with the strictest of guidelines in place,and with an overall driving objective to make them minimally intrusive,minimally invasive;to keep them as far from our neighborhoods as possible,and our neighborhoods pristine. • Cell towers should be allowed in industrial and commercial zones only. s Cell towers should not be allowed in parks or schools. • Cell towers should be kept out of neighborhoods. • Churches located in neighborhood tracts should not be allowed to be re-zoned to allow a tower to be built on their properties.A church in a neighborhood should be off limits to cell towers just as parks and schools in neighborhoods are.It's a neighborhood,not an industrial park, or shopping mall. • Cell providers should be forced to negotiate with commercial property owners and pay the market rate for leasing their property. They should not be able to go to a church in the middle of a neighborhood to get a cheaper lease rate—at the expense of the surrounding property owners and families. • Housing tracts should not be penetrated by commercial development. Those that invest deep in a tract for the beauty, exclusivity and quietness of a home deep in a tract should be afforded the right to enjoy i that which they invested in_ • Huntington Beach residents should not be subjected to corporate development,investments or profiteering that would put themselves,their peace,their life or the value of their properties in harm's way_ • Huntington Beach residents should not be victimized by indirectly subsidizing cell company lease minimization tactics and strategies. • Cell companies should not be allowed the profit windfall they would experience by encroaching into our neighborhoods, at our expense. ® Property owners within 1000 feet of a cell tower permitted in a neighborhood should be paid a one-time payment of 2%to 12%of their property values,with those living closest to a new cell tower site receiving the higher end,and those living furthest from the site closer to the lower end_ A clear message needs to be sent to the cell companies and that is that while development and technological progress is important,it must be balanced against the good of the people,our environment,our peace,and the rights of the residents and property owners of Huntington Beach. Changes in the rules,exceptions,conditional uses,re-zoning,etc. should be allowed to favor property owners. We deserve this. 2 HB -453- Item 11. - 185 If CUMC,T-Mobile, or any other entity is willing to disregard goodness for greed, fairness for money,the City Council ofHB is all.we have left to guard that they are not allowed to do onto us, as none of us good people in my neighborhood would do onto them Thank you. Ron Passmore,MBA.,PMP Mobile: 949-355-9612 Home Office; 714-847-6932 Fax: 714-415-2417 LinkedIn Profile: www.linkedin-oom/in/rooassmore * Please update your contact information to reflect my new gmail email address:ronpassmor(a�gmail.com i 3 f f 3 Item 11. - 186 HB -454- Ramos, Ricky Subject: FW: Burbank ACTION From: De Coite, Kim Sent: Tuesday, December 20, 2011 4:20 PM To: Barbara Delgleize; Blair Farley; Elizabeth Burnett(E-mail); Erik Peterson; Janis Mantini; Mark Bixby; Timothy J. Ryan Cc: Hess, Scott;Vigliotta, Mike; Fauland, Herb Subject: FW: Burbank ACTION Please see the email below from Ron Passmore. Kimberly De Coite Administrative Assistant Planning and Building Department 714536-5276 kdecoite@surfcity-hb.org From: Ron Passmore [mailto:ronpassmor@gmail.com] Sent: Saturday, December 17, 2011 11:53 PM To: Carchio, Joe, Don McFarland; Bill Kettler; Dianne Larson; De Coite, Kim Subject. Burbank ACTION http://sites-google.com/site/nocelltowerinourneighborh od/horne/decreased-real-estate-value _Ai Kim, Please make sure this gets to the planning commission. Thanks for your help, and Merry Xmas. Ron Passmore, MBA, PMP Mobile: 949-355-9612 Horne Office: 714-847-6932 Fax: 714-415-2417 Linkedln Profile: www.linkedin.com/in/ronpassmore * Please update your contact information to reflect my new gmail email address: ronpassmorggmail.com i HB -455- Item 11. - 187 Ramos, Ricky From: lori genzano-burrett[Igenzano@gmail.com] Seat: Monday, April 11, 2011 1:02 PM To: Ramos, Ricky Cc: jeffb Busche Subject: Last email regarding cell tower zoning Ricky, Mere are sample ordinances by other cities that have recently adopted them. If you need any other legal cases or sample ordinances please let us know. Thank you again for your efforts and openness. Have a great week, Lori Burrett 1. On the this website page it has 12 different city wireless ordinances that have been adopted recently, it is at the bottom of the page. Great resource. https://sites.google.com/site/nocelltoweruioumeiyhborhood/home/december-1-2010-burbank-community- meeting 2. This is what Jeff Busche is referring to when he spoke of cities have the LEGAL RIGHT to zone based on their own Judge upheld right for city zoning to protect their aesthetics from antennas and cell towers: http:// eorgiazoningblog.wordpress.com/2008/05/29/that-cell-tower-aiin%E2%80%99t-pretty! "Telecommunications Act does not preempt state or local zoning powers so long as local governments (1) do not unreasonably discriminate among providers; (2) prohibit personal wireless services; or, (3) limit placement of wireless facilities based upon "environmental effects of radio frequency emissions." The Court held that the aesthetic "goals" of the Pickens Countyzoning ordinance did not conflict with the TCA because nothing in the TCA "forbids local authorities from applying general and nondiscriminatory standards derived from their zoning codes, and . . . aesthetic harmony is a prominent goal underlying almost every such code." i Item 11. - 188 HB -456- ATTACHMENT # 13 He -457- Item 11. - 189 City of Huntington Beach Planning and Building Department STAFF REPORT HIMTBiGTON BEACH TO: Planning Commission FROM: Scott Hess, AICP, Director of Plani ing and Building BY: Ricky Ramos, Senior Planner P-t2-- DATE: December 13, 2011 SUBJECT: ZONING TEXT AMENDMENT NO. 09-002 (WIRELESS COMMUNICATION FACILITIES) APPLICANT: City of Huntington Beach, 2000 Main Street, Huntington Beach, CA 92648 PROPERTY OWNER: Not applicable LOCATION: Citywide STATEMENT OF ISSUE: + Zoning Text Amendment No. 09-002 request: - Amend Section 230.96 (Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) by revising the citywide permitting and entitlement process for wireless communication facilities (WCFs) as well as other provisions of the current ordinance. + Staffs Recommendation: Approve Zoning Text Amendment No. 09-002 based upon the following- - It will establish the City's desired approval process and requirements for WCFs allowing for increased public participation and notification. - It will continue to allow WCFs throughout most of the city while protecting the community's general welfare and quality of life through the new permitting and entitlement process which now requires a CUP for all ground and utility mounted WCFs regardless of location and design. - It will make the review of WCFs consistent with that of other projects by focusing on traditional city planning concerns such as aesthetics, land use compatibility, and code compliance and not on need based on a gap in service. - It will properly require the gap in service and least obtrusive location review by an expert consultant only in cases when the applicant asserts Federal law preemption of the City's denial of a WCF. - The Design Review requirements will be consistent with existing provisions on the HBZSO and provide the City greater aesthetic control. Item 11. - 190 HB -458- #B-2 RECOIUIENIIATION: Motion to: "Approve Zoning Text Amendment No. 09-002 with findings (Attachment No. 1) and forward the draft ordinance (Attachment No. 2)to the City Council for adoption," ALTERNATIVE ACTION(S): The Planning Commission may take alternative actions such as: A. "Approve Zoning Text Amendment No. 09-002 with modifications (require CUP for all WCFs witl-in 500 feet of a school site) and forward the modified draft ordinance to the City Council for adoption." B. "Approve Zoning Text Amendment No. 09-002 with modifications(prohibit WCFs on city-owned park land when adjacent to an elementary school) and forward the modified draft ordinance to the City Council for adoption." C. "Continue Zoning Text Amendment No. 09-002 and direct staff accordingly." D. "Deny Zoning Text Amendment No. 09-002 with findings for denial." PROJECT PROPOSAL: Zoning,Text Amendment(ZTA)No.No. 09-002 represents a request pursuant to Chapter 247 to amend Section 230.96 (Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) by revising the citywide permitting and entitlement process for wireless communication facilities as well as other provisions of the current ordinance. The most significant changes that ZTA No. 09-002 would implement include: 1. A Conditional Use Permit (CUP) (public hearing) requirement for any new ground or utility mounted WCF in contrast to current code which permits them with a Wireless Permit and building permit only (no public hearing) if consistent with zoning standards (Section 230.96(E.3)); 2. A Wireless Permit will no longer be required for all WCFs. Instead a WCF will either require a Wireless Permit or a Conditional Use Permit(Section 230.96(E.1)); 3. Applicants will no longer have to demonstrate an existing gap in service and least obtrusive location for the WCF except as part of a Denial of Effective Service appeal (Section 230.96(F)); 4. A provision for a Denial of Effective Service appeal to allow an applicant to assert that Federal law preempts the City from denying an application because denial would effectively prohibit wireless service. The appeal fee will be used by the City to hire a consultant to review and verify if a proposed WCF is needed to fill an existing gap in service and if it is located in the least obtrusive location feasible so as to eliminate a gap in service(Section 230.96(F)); and 5. The requirements for Design Review have been revised(Section 230.96(E.4)). In addition, the following notable changes to the existing ordinance are also proposed: PC Staff Report—12/13/11 HB -459- (usa Item 11. - 191 1. New Purpose Section(Section 230.96(A)); 2. Added and revised various definitions (Section 230.96(B)); 3. Simplified Applicability Section(Section 230.96(C)); 4. Clarified Exceptions Section(Section 230.96(D)); 5. Additional revisions to Process to Install and Operate WCFs Section including (Section 230.96(E)); a. A requirement for co-location has been added. b. An additional 10 feet of height permitted beyond base zoning district maximum as outlined in Section 230.72 is now specified. 6. Revised WCF Standards Section by prohibiting chain link fencing for equipment enclosure, deleting a requirement to record the conditions on the property title, adding a co-location provision, retaining a portion of the interference provision, expanding the types of agreements necessary on City property, deleting most of the provisions regarding WCFs on public property which may be incorporated in the Municipal Code in the fixture, and incorporating other minor revisions throughout(Section 230.96(G)). The City Council initiated the ZTA to address community concerns regarding the permitting and entitlement process in the current ordinance. Since the Planning Commission study sessions last month staff has made a few additional minor changes to Section E(1)(f) and Section H to clarify requirements on City-owned property and right-of-way. These changes are reflected in the attachments to the staff report. Background: The City has been reviewing requests for WCFs for over 20 years. Due to the increasing number of requests for WCFs, in 1995 a policy was developed to clarify the procedures for establishing WCFs in the city. The policy allowed WCFs on private property in commercial, industrial,public-semipublic, open space-parks and recreation districts and in commercial and industrial areas of specific plans subject to additional provisions. WCFs that complied with the zoning code development standards and were screened from view or were greater than 300 feet from a residential zoning district if freestanding were allowed without a CUP. WCFs that were not screened from view, freestanding and within 300 feet of a residential zoning district, or exceeded the height limit for the base zoning district required a CUP. In 2002 the City adopted a WCF ordinance that codified the previous policy and streamlined the approval process by allowing proposed WCFs that complied with code and provided screening to be allowed by building pen-nit only and no CUP. In 2007 the City revised the WCF ordinance by establishing a Wireless Permit application process that requires applicants to demonstrate that a proposed WCF is located in the least obtrusive location feasible so as to eliminate a gap in service. In April 2009 the City Council held an emergency meeting regarding a WCF at Harbour View Park. At that meeting the City Council: Item 11. - 192rt-- 12/13/11 HB -460- (IISR07 ZTA 09-002) ■ Directed staff to prepare a ZTA to address the permitting and entitlements of WCFs located within 500 feet of school sites and to require a CUP at a fully noticed public hearing; and ® Requested that staff analyze prohibiting WCFs on city-owned park land that is adjacent to an elementary school. Staff commenced the ZTA upon receiving Council's direction in 2009 but put it on hold pending the outcome of some lawsuits. Study Session: The request was presented to the Planning Commission for study session on November S and 22, 2011. As a follow up response to a Planning Commission question, since 1990 the city has received approximately 170 applications for WCFs the majority of which have been built. ISSUES: Subject Property And Surrounding Land Use,Zoning And General Plan Designations: ZTA No. 09-002 is applicable citywide. General Plan Conformance: The proposed ZTA is consistent with the goals, objectives, and policies of the City's General Plan as follows: A. Land Use Element Policy L U.l.L I._ Establish incentives for the development of uses to support the needs and reflect the economic demands of City residents and visitors. Goal L U 2: Ensure that development is adequately served by transportation infrastructure,utility infrastructure, and public services. Goal LU 4: Achieve and maintain high quality architecture, landscape, and public open spaces in the City. Obieetive LU9.2: Provide for the preservation of existing residential neighborhoods. B. Utilities Element Goal U 5: Maintain and expand service provision to City of Huntington Beach residences and businesses. Obiective U 5.1: Ensure that adequate natural gas,telecommunication and electrical systems are provided. PC Staff Report—12/13/11 HB -461- (11swItem 11. - 193 Policy U 5.1.1: Continue to work with service providers to maintain current levels of service and facilitate improved levels of service. C. Coastal Element Policy C 4.2.4: Wireless communication facilities shall be sited, to the maximum extent feasible,to minimize visual resource impacts. Minimization may be accomplished through one or more of the following techniques: co-locating antennas on one structure, stealth installations,locating facilities within existing building envelopes, or minimizing visual prominence through colorization or landscaping and removal of facilities that become obsolete. D. Economic Development Element Policy ED 2.3.1: Strive to reduce all discretionary permit and licensing processing time. The proposed ZTA will continue to allow WCFs in most zoning districts subject to City approval to service the needs of the residents,businesses, and visitors and continue to provide processing incentives for those facilities that meet certain development standards. It continues to encourage WCFs to use stealth techniques and-requires all associated buildings or structures to be compatible with the surrounding environment. It will provide for the preservation of existing residential neighborhoods by elevating the approval process through a conditional use permit requirement for all ground mounted and utility mounted WCFs. Zoning Compliance: Not applicable. Urban Design Guidelines Conformance: The proposed ZTA continues to include a provision that all WCFs shall comply with the Urban Design Guidelines, Environmental Status: ZTA No. 09-002 is categorically exempt pursuant to City Council Resolution No. 4501, Class 20,which supplements the California Environmental Quality Act because the request is an amendment to a zoning ordinance that does not change the development standards intensity or density. Coastal Status: The proposed amendment will be combined with other minor amendments that will be forwarded to the California Coastal Commission as a mia-ior Local Coastal Program Amendment for certification. Redevelopment Status: Not applicable. Design Review Board: Not applicable. Subdivision Committee: Not applicable. Other Departments Concerns and Requirements: ZTA No 09-002 was prepared by Planning staff and the City Attorney's Office with input from the Police Department, Public Works Department, Community Services Department, and Economic Development Department. Item 11. - 194rt-12/13/1 i HB -462- (11SR07 ZTA 09-002) Public Notification: Legal notice was published in the Huntington Beach/Fountain Valley Independent on December 1,2011 and notices were sent to individuals/organizations requesting notification(Planning and Building Department's Notification Matrix). Notice was also sent to individuals who spoke at the City Council meetings regarding the proposed WCFs at Harbour View Park, Bolsa View Park, and Community United Methodist Church; the wireless industry; and interested parties. As of December 6, 2011, several communications regarding the request have been received and are attached to this report. Application Processing Dates_ DATE OF COMPLETE APPLICATION; MANDATORY PROCESSING DATE(S). May 4, 2009 Legislative Action-Not Applicable ANALYSIS: The primary planning issue related to the request pertains to the appropriate approval process and requirements for WCFs throughout the city in consideration of maximizing the goals of the General Plan. The following analysis addresses the major revisions to the ordinance. CUP Requirement For All Ground and Utility Mounted WCFs The first major revision to the ordinance is a new requirement for a CUP for all ground and utility mounted (freestanding) WCFs regardless of location or design. Recent WCF proposals that have generated public concern at Harbour View Park, Bolsa View Park, and Community United Methodist Church have all involved monotree designs which are ground mounted WCFs designed to replicate a tree. Freestanding designs such as ground mounted WCFs are often not fully screened from view in comparison to designs such as roof and wall mounted WCFs. Because the existing ordinance allows ground mounted WCFs that are stealth(e.g.monotree) in non.-residential zones by Director approval only of a Wireless Permit (no public hearing), it is common to see these proposals built near sensitive uses such as residential areas and schools, which are often near non-residential zones such as a commercial center,park, or church. To address the concern about the current approval process,staff is recommending that all ground and utility mounted (freestanding) WCFs now require a CUP. The CUP will provide the City greater discretion to review the aesthetics and neighborhood compatibility of a proposed ground or utility mounted WCF with input from the community at a public hearing. The table below provides a comparison of.the approval process in the existing and the draft wireless ordinance. In addition,flow charts for the existing and draft ordinance are also provided as Attachment 6 to the staff report. PC Staff Report-12/13/11 HB -463- (11sRo Item 11. - 195 Wireless Permit (WP) and Conditional Use Permit (CUP)Requirements WCF Type Existing Ordinance Proposed Ordinance 1. Co-located WCF Permitted in Residential+Non- No change. - Existing height Residential Zones by WP only. - Stealth design for co-located WCF 2. Modified WCF No change. - Height complies - Stealth design 3. New WCF Similar except CUP required if new - Height complies ground or utility mounted WCF. - Completely stealth design 4. New ground or utility mounted Permitted in Residential Zones by CUP required if new ground or WCF CUP, utility mounted WCF. - Height complies - Stealth design Permitted in Non-Residential Zones by WP only. Notes: 1. Any WCF with a valid entitlement may be modified within the scope of the entitlement without compliance with WCF ordinance. 2, if a WCF does not meet the requirements for approval of a WP,then a CUP is required. City Council gave direction to.address the permitting and entitlement of WCFs within 500 feet of school sites and to require a CUP at a fully noticed public hearing and also requested that staff analyze prohibiting WCFs on city-owned park land that is adjacent to an elementary school (Alternative Actions A and B). Staff s recommendation is to take a citywide approach by requiring a CUP for all ground and utility mounted WCFs regardless of location or design rather than just requiring a CUP for all WCFs proposed within 500 feet of schools. In addition, staff' recommendation does not involve an outright prohibition to avoid a conflict with Federal law. The staff recommendation allows public input at a noticed public hearing on the CUP before action can be taken on a proposed ground or utility mounted WCF unlike what occurred with the proposed WCFs at Harbour View Park and Bolsa View Park. Alternatively,the City could choose to retain the current Wireless Permit process (i.e. Director approval) but include Neighborhood Notification, which would provide notification of a proposed WCF to property owners and tenants within 300 feet of the property where the WCF is proposed prior to the Director's action. The Director's action on the Wireless Permit may then be appealed to Planning Commission by anyone who disagrees with the decision. The appeal to Planning Commission would result in a noticed public hearing. The alternative of requiring Neighborhood Notification instead of a CUP would still offer the protection of a public hearing upon appeal of the Director's action on the Wireless Permit without requiring a CUP for all ground and utility mounted WCFs. This would allow proposed WCFs that do not generate any controversy to continue to have a streamlined approval process while those that generate public concern will likely be appealed to the Planning Commission. Item 11. - 196rrt-12/13/11 HB -464- (11SR07 ZTA 09-002) Wireless Permit The second major revision to the ordinance is that a Wireless Permit will no longer be required for all WCFs. The Wireless Permit will only be required where a CLIP is not required. Under the existing ordinance,the Wireless Permit application is the time when staff reviews the applicant's information regarding why the WCF is needed to fill an existing gap in service and is located in the least obtrusive location. If staff determines that the WCF cannot qualify for Director approval then a CUP is required. This revision will improve the process by removing what is now an unnecessary step of applying for a Wireless Permit only to be informed that a CUP is required. This change is particularly relevant since the proposed ordinance also changes the requirement to demonstrate that the WCF is necessary to fill an existing gap in service and is in the least obtrusive location to only cases when an appeal is filed to the Planning Commission as further explained below. Gap In Service and Least Obtrusive Location The third major revision is that an analysis to demonstrate that a WCF is needed to fill an existing gap in service and is located in the least obtrusive location will no longer be necessary. An in-depth review of a gap in service and least obtrusive location is a very complex review involving a variety of factors that require scientific evidence from an expert in the field. The proposed ordinance will focus the City's review of Wireless Permit and CUP applications to the traditional city planning concerns such as aesthetics, land use compatibility, and code compliance while no longer considering whether a proposed WCF is needed due to a gap in service. This approach is the same one taken by the City when reviewing CUPS for other projects where the need for the project is not a factor in the approval or denial. The gap in service and least obtrusive location review will now only occur if a Denial of Effective Service appeal is filed as explained below. Denial of f f ective Service Appeal The fourth major revision to the ordinance is the addition of a provision for a Denial of Effective Service appeal to allow an applicant to justify that Federal law preempts the City from denying an application because denial would effectively prohibit wireless service. The Denial of Effective Service appeal may be filed by the applicant if the decision on the Wireless Permit or CUP is appealed either by the applicant or an aggrieved party. A separate appeal fee will be charged and be used by the City to hire a consultant to review and verify if a proposed WCF is needed to fill an existing gap in service and if it is located in the least obtrusive location feasible so as to eliminate a gap in service. Designs Review The fifth major revision to the ordinance involves primarily updating the requirements for Design Review to match the existing provisions in the HBZSO. As shown in the table below, similar to the current ordinance, the proposed ordinance does not require Design Review for WCF designs that qualify for Director approval. However, under the proposed ordinance,this exemption from Design Review would now only apply if any associated equipment is located underground or within an existing building or existing enclosure to provide the City greater aesthetic control. PC Staff Report—12/13/1 1 HB -465- (11sR(Item 11. - 197 Design Review Requirements WCF Type Existing Ordinance Proposed Ordinance 1. Co-located.WCF Design Review required only if CUP Similar except: - Existing height required in the following locations: - Stealth design for co-located 1. Added WCFs in/abutting/ WCF 1. Redevelopment areas; adjoining City facilities; 2. Modified WCF 2. Public right-of-way; Z_ Added WCFs in/abutting/ - Height complies 3. OS-PR(Open Space—Parks and adjoining OS-PR and OS-S(Open - Stealth design Recreation)zone; Space—Shoreline)zones; 3. New WCF 4. PS(Public-Semipublic)zone; 3. Added WCFs abutting/adjoining - Height complies 5. Specific Plans; General Plan primary and - Completely Stealth design 6. On or within 300 ft. of residential secondary entry nodes; 4. New ground or utility mounted district; and 4. Added on or within 300 ft.of WCF 7. Areas designated by City residential use;and - Height complies Council. - Stealth design No Design Review required if only a No Design Review required if only a WP is required. WP is required and equipment located underground or within an existing building or existing enclosure. SUMMARY: Staff s Recommendation: Approve Zoning Text Amendment No. 09-002 based upon the following: ® It will establish the City's desired approval process and requirements for WCFs allowing for increased public participation and notification. a It will continue to allow WCFs throughout most of the city while protecting the community's general welfare and quality of life through the new permitting and entitlement process which now requires a CUP for all ground and utility mounted WCFs regardless of location and design. ff It will make the review of WCFs consistent with that of other projects by focusing on traditional city planning concerns such as aesthetics, land use compatibility, and code compliance and not on need based on a gap in service. M It will properly require the gap in service and least obtrusive location review by an expert consultant only in cases when the applicant asserts Federal law preemption of the City's denial of a WCF. 0 The Design Review requirements will be consistent with existing provisions on the FIB.ZSO and provide the City greater aesthetic control. Aq CUMMN"TS: 1. Suggests adings of Approval—ZTA No, 09-002 2. Draft Ordinance 3. Legislative Draft HBZSO 230.96 -ZTA No. 09-002 (December 2011) 4. Proposed BBZSO Section 230.96(st`affiaat otated changes) 5. Existing HBZSO Section 230.96(staff annotate es) 6. Existing and Draft Ordinance Flow Charts Dated Deecm c , 011 7. Examples: WCF Designs(Non-Stealth, Stealth, Completely Stealth 8. City Attorney's Response to Wireless Industry Comments Dated November 1 , 9. Comment Letters: Item 11. - 198)rt-12/13/11 HB -466- (11SR07 ZTA 09-002) obile/Martin L.Fineman dated September 12, 2011 Vern /Sarah L. 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Its mo,", ,lf up 'oo 'jm/ low AFF "S'l A "?f.............. 1/1011—OF All 0/111s, COMMUNICATIONS RECEIVED REGARDING AGENDA ITEM: ZONING TEXT AMENDMENT NO. 09-002 (WIRELESS COMMUNICATION FACILITIES) HB -483- Item I I.- - 215 Esparza, Paa From: Flynn, Joan Sent: Sunday, January 29, 2012 1:25 PM To: Esparza, Patty; Lugar, Robin Subject: Fw: Zoning Text Amendment No. 09-002 (Wireless Communication Facilities) Attachments: Letter to CC re Zoning Text Amendment—Signed.docx Joan L. Flynn, CIVIC Huntington Beach City Clerk From: Gay Infanti [mailto:ginfanti@verizon.net] Sent: Sunday, January 29, 2012 01:14 PM To: Hansen, Don; Dwyer, Devin; Boardman, Connie; Bohr, Keith, Carchio, Joe; Harper, Matthew; Shaw,Joe; Flynn, Joan Subject: Zoning Text Amendment No. 09-002 (Wireless Communication Facilities) Ms.Joan Flynn, Honorable Major, and Members of the City Council: Attached please find our letter containing recommendations for additional changes to Zoning Text Amendment No.09- 002 (Wireless Communication Facilities),which we believe are necessary to strengthen Section 230.96 of the zoning ordinance and provide the City increased protections and discretion in decisions concerning wireless telecommunication facility permit applications. We hope you will review these recommendations in preparation for the upcoming public hearing scheduled for Monday, February 6 th, and take them into consideration prior to approving the zoning text amendment. Thank you for your attention to this matter. Gay and Mark Infant Item 11. - 216 HB -484- January 30,2012 Huntington Beach City Council C/o Joan L. Flynn,City Clerk City of Huntington Beach 2000 Main Street,2 nd Floor Huntington Beach,CA 92648 Re:Zoning Text Amendment 09-002,Wireless Communication Facilities Honorable Mayor and Members of the City Council: We are writing to urge you to consider our recommendations for additional changes to Zoning Text Amendment (ZTA)09-002,Wireless Communications Facilities, before you approve it. ZTA 09-002 should be written to protect, as completely as possible, Huntington Beach's right to prevent the Installation of wireless communication facilities (WCF),especially when unjustified,in residential and other areas of Huntington Beach where they would negatively impact HB citizens or the environment. This zoning ordinance must include all of the provisions required to deny wireless permits when necessary to prevent negative impacts. While we support the effort to revise the zoning ordinance to ensure optimal placement of wireless facilities in HB, while minimizing their negative impact on our neighborhoods, Public spaces,and environmentally sensitive areas we believe additional changes are necessary to protect HB residents, help prevent loss of residential property values, protect the environment, and maintain the quality of life in HB. Our major concerns with the ZTA are the elimination of the following existing provisions,which we believe weakens the zoning ordinance and makes HB more vulnerable to wireless communication providers and to the negative impacts their WCFs would bring to our city. • The elimination of the requirement to place WCFs in non-residential areas • The elimination of the requirements for WCF applicants to justify need based on a signific gap in coverage,investigate alternative locations,and demonstrate a proposed location is least obtrusive We believe specific changes to sections of the ZTA are required to re-insert needed protections,and ensure the ZTA can meet its intended objectives. Additional changes,which are included in our recommendations below, are needed to clarify and strengthen the zoning ordinance to protect HB and its citizens. Please consider the following recommendations before approving Zoning Text Amendment 09-002. * Retain the original wording in Section A, Purpose,which says W/L communications are encouraged,while It preventing visual clutter by locating WCFs outside of residential zones"and further states that"all WCFS will comply with these regulations with regard to their location." With the elimination of this wording, WCFs;will be allowed in residential neighborhoods where they where they will have a significant detrimental impact on residential property values, up to 20%according to a local realtor and to the Appraisal Institute,assuming that a home adjacent to a'cell phone tower is saleable. * The ZTA increases the Director's authority to grant wireless permits without public notice or hearing. The discretionary authority of the Director to determine whether a WC project can proceed with only a wireless permit should be eliminated from the ZTA. Wireless permits do not require either public notice or a public hearing,so affected property owners will not likely learn of it until the WCF is built—too late to HB -485- Item 11. - 217 appeal the Director's decision to the Planning Commission. The ordinance should require that all projects proposed in or adjacent to residential neighborhoods or environmentally sensitive areas require a conditional use permit(CUP)or,alternatively,that decisions to grant wireless permits in lieu of CUPs require notification to all affected property owners in the neighborhood. Reinsert the requirement for WCF providers to prove the need for a proposed WCF and to establish the proposed WCF location is least obtrusive, after consideration of alternative locations. The removal of these provisions from the zoning ordinance eliminates much of the discretion that HB would otherwise have to deny WCF permits to providers who may not truly need them to eliminate a significant gap in service or who have failed to consider more suitable, less obtrusive locations. In MetroPCS Inc.v. the City of San Francisco,the court found that it must take applicable state and location regulations as it finds them and evaluate a decision's evidentiary support relative to those regulations. In T-Mobile USA v.the City of Anacortes,the Court reiterated that a city may deny a wireless permit if the applicant has not proven a significant gap in service or demonstrated the proposed site is the least obtrusive,as long as these requirements are included in the local zoning ordinance WCF providers are required by zoning text amendment 09-002 to demonstrate that a significant gap in coverage exists only in the case of a Denial of Effective Service Appeal. However,to prevent the installation of unnecessary WCFs that would negatively impact HB citizens or their environment, as well as to prevent HB Citizens from having to file timely and costly appeals, providers should be obligated to demonstrate their needs up front in the application process. The process currently established in the zoning text amendment for demonstrating a significant gap in a Denial of Effective Service Appeal is a good one. The zoning ordinance be revised to specify this process be used by providers when initially applying for permit(s)to install a WCF. The requirement to co-locate new WCFs with existing facilities located within 2500 feet should be revised to require co-location of proposed new WCFs within 5000 feet of existing WCFs. Recent applications for WCFs proposed in HB indicate projected transmission ranges in excess of a mile in any direction. Therefore,co-location with existing facilities could be increased from within 2500 to within 5000 feet to prevent HB from being overrun by cell towers. Allowing placement of cell towers every 2500 feet could result in a cell tower at every major intersection in our city(based on the city's grid). Providers are not necessarily seeking to construct cell towers to improve mobile phone service to Huntington Beach residents. Excess WCF capacity is highly desirable to these providers,some of whom are actively promoting their capacity,and making significant,revenues from selling it to other companies. They are,therefore,very likely to continue constructing WCFs in HB if allowed,whether or not they are needed to improve service to HB residents, as long as this revenue stream is lucrative,and they will do so at the expense of Huntington Beach residents. To avoid potential negative aesthetic impacts of WCFs on HB neighborhoods, including visual blight and diminution of property value,the ordinance should require that any WCF placed in or near a residential area be"completely stealth",that is completely screened from view. So-called"stealth palm trees" (monopalms)and monopines are not realistic looking and hardly stealthy given their typical size and appendages. In addition,when making a determination of compatibility, the ordinance should require that consideration be given to the placement of all other utilities in the neighborhood. For example,an above-ground WCF is incompatible in a neighborhood where all other utilities are buried. Item 11. - 218 HB -486- Since property values are significantly affected for homes within 1200 feet or less of a WCF,the ordinance should require that notices of public hearings to approve wireless/conditional use permits for WCFs be given to all property owners within a 1200 foot radius. These recommended changes,when incorporated into the zoning ordinance,will ensure that FIB residents are better protected from the numerous negative impacts on their environment,their neighborhoods,their property values,and their quality of life,which would result from indiscriminate placement of WCFs in our City's residential neighborhoods and environmentally sensitive areas. Given the large number of wireless communication facilities already in existence in Huntington Beach, many proposed WC:Fs that could be approved for future construction would likely be unnecessary for the improvement of HB residents'wireless communications service. We urge you to consider these recommendations and revise Zoning Text Amendment 09-002 accordingly, before approving it. Thank you, Gay Infanti Mark Infanti HB -487- Item 11. - 219 Esparza, Patty From: Surf City Pipeline[noreply@user.govoutreach.com] Sent: Monday, January 30, 2012 1:23 PM To: CITY COUNCIL; agendaalerts@surfcity-hb.org Subject: Surf City Pipeline: Comment on an Agenda Item (notification) Request# 10353 from the Government Outreach System has been assigned to Johanna Stephenson. Request type: Comment Request area: City Council -Agenda& Public Hearing Comments Citizen name: Dana Drake Description: Please have(1)proof of gap in coverage, (2)proof that the subject location is the best choice and (3) evidence of research into alternate sites in the City Ordinances regarding cell towers. Many thanks for a good job. We appreciate it. Dana Drake, attorney Expected Close Date: 01/31/2012 Click here to access the request Note: This message is for notification purposes only. Please do not reply to this email. Email replies are not monitored and will be ignored. Item 11. - 220 HB -488- Ramos, Ricky From: Ramos, Ricky 3ent: Wednesday, February 01, 2012 10'.08 AM To: 'larsondj@verizon.net' Cc: Flynn, Joan Subject: RE: Re: RE: R E: Zon i ng Text Amen d ment 09-002 -C C mtg Feb 6, 2012 Hi Dianne — The PC did not include in any of their motions changing "any"' to'all" in the DRB section as you recommended. Also, you are correct that Mr. Farley's motion was not explicit about excluding co- locations and modifications. However, I called him a few days after the PC hearing and Mr. Farley clarified that his intention was to exclude co-locations and modifications since those facilities are already existing. Keep in mind that co-locations or modifications that are not covered by a prior CUP or do not qualify for Director approval would still require a CUP. From: larsondj@verizon.net [mailto:larsondj@verizon.net] Sent: Monday, January 30, 2012 10:48 PM To: Ramos, Ricky Cc: Flynn, Joan Subject: Re: Re: RE: RE: Zoning Text Amendment 09-002 - CC mtg Feb 6, 2012 Hi again Ricky, watched part of the Dec 13 Planning Commission mtg tonight. At minute 53 of the DVD given to me by the Planning Dept(I expect the minute count would be the same for all copies), Mr. Bixby asked about the E4 section and if it was a typo of"any"instead of"all".You said you could change it if it would be more clear. Mr. Bixby said thank you- At hour 2:14,Mr. Farley proposed the straw vote that'any wireless facility within 1200 feet of residential'require a ZA CUP, and it was passed by the PC.That is different than "all new WCF's(excluding co-locations and modifications)"as stated in your email below. At hour 2:16, Mr. Bixby proposed the straw vote to expand the co-location requirement from 1,000 feet to 2,500 feet just as you state below. I will request that the City Council extend the co-location requirement to all categories of wireless facilities,not just new ground mounted WCFs. Thank again for your help. Dianne On 01/30/12, larsondj@verizon.net wrote: Hi Ricky, At the beginning of the hearing segment for the ZTA item,one of the Planning Commissioners asked you about the`any'Tall"wording because he had seen it in my PowerPoint. [ believe he referred to it as a'typo'and you said it could be changed. I ran watch the Planning Commission tape to tell you exactly who made the word substitution request,if you want. I think it is important because the words are not synonymous for non-legal people and will ease some fears of loopholes... Thanks. Dianne On 01/30/12, Ramos, Ricky<rramos(a)-surfcity-hb.c)rq>wrote: HB -489- Item 11. - 221 Hi PC did not make that recommendation. We also did not changethe staff version because those two words are synonyms. Regardless, feel freeto make that recommendation to CC. Since they mean the same I don't think wehave a preference anymore. Maybe we go really conservative and use both words. From:larsondi @hverizon.net rma ilto:larsondiaverizon.net] Sent: Monday,January 30, 2012 6:48 AM To: Ramos, Ricky Cc: Flynn, loan Subject: Re: RE: Zoning TeA Amendment 09-002 - CC mtg Feb 6, 2012 Hi Ricky, Thanks again. Don't forget that a third change was the word"any"tobe changed to"all"regarding design review.— A design review is not required for a wp,if--ALL--faciliitiesand equipment are underground or in an existing building or existing enclosure. Dianne On 01/27/12, Ramos, Ricky<rramos4surfcity-hb.or >wrote: HiDiane — We are still working on the staff report for the Feb. 6 CC hearing onthe ZTA. I believe the final report and attachments should be availableonline or at the City Clerk's Office starting Thursday, Feb. 2. If yourecall, the Planning Commission recommended only the following two changes tothe draft ordinance: 1. Requirea CUP to the ZA for all new WCFs (excluding co-locations and mod ifi cations)located within 1,200 feet of residential; and 2. Expandthe co-location requirement for new ground mounted WCFs from 1,000 to 2,500feet. Hopethis helps and see you on Feb. 6. 2 Item 11. - 222 HB -490- From: Flynn,Joari Sent:Thursday, January 26, 2012 7:18 PM To. 'larsondpverizon.net.;Ramos, Ricky Cc: Ross, Rebecca Subject: Re: Zoning Text Amendment 09-002 - CC rntg Feb 6, 2012 Diane,l am outat the strategic planning session all day Friday. I am not sure Rickyis in on Friday as 1/2 of city hall staff is off each Friday. If I have a copyl will get it to you when it is available and when I get in. Ricky may get toit before me. Joan Joan L. Flynn,CMC Huntington Beach City Clerk From: larsondj O)verizon.net.[mailto:larsondpverizon.net.] Sent: Thursday,January 26, 2012 07:04 PM To: Flynn,Joan; Ramos, Ricky Subject: Zoning Text Amendment 09-002 -CC mtg Feb 6, 2012 riello Joanand Ricky, I wouldlike a copy of the ZTA 09-002,Wireless Communication Facilities,as itwill be considered by the City Council on Feb 6. Can eitherof you email a copy of the current text that includes the changes voted on bythe Planning Commission, please? Thanks samuch! Diannel-arson 3 HB -491- Item 11. - 223 Ramos, Rick From: larsondj@vedzon.net Sent: Tuesday, January 31, 2012 10:44 PIM To: CFFY COUNCIL Cc: Flynn, Joan; Ramos, Ricky Subject: ZTA 09-002- Modification Requests-CC Meeting - Feb 6, 2012 Honorable Mayor and City Council Members, Please consider these issues before voting on Zoning Text Amendment No. 09-002, Wireless Communication Facilities, which will strongly affect the general well-being and property values of Huntington Beach residents. RETAIN Zoning Ordinance requirements for wireless provider's proof of 1)significant gap in coverage; 2) least obtrusive location; and 3)alternate location research. • When City ordinances contain regulations governing WCFs, City decisions based on those regulations are upheld by Federal courts, (Sprint PCS v Palos Verdes Estates) • The requirements should be submitted before an application is considered 'complete'. • If these current ZO requirements are deleted, unneeded WCFs that meet Design Review and Co-location requirements would be approved. • The burden of monitoring wireless providers would fall on HB residents. • The proposed ZTA would grant permits without these current requirements; appeals would require these proofs-, permits would be revoked if providers could not prove what was NOT previousiv required to grant permits ('significant gap', etc.)... Result: more lawsuits. • Telecommunications Act(TCA)does not guarantee 'seamless'wireless coverage free of small 'dead spots' (Sprint PCS v Palos Verdes Estates). Least Intrusive Means Standard (T-Mobile v Anacortes) • Provider has burden of showing lack of available technologically feasible alternatives. • Provider must show that the manner to fill gap in coverage is least intrusive. • Provider must consider less sensitive sites, alternate designs, co-location on existing structures. Planning Commission Meeting Modifications to ZTA (December 13, 2011) • Hr:Min 2:14—Mr. Farley proposed/PC approved that"any wireiess facility within 1200 feet of residential"zoning requires a ZA CUP. o <therefore, Public Notice and Public Hearinp • Hr:Min 2:16—Mr. Bixby proposed/PC approved to extend the co-location requirement for new ground mounted WCFs from 1,000 to 2,500 feet when feasible, o This should apply to ALL WCFs to avoid new facilities being proposed for every roof and wall within that 2,500 foot co-location requirement. • Hr:Min 0:53—Mr. Bixby asked about the ZTA E4 Design Review section and if there was an 'anyVall' 'typo'. (Design Review is not required for'Director approved'WCFs that"have any appurtenant facilities and equipment located underground or within an existing building or existing enclosure.") o Please request that the word "all" be substituted for"any"for clarification and to avoid loopholes. Thank you. Respectfully, Dianne Larson Item 11. - 224 HB -492- Lu2ar, Robin From: Surf City Pipeline[noreply@user-govoutreach.coml Sent: Wednesday, February 01, 2012 11:19 AM To: CITY COUNCIL; agendaalerts@surfcity-hb.org Subject: Surf City Pipeline: Comment on an Agenda Item (notification) Request# 10370 from the Government Outreach System has been assigned to Johanna Stephenson. Request type: Comment Request area: City Council -Agenda&Public Hearing Comments Citizen name: Peggy Tracy Description: Honorable Mayor and City Council Members, Please consider these issues before voting on Zoning Text Amendment No. 09-002, Wireless Communication Facilities,which will strongly affect the general well-being and property values of Huntington Beach residents. RETAIN Zoning Ordinance requirements for wireless provider's proof of 1) significant gap in coverage; 2) least obtrusive location; and 3) alternate location research. - When City ordinances contain regulations governing WCFs, City decisions based on those regulations are upheld by Federal courts. (Sprint PCS v Palos Verdes Estates) • The requirements should be submitted before an application is considered 'complete'. • If these current ZO requirements are deleted,unneeded WCFs that meet Design Review and Co-location requirements would be approved. • The burden of monitoring wireless providers would fall on HB residents. • The proposed ZTA would grant permits without these current requirements; appeals would require these proofs;permits would be revoked if providers could not prove what was NOT previously required to grant permits ('significant gap', etc.)... Result: more lawsuits. - Telecommunications Act(TCA)does not guarantee 'seamless' wireless coverage free of small 'dead spots' (Sprint PCS v Palos Verdes Estates). Least Intrusive Means Standard(T-Mobile v Anacortes) • Provider has burden of showing lack of available technologically feasible alternatives. •Provider must show that the manner to fill gap in coverage is least intrusive. • Provider must consider less sensitive sites, alternate designs, co-location on existing structures. Planning Commission Meeting Modifications to ZTA(December 13,2011) - Hr:Min 2:14—Mr. Farley proposed/PC approved that"any wireless facility within 1200 feet of residential"zoning requires a ZA CUP. o<therefore,Public Notice and Public Hearing>, - Hr:Min 2:16—Mr. Bixby proposed/PC approved to extend the co-location requirement for new ground mounted WCFs from 1,000 to 2,500 feet when feasible. o This should apply to ALL WCFs to avoid new facilities being proposed for every roof and wall within that 2,500 foot co-location requirement. HB '493- Item 11. - 225 - Hr:Min 0:53 —Mr. Bixby asked about the ZTA E4 Design Review section and if there was an'anyTall' 'typo'. (Design Review is not required for 'Director approved' WCFs that"have any appurtenant facilities and equipment located underground or within an existing building or existing enclosure.") o Please request that the word"all"be substituted for"any"for clarification and to avoi loopholes. PLEASE WRITE THE ORDINANCES ONCE AND FOR ALL TO PROTECT OUR BEAUTIFUL CITY. DON'T MAKE IT EASIER FOR TOWERS TO BE PUT WHERE THEY DO NOT BELONG!!!!! Sincerely, Margaret Tracy Expected Close Date: 02/02/2012 Click here to access the request Note: This message is for notification purposes only. Please do not reply to this email. Email replies are not monitored and will be ignored. Item 11. - 226 HB7494- NOTICE OF PUBLIC HEARING BEFORE THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH NOTICE IS HEREBY GIVEN that on Monday, February 6, 2012, at 6:00 PM in the City Council Chambers, 2000 Main Street, Huntington Beach, the City Council will hold a public hearing on the following planning and zoning items: E3 1. APPEAL OF PLANNING COMMISSION'S APPROVAL OF ENVIRONMENTAL IMPACT REPORT NO. 10-004 (BEACH AND ELLIS MIXED USE PROJECT). Appellant: Mayor Don Hansen. Applicant: City of Huntington Beach. PropeEly Owner: Morrie Golcheh, Progressive Property Management. Request: To review the environmental impacts associated with the Beach and Ellis Mixed Use Project to permit the development of 105 residential units, 37,000 square feet of retail space, and 483 parking spaces on 2.74 acres. The project improvements include the development of a six-story mixed use project with an internal parking structure allowing for retail along Beach Boulevard and Ellis Avenue at both the ground and second level with residential units above. Levels four through six accommodate the residential units and provide 10,500 square feet of residential open space. Additionally, 1,850 square feet of ground- level public open space is provided at the corner of Beach Blvd and Ellis Ave. The existing service station, restaurant and retail uses would be demolished as a result of this project. The project is located within the Beach and Edinger Corridors Specific Plan (BECSP), adopted in March 2010. Development on the project site was included in the Notice of Preparation for the BECSP EIR and analyzed as part of the larger scope of development contemplated in the BECSP EIR (Program EIR No. 08-008), which anticipated 120 residential units and 71,000 square feet of retail commercial including a two level health club for the subject property. As such, the analysis in Draft EIR No. 10-004 is tiered from the BECSP Program EIR where appropriate. Location: 18502-18552 Beach Blvd, 2.74-acre site located at the southeast corner of Beach Boulevard and Ellis Avenue. Proiect Planner: Rosemary Medel U/2. ZONING TEXT AMENDMENT NO. 09-002 (WIRELESS COMMUNICATION FACILITIES) Applicant: City of Huntington Beach Property Owner: Not Applicable Request: To amend Section 230.96 (Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance by revising the citywide permitting and entitlement process for wireless communication facilities (e.g. cell phone antennas and towers) as well as other provisions of the current ordinance. Location: Citywide Project Planner: Ricky Ramos NOTICE IS HEREBY GIVEN that Environmental Impact Report No. 10-004 is on file at the City of Huntington Beach Planning and Building Department, 2000 Main Street, and is available for public inspection by contacting the Department, or telephoning (714) 536-5271. NOTICE IS HEREBY GIVEN that Item #2 is categorically exempt from the provisions of the California Environmental Quality Act. NOTICE IS HEREBY GIVEN that Item #2 will require a Local Coastal Program Amendment certified by the California Coastal Commission. ON FILE: A copy of the proposed request is on file in the Planning and Building Department, 2000 Main Street, Huntington Beach, California 92648, for inspection by the public. A copy of the staff report will be available to interested parties at the City Clerk's Office on Thursday, February 2, 2012. 020612 Appeal EIR No 10-004(Beach Ellis Mixed Use Project)ZTA 09-002(Wireless Ord) ALL INTERESTED PERSONS are invited to attend said hearing and express opinions or submit evidence for or against the application as outlined above. If you challenge the City Council's action in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City at, or prior to, the public hearing. If there are any further questions please call the Planning and Building Department at (714) 536-5271 and refer to the above items. Direct your written communications to the City Clerk. Joan L. Flynn, City Clerk City of Huntington Beach 2000 Main Street, 2nd Floor Huntington Beach, California 92648 (714) 536-5227 http://huntingtonbeachca.�zov/HBPublicComments/ http://www.huntingtonbeachca.gov/ 020612 Appeal EIR No 10-004(Beach Ellis Mixed Use Project)ZTA 09-002(Wireless Ord) r r GL -wic P I a,J. finted by-0602 Patricia Gamino Jan 19.2012,;11:418 'Sim" Salesperson: Phone: Ad (714)536-5227 x 9.410 qaw -26-12 _*%4 01 nch City Of Huntington Beach(Parent) 101-26-12 1 0 TCNI PO Box 784 U i-Column Liner Huntington Beac,CA 92648-07 &Legal Huntington Beach b 602 Patricia Gamino 0 _y,; 41- CU00070479 �'CWM:f 13000-Legal Noftes; $160.00 v, Pttt*�', TCN 1­1131 ()0 �t City of Huntington Beach-Planning $160.00 TI ht: `�Aacedji` ti Patty Esparza (714)374-1557 Ad Copy: NOTICE OF PUBUC HaNG BEFORE M CITY COUNCIL Of M CITY OF HUNTINGTON BEACN NOTICE IS HEREBY GIVEN that an Monday, February 6, 2012 at 6:00 PM in the City Council Chambers, 20DO'Main Street, Huntington Beach, the City Council will hold a public hearing on the following planning and zoning items: ClIAPPEAL OF PLANNING COMMISSION'S APPROVAL OF ENVIRONMENTAL IMPACT REPORT NO. 10-004 (BEACH AND ELLIS MIXED USE PRO ECT). Appellant. Mayor Don Hansen. Appl�lcont. City of Huntington Beach. Property Owner. Morrie Golcheh, Progressive Property Management.Request-To review the environmental impacts associated with the Beach and Ellis Mixed Use Project to permit the development of 105 residential units,37,000 square feet of retail space, and 483 parking spaces on 2.74 acres.The project improvements include the development of a six- story mixed use project with an internal parking structure allowing for retail along Beach Boulevard and Ellis Avenue at both the ground and second level with residential units above. Levels four through six accommodate the residential units and provide 10,500 square feet of residential open space. Additionally, 1,850 square feet of ground- level public open space is provided at the corner of Beach Blvd and Ellis Ave. The existing service sta tion, restaurant and retail uses would be demolished as a result of this project.The project is located within the Beach and Edinger Corridors Specific Plan (BECSP), adopted in March 2010. Development on the project site was included in the Notice of Preparation for the BECSP EIR and analyzed as part of the larger scope of development contemplated in the BEGSP EIR (Program EIR No. 08-008), which anticipated 120 residential units and 71,000 square feet of retail commercial including a two level health club for the subject property. As such, the analysis in Draft EIR No. 10-004 is tiered from the BECSP Program EIR where appropriate. Location- 18502-18552 Beach Blvd,2.74-acre site located at the southeast corner of Beach Boulevard and Ellis Avenue. Project Planner.Rosemary Medel NZ6 220NING TEXT AMENDMENT NO. 09-002 /—(WIRELESS COMMUNICATION FACILITIES) Applicant. City of Huntington Beach Property Owner:Not Applicable Request:To amend Section 230.96(Wireless Communication Facilities) of the Huntington Beach Zoning and Subdivision Ordinance by revising the citywide permitting and entitlement process for wireless communication facilities(e.g- call phone Anitnnas and towers)as w6ft ag tithor provisions Of the current ordinance. Locationt Citywide Project Planner:Ricky Ramos NOTICE IS HEREBY GWEN that Environmental Impact Report No. 10-004 is on file at the City of HuntiUlan Reach Planning a d Building ad proof pg-1 --- Ptinted by:0602 Pouicle Gamino Jan 19.2012,11.,48 am Sal 00A.Aftfus Mm" espemon: 11mAns IZ� Phone: Ad#34SM349 Department, 2000 Main Street and is available public inspection by contacting the Department, or telephoning(714)536-5271. NOTICE IS HEREBY GIVEN that Item #2 is categorically exempt from the provisions of the California Environmental Quality Act. NOTICE IS HEREBY GIVEN that Item#2 will require a Local Coastal Program Amendment certified by the California Coastal Commission. ON FILF— A copy of the proposed request is on file in the Planning and Building Department, 2000 Main Street, Huntington Beach, California 92648, for inspection by the public. A copy of the staff report will be available to interested parties at the City Clerk's Office on Thursday, February 2, 2012. ALL INTERESTED PERSONS are invited to attend said hearing and express opinions or submit evidence IoT or against the application as outlined above. If you challenge the City Council's action in court,you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City at, or prior to, the public hearing. If there are any further questions please call the Planning and Building Department at (714) 536-5271 and refer to the above items. Direct your written communications to the City Clerk Joan L.Flynn,City Clerk City of Huntington Beach 20DO Main Street,2nd Floor Huntington Reach,California 92648 (714)536-5227 http://huntingtonbeachca.gov/HBPublicComments/ hftp://www.huntingtonbeachca.gov/ Published Huntington Beach Independent January 26,2012 --- ad proof pg.2 --- CITY COU NCIL/REDEVELOPM ENT AGENCY PUBLIC HEARING REQUEST FORM MEETING DATE: P5-p> - Ce 1-L� W I SUBJECT: N DEPARTMENT: CONTACT NAME: PHONE: N/A YES NO Is the notice attached? Do the heading and closing of the notice reflect a hearing before the City Council and/or Redevelopment Agency? Are the date, day and time of the public hearing correct? If an appeal, is the appellant's name included in the notice? If Coastal Development Permit, does the notice include appeal language? Is there an Environmental Status to be approved by Council? N Is a map attached for publication? N Is a larger ad required? Size N Is the verification statement attached indicating the source and accuracy of the mailing list? PY-f VL-#�NNIN61 Are the applicant's name and address part of the mailing labels? Are the appellant's name and address part of the mailing labels? lf,,GoastaH4eve4opfnent-P-eFmit, is the Coastal Commission part of the mailing labels? If Coastal Development Permit, are the resident labels attached? Is Summary Report 33433 attached? (Redevelopment Agency items only) What is the minimum number of days from publication to hearing date? -T-T---t4 What is the minimum number of times to be published? c7t4-tF--- What is the specified number of days between publications? W/,A FOR ADMINISTRATION AND CITY CLERK USE ONLY Approved for public hearing Date noticed to newspaper Date published Date notices mailed 09[9/09 Lq@ 419AV 09AP @jq!jLdwoo ww Z9 x ww g�jpwjo�ap allanbilD 09[9/09�S@ AJ9AV qj!M aqjedwoo ,9/9�x,,[ps I@qel A. Patrick Munoz Heather Lenore Cindy&Jeff Busche Rutan&Tucker, LLP 16821 Phelps Lane 17041 Lowell Circle 611 Anton Blvd., Suite 1400 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Costa Mesa, CA 92626 Suzie Slope Lisa Veal Barbara Hamilton Howard 17042 Lowell Circle 3716 Montego Drive i 502 Avenida La Costa Huntington Beach, CA 92649 Huntington Beach, CA 92649 San Clemente, CA 92672 Lisa&Tony Rudy Ro—n�en Johnsen JoAnne Flory 16292 Mandalay.Circle 4152 Calhoun Drive 17122 Friml Lane Huntington Beach, CANZ649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Ana Youngsma Traci VAiite Tay Norton 17152 Berlin Lane 16032 Melody Lane 6922 Cumberland Drive Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92647 Sam Bodkins Maria Severin Jeonalyn Ashby 16608 Algonquin Street 18652 Ambrose Lane 17132 Tiffany Circle Huntington Beach, CA 92649 Huntington Beach, CA 92648 Huntington Beach, CA 92649 Jodi Keidel Julia Lucas Marina Massari nd 16682 Parlay Circle 16442 Sundancer Lane 606 22 Street Huntington Beach, CA 92649 Huntington Beach, CA 992649 Huntington Beach, CA 92648 David Maxson 1 Brandee Jones La *e Parris 16841 Phelps Lane 17092 Lynn Street Unit D 16692 Dolor&�eet 43 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA`9�-649 Lori Burrett Tiffmi Schlosser John Talbot 16107 Sherlock Lane 3986 Aladdin Drive 17561 Collins Circle Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92647 Shari Hart Judith&Cory Arendt Aaron& Susan Kweskin 4632 Via Vista Circle 16861 Phelps Lane 17182 Marina Place Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Lizzy Petrella Alexandra Papac Michelle Smith 17101 Ash Street, Unit 41 16602 Jib Circle,Unit A 15521 Eliot Circle Huntington Beach, CA 92647 Huntington Beach, CA 92649 Huntington Beach, CA 92647 Z-77�-Orl-0 label size 1"x 2 5/8"compatible with Avery ID5160/8160 (D I jj:��1,;�Dla �tiquette de format 25 mm x 67 mm compatible avec Avery 5160/8160 09[8/09�9@fJOAVOOR alq!jedwoo ww Z9 x ww 9ZIuwjoI ap @490113 09[8/09[9@iIAAV ql!m @lq!Iedwoo,,9/g Z xj azis loqel Amy Penfield Rachel Tonon Candice Byl 6100 Edinger Avenue, Unit 824 22751 El Prado #6313 24475 Sadaba Huntington Beach, CA 92647 Rancho Santa Margarita, CA 92688 Mission Viejo, CA 92692 Ashley Delany Rob Ogden Coaney Dupies 18775 Park Haven Lane 6100 Edinger Avenue,Unit 829 16692 Dolores Lane Huntington Beach, CA 92647 Huntington Beach, CA 92649 Huntington Beach, CA 92648 Michelle Hampton Alison Bartells Nicole Hampton 5602 Spa Drive 15 881 Wicklow Lane 16884 Sims Street, #4 Huntington Beach, CA 92647 Huntington Beach, CA 92647 Huntington Beach, CA 92649 Lila James i 1 Lily Shimabukuro, Michelle Levitt 16812 Pembrook Lane 3979 Humboldt Drive 5176 Tortuga Drive, #211 Huntington Beach, CA 92649 i Huntington Beach, CA 92649 Huntington Beach, CA 92649 Jennifer Burford Julie Gauger Robb Yenny Salim 4615 Via Vista Circle 16771 Green Lane,Unit D 4167 Warner Avenue, #203 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Johnny Tran Cory Higgins Chris Montang 3792 Humboldt Drive 13332 Lee Drive 16662 Bolero Lane Huntington Beach, CA 92649 Westminster, CA 92683 Huntington Beach, CA clU,4� Jennifer Polich Nicole Hoglund Cynthia Petelo 3631 Pirate Circle i 5662 Kern Drive 16912 Sims Lane, #102 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Christina Perez Gary Gochman David Murray 4901 Heil Avenue, #24A 16452 Sundancer Lane 16661 Dolores Lane,Unit C Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 James Wu Julie Anderson Lisa Dunn 4668 Olas Lane 5072 Caspian Circle 4673 Marea Drive Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 David Jaggli Draven Holland Olivia Dunn 4728 Arena Circle 16507 Caballero Drive 4673 Marea Drive Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 21-�4 09-nf��A label size 1"x 2 5/8"compatible with Avery 05160/8160 Etiquette de format 25 mm x 67 mm compatible avec Avery 05160/8160 -,Z-G"e-ce 09 l,2/09[q@ Aj9AV 09AP @q1tdwoo ww Zq x ww q�Imiol ap ajjqnbij� 09[2/09 Lg@ AJ9AV qj!M 9jq!jPdwoo,,q/g�x,, azis lgqel Kaylee Iseda Kimmy Grant Natalie Dunn 4696 Oceano Circle 4690 Madrid Way 4673 Marea Drive Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Bradley C. Weddon Autumn Whitcomb Erika Carney 17052 Baruna Lane 16351 Anita Lane 5432 Meadow Circle Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Nick Zamvakellis Melissa Basco Heather Basco 16362 Maruffa Circle 18832 Florida Street,Unit 24 16542 Blackbeard Lane, Unit 100 Huntington Beach, CA 92649 Huntington Beach, CA 92648 Huntington Beach, CA 92649 Rene Battistone Laurie Grant Robert McCandless 5121 McFadden Avenue 4690 Madrid Way 16811 Sea Witch Lane Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Kelly Lefrancois Kim Sandoval Nicole Roche 4081 Davenport Drive 16272 Tisbury Circle 4681 Pinecrest Circle Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 T7 --C-a4 Mohl Andy Coyne Christine Bouma 16801 Phelps Lane 17132 St. Andrews Lane 16421 BarrishbkCircle Huntington Beach, CA 92649 Huntington Beach, CA,9,2649 Huntington Beach, CA 92649 Arthur Camarena Christopher Roberts Sydney Roberts 17693 Brittany Lane 17212 Berlin Lane 17212 Berlin Lane Huntington Beach, CA 92647 Huntington Beach, CA 92647 Huntington Beach, CA 92647 Adam Carleta Jenni Vogel Gwe� e amn 16262 Rascal Lane 16251 Sundancer Lane 16437 Poco cle 7 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, C 2649 Joyce Zimmerman Tiffanie Rowsell LaDonna Kennedy 16951 Bolero Lane 16282 Mandalay Circle 16542 Blackbeard Lane, #100 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Mark Zimmennan Evalani Wu Helen C. Davis 16652 Coral Cay Lane 4668 Olas Lane 16302 Wildfire Circle Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 -Z� 2-1-791 09 00' label size 1"x 2 5/8"compatible with Avery 05160/8160 kicluette cle format 25 mm x 67 mm compatible avec Avery 05160/8160 09�9/09�9@ A1@AV MAP alcl!Inwoo ww Z9 x ww gz jpwjo�ap allanbiji 09�9/09 Lg@ fu@AV ql!m alq!jedwoo Z x,,�azis laqel Michelle Metherell Rubina Naj eeb Charles Dunn 16801 Kamali Drive 17132 Westport Drive 4673 Marea Circle Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Cindy Stanfield Barbara Santoyo Farnoosh Manouchehri 4172 Shorebreak Drive 5381 Bonan a Drive 5791 Woodboro Drive Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Mohsen Shaida Jacque&Robert Parker Laurie Ponce 16561 Tiber Lane 15141 Nottingham Lane 16651 Lynn Lane,Unit B Huntington Beach, CA 92649 Huntington Beach, CA 92647 Huntington Beach, CA 92649 Peggy Tracy James Jackson Van Der Mark 17831 Whitford Lane 16162 Whitecap Lane 16552 Carousel Lane Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Mike Thermos Tay Norton Ralph Bauer 16871 Bolero Lane 6922 Cumberland Drive 16511 Cotuit Circle Huntington Beach, CA 92649 Huntington Beach, CA 926417 Huntington Beach, CA 92649 Mary Busche Christina Tsimeredis Tim Branoff 4091 Morning Star Drive 4911 Seapine Circle 17191 Marina View Place Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 Jerry Rich Charles Grant James Ferlita 16505 Harbour Lane 418 1 Shorebreak Drive 4051 Morning Star Drive Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 bile Tho Verizon Wireless bile Metro PCS Attn:Mark Carney Attn: Leslie Vartanian Attn: Joe �son 15505 Sand Canyon Avenue 3 MacArthur PI ce, Sul 100 350 Commerce, Suite 200 Irvine, CA 92618 Santa Ana, 92707 Irvine, CA 92602 John Koos John Moreland AT&T Delta Group Attn: Debra Okano 1 Core Communications Group 2903-H Saturn Street 2362 McGaw Avenue 12900 Park Plaza Drive Irvine, CA 92614 Cerritos, CA 90703 Brea, CA 92821 Sprint/Nextel Dean Brown Monica Moretta Holly Castellanos Sequoia Planning Consortium Inc. Real Estate Manager 627 N. Main St. 1 Venture, Suite 200 63 91 Sprint Parkway Irvine, CA 92618 Overland Park,KS 66251 Orange, CA 92868-1103 Z7'�q-0 9-00'� label size 1"x 2 5/8"compatible with Avery 05160/8160 7:T�& 001-0-2- -a,/ biquette de format 25 mm x 67 mm compatible avec Avery 05160/8160 L4 (-P , 0/,L)0/0-, 09 1-2/09 L9@ AJGAV OGA-e alqp-eawoo ww Zq x ww g�I-emol op 9119nbi13 0qL2/09Lg@AJGAV ql!m alcip-edwoo ,e/g�x,j azis leq*el Justin Robinson Aaron Cornish Al Gamboa MMI-Titan Inc. Milestone Wireless Milestone Wireless 1750 E. Ocean Blvd,#906 25581 Indian Hill Lane,Unit G 14110 Ramona Drive Long Beach, CA 90802 Laguna Hills, CA 92653 Whittier, CA 90605 Kathleen Hill Donna Mueller Lee Riley Alston&Bird,LLP Reliant Land Services Blackdot Wireless 333 S.Hope Street, Suite 1600 1594 N. Batavia Street 27271 Las Ramblas, Suite 200 Los Angeles, CA 90071 Orange, CA 92867 Mission Viejo, CA 92691 146-167-04 Scott Longhurst Saundra Jacobs Trillium SFC Communications Inc. Timothy Crowder 5912 Bolsa Avenue, Suite 202 26012 Marguerite Pkwy,Unit H24 16391 Redlands Lane Huntington Beach, CA 92649 Mission Viejo, CA 92692 Huntington Beach, CA 92647 146-322-01 146-321-01 146-322-03 Carol J Settimo John Walter&Mache Finley Eugene R Mello 16542 Cooper Lane 6611 Abbott Drive 6591 Abbott Drive Huntington Beach, CA 92647 i Huntington Beach, CA 92647 Huntington Beach, CA 92647 146-482-08 146-322-13 146-482-04 Matthew S.Everling Adam Rodell Ronald Murray Passmore 6542 Abbott Drive 16631 Fountain Lane 16632 Dale Vista Lane Huntington Beach, CA 92647 Huntington Beach, CA 92647 Huntington Beach, CA 92647 146-482-12 146-483-09 146-483-10 William F Kettler Debbie Zentil Dianne Jo Larson 16592 Dale Vista Lane 16641 Dale Vista Lane 16631 Dale Vista Lane Huntington Beach, CA 92647 Huntington Beach, CA 92647 Huntington Beacl-4 CA 92647 146-483-16 146-483-17 146-483-18 J Donald McFarland Richard S Evans John C Anderson 6631 Mason Drive 6641 Mason Drive 6651 Mason Drive Huntington Beach, CA 92647 Huntington Beach, CA 92647 Huntington Beach, CA 92647 163-211-03 163-203-17 163-202-21 Bobbie L Jones Richard Kenyon Paul Nagel 17782 Crestmoor Lane 17781 Crestmoor Lane 5611 Helmside Drive Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 178-351-01 178-353-22 178-352-05 Paul Phantumabamrung Pickett Family Trust Carlos Ressia Jr. 4232 Branford Drive 4251 Silliman Drive 4202 Calhoun Drive Huntington Beach, CA 92649 Huntington Beach, CA 92649 Huntington Beach, CA 92649 163-213-02 155-053-29 Joe Milone Timothy Dale Wuerfel Jr. Leslie Riasanovsky NextG Networks, Inc. 17812 Whitford Lane 10145 Disney Circle 2125 Wright Avenue,#C-9 Huntington Beach, CA 92649 Huntington Beach, CA 92646 La Verne, CA 91750 label size 1"x 2 5/8"compatible with Avery 05160/8160 -09-00-;� 6,Z Via �t,quette de format 25 mm x 67 mm compatible avec Avery 05160/8160 L3 vf=:U 09�2/09�g@fJOAV39ABolq!jedwoo ww Z9 xww Hj2wjo�qpqjjqnb1j3 09�2/09l.g@fd2AV qj!m alqped woo ,S/g�x,,�azis laqel Martin L. Fineman Sarah Burbidge Sean Scully Davis Wright Tremain LLP Mackenzie&Albritton LLP Calif. Wireless Assoc. 505 Montgomery Street 220 Sansome St., 14"'Floor 800 S. Pacific Coast Hwy., 9448 San Francisco, CA 94111-6533 San Francisco, CA 94104 Redondo Beach, CA 90277 2 5 HB Chamber of Commerce Orange County Assoc.of Realtors Huntington Beach Tomorrow President Dave Stefanides President 19891 Beach Blvd. Ste. 140 25552 La Paz Road PO Box 865 Huntington Beach,CA 92648 Laguna Hills, CA 92653 Huntington Beach, CA 92648 9 6 8 Building Industry Assoc. of South Calif. ETI: Corral 100 Environmental Board Chair Attn: Elyse Sminada, Govt. Affairs Asst. Jean Kimbrell Robert Smith 17744 Sky Park Circle, Suite 170 20292 Eastwood Circle 21352 Yarmouth Lane Irvine, CA 92614 Huntington Beach, CA 92646 Huntington Beach, CA 92646 12 13 14 Rutan &Tucker, LLP Newland House Museum Historic Resources Board Chair Jeffrey M. Oderman Pres., H.B. Historical Society Barbara Haynes 611 Anton Blvd., 14th Floor 19820 Beach Blvd. 19341 Worchester Lane Costa Mesa, CA 92626-1950 Huntington Beach, CA 92648 Huntington Beach, CA 92646 25 25 40 California Coastal Commission California Coastal Commission Hearthside Homes Theresa Henry South Coast Area Office 6 Executive Circle, Suite 250 South Coast Area Office 200 Oceangate, 1 Oth Floor Irvine, CA 92614 200,Oceangate, 10th Floor Long Beach, CA 92802-4302 Long Beach, CA 92802-4302 33 29 30 Fountain Valley Elem. School Dist. HB City Elementary School Dist. HB Union High School District Marc Ecker Kathy Kessler, Superintendent Stephen Ritter 10055 Slater Avenue 20451 Craimer Lane 5832 Bolsa Avenue Fountain Valley, CA 92708 Huntington Beach, CA 92648 Huntington Beach, CA 92649 30 31 32 HB City Elementary School Dist. Ocean View Elem. School Dist. Westminster School District David Perry 1 Attn: Cindy Pulfer,Admin. Services Clark Hampton 20451 Craimer Lane 17200 Pinehurst Lane 14121 Cedarwood Avenue Huntington Beach,CA 92648 Huntington Beach, CA 92647 Westminster, CA 92683 f-t-,e7' 4-1 R,,11'1 P3 Oc-&�&VV AV4—= PLA Kfj-j 1,�C,-rr 111 q-V I I P-V t Nil—=, I 2�771�- label size 1 x 2 5/8"compatible with Avery 05160/8160 -2--t?6 01 0-Z- biq uette de f ormat 25 m m x 67 m m co mpatib le avec Avery 05160/8160 (0 C, LP COMMUNICATIONS RECEIVED REGARDING AGENDA ITEM: ZONING TEXT AMENDMENT NO. 09-002 (WIRELESS COMMUNICATION FACILITIES) Esearza, Pal� From: Flynn, Joan Sent: Sunday, January 29, 2012 1:25 PIVI To: Esparza, Patty; Lugar, Robin Subject: Fw: Zoning Text Amendment No. 09-002 (Wireless Communication Facilities) Attachments: Letter to CC re Zoning Text Amend ment—sig ned.docx Joan L. Flynn, CIVIC Huntington Beach City Clerk From: Gay Infanti [mailto:ginfanti@verizon.net] Sent: Sunday, January 29, 2012 01:14 PM To: Hansen, Don; Dwyer, Devin; Boardman, Connie; Bohr, Keith; Carchio, Joe; Harper, Matthew; Shaw, Joe; Flynn, Joan Subject: Zoning Text Amendment No. 09-002 (Wireless Communication Facilities) Ms.Joan Flynn, Honorable Major, and Members of the City Council: Attached please find our letter containing recommendations for additional changes to Zoning Text Amendment No. 09- 002 (Wireless Communication Facilities),which we believe are necessary to strengthen Section 230.96 of the zoning ordinance and provide the City increased protections and discretion in decisions concerning wireless telecommunication facility permit applications. We hope you will review these recommendations in preparation for the upcoming public hearing scheduled for Monday, February 6 1h, and take them into consideration prior to approving the zoning text amendment. Thank you for your attention to this matter. Gay and Mark Infant January 30,2012 Huntington Beach City Council C/o Joan L. Flynn, City Clerk City of Huntington Beach 2000 Main Street,2 nd Floor Huntington Beach,CA 92648 Re:Zoning Text Amendment 09-002,Wireless Communication Facilities Honorable Mayor and Members of the City Council: We are writing to urge you to consider our recommendations for additional changes to Zoning Text Amendment (ZTA)09-002,Wireless Communications Facilities, before you approve it. ZTA 09-002 should be written to protect, as completely as possible, Huntington Beach's right to prevent the installation of wireless communication facilities (WCF),especially when unjustified,in residential and other areas of Huntington Beach where they would negatively impact HB citizens or the environment. This zoning ordinance must include all of the provisions required to deny wireless permits when necessary to prevent negative impacts. While we support the effort to revise the zoning ordinance to ensure optimal placement of wireless facilities in HB while minimizing their negative impact on our neighborhoods, public spaces, and environmentally sensitive areas we believe additional changes are necessary to protect HB residents, help prevent loss of residential property values, protect the environment,and maintain the quality of life in HB. Our major concerns with the ZTA are the elimination of the following existing provisions,which we believe weakens the zoning ordinance and makes HB more vulnerable to wireless communication providers and to the negative impacts their WCFs would bring to our city. • The elimination of the requirement to place WCFs in non-residential areas • The elimination of the requirements for WCF applicants to justify need based on a significant gap in coverage, investigate alternative locations,and demonstrate a proposed location is least obtrusive We believe specific changes to sections of the ZTA are required to re-insert needed protections,and ensure the ZTA can meet its intended objectives. Additional changes,which are included in our recommendations below,are needed to clarify and strengthen the zoning ordinance to protect HB and its citizens. Please consider the following recommendations before approving Zoning Text Amendment 09-002. • Retain the original wording in Section A, Purpose,which says W/L communications are encouraged,while "preventing visual clutter by locating WCFs outside of residential zones"and further states that"all WCFs will comply with these regulations with regard to their location." With the elimination of this wording, WCFs will be allowed in residential neighborhoods where they where they will have a significant detrimental impact on residential property values, up to 20%according to a local realtor and to the Appraisal Institute,assuming that a home adjacent to a cell phone tower is saleable. • The ZTA increases the Director's authority to grant wireless permits without public notice or hearing. The discretionary authority of the Director to determine whether a WC project can proceed with only a wireless permit should be eliminated from the ZTA. Wireless permits do not require either public notice or a public hearing,so affected property owners will not likely learn of it until the WCF is built—too late to appeal the Director's decision to the Planning Commission. The ordinance should require that all projects proposed in or adjacent to residential neighborhoods or environmentally sensitive areas require a conditional use permit(CUP)or,alternatively,that decisions to grant wireless permits in lieu of CUPs require notification to all affected property owners in the neighborhood. Reinsert the requirement for WCF providers to prove the need for a proposed WCF and to establish the proposed WCF location is least obtrusive,after consideration of alternative locations. The removal of these provisions from the zoning ordinance eliminates much of the discretion that HB would otherwise have to deny WCF permits to providers who may not truly need them to eliminate a significant gap in service or who have failed to consider more suitable, less obtrusive locations. In MetroPCS Inc.v.the City of San Francisco,the court found that it must take applicable state and location regulations as it finds them and evaluate a decision's evidentiary support relative to those regulations. In T-Mobile USA v.the City of Anacortes,the Court reiterated that a city may deny a wireless permit if the applicant has not proven a significant gap in service or demonstrated the proposed site is the least obtrusive,as long as these requirements are included in the local zoning ordinance WCF providers are required by zoning text amendment 09-002 to demonstrate that a significant gap in coverage exists only in the case of a Denial of Effective Service Appeal. However,to prevent the installation of unnecessary WCFs that would negatively impact HB citizens or their environment,as well as to prevent HB Citizens from having to file timely and costly appeals, providers should be obligated to demonstrate their needs up front in the application process. The process currently established in the zoning text amendment for demonstrating a significant gap in a Denial of Effective Service Appeal is a good one. The zoning ordinance be revised to specify this process be used by providers when initially applying for permit(s)to install a WCF. The requirement to co-locate new WCFs with existing facilities located within 2500 feet should be revised to require co-location of proposed new WCFs within 5000 feet of existing WCFs. Recent applications for WCFs proposed in HB indicate projected transmission ranges in excess of a mile in any direction. Therefore,co-location with existing facilities could be increased from within 2500 to within 5000 feet to prevent HB from being overrun by cell towers. Allowing placement of cell towers every 2500 feet could result in a cell tower at every major intersection in our city(based on the city's grid). Providers are not necessarily seeking to construct cell towers to improve mobile phone service to Huntington Beach residents. Excess WCF capacity is highly desirable to these providers,some of whom are actively promoting their capacity, and making significant revenues from selling it to other companies. They are,therefore,very likely to continue constructing WCFs in H13 if allowed,whether or not they are needed to improve service to H13 residents,as long as this revenue stream is lucrative,and they will do so at the expense of Huntington Beach residents. To avoid potential negative aesthetic impacts of WCFs on H13 neighborhoods,including visual blight and diminution of property value,the ordinance should require that any WCF placed in or near a residential area be"completely stealth",that is completely screened from view. So-called "stealth palm trees" (monopalms)and monopines are not realistic looking and hardly stealthy given their typical size and appendages. In addition,when making a determination of compatibility,the ordinance should require that consideration be given to the placement of all other utilities in the neighborhood. For example,an above-ground WCF is incompatible in a neighborhood where all other utilities are buried. Since property values are significantly affected for homes within 1200 feet or less of a WCF,the ordinance should require that notices of public hearings to approve wireless/conditional use permits for WCFs be given to all property owners within a 1200 foot radius. These recommended changes,when incorporated into the zoning ordinance,will ensure that HB residents are better protected from the numerous negative impacts on their environment,their neighborhoods,their property values,and their quality of life,which would result from indiscriminate placement of WCFs in our City's residential neighborhoods and environmentally sensitive areas. Given the large number of wireless communication facilities already in existence in Huntington Beach, many proposed WCFs that could be approved for future construction would likely be unnecessary for the improvement of HB residents'wireless communications service. We urge you to consider these recommendations and revise Zoning Text Amendment 09-002 accordingly, before approving it. Thank you, Gay Infanti Mark Infanti Esearza, Pa!!y From: Surf City Pipeline [noreply@user.govoutreach.com] Sent: Monday, January 30, 2012 1:23 PM To: CITY COUNCIL; agendaalerts@surfcity-hb.org Subject: Surf City Pipeline: Comment on an Agenda Item (notification) Request# 10353 from the Government Outreach System has been assigned to Johanna Stephenson. Request type: Comment Request area: City Council - Agenda& Public Hearing Comments Citizen name: Dana Drake Description: Please have (1) proof of gap in coverage, (2)proof that the subject location is the best choice and (3) evidence of research into alternate sites in the City Ordinances regarding cell towers. Many thanks for a good job. We appreciate it. Dana Drake, attorney Expected Close Date: 01/31/2012 Click here to access the request Note: This message is for notification purposes only. Please do not reply to this email. Email replies are not monitored and will be ignored. '115""UPPLEMENTAL Esearza, Patty COMMUNICATION From: Surf City Pipeline [noreply@user.govoutreach.com] D9te: eg 16 1d6 Sent: Wednesday, February 01, 2012 11:19 AM To: CITY COUNCIL; agendaalerts@surfcity-hb.org Subject: Surf City Pipeline: Comment on an Agenda Item (nofterl0ftftm 140.,-.Zz Request# 10370 from the Government Outreach System has been assigned to Johanna Stephenson. Request type: Comment Request area: City Council - Agenda& Public Hearing Comments Citizen name: Peggy Tracy Description: Honorable Mayor and City Council Members, Please consider these issues before voting on Zoning Text Amendment No. 09-002, Wireless Communication Facilities, which will strongly affect the general well-being and property values of Huntington Beach residents. RETAIN Zoning Ordinance requirements for wireless provider's proof of 1) significant gap in coverage; 2) least obtrusive location; and 3) alternate location research. - When City ordinances contain regulations governing WCFs, City decisions based on those regulations are upheld by Federal courts. (Sprint PCS v Palos Verdes Estates) • The requirements should be submitted before an application is considered 'complete'. • If these current ZO requirements are deleted, unneeded WCFs that meet Design Review and Co-loeation requirements would be approved. • The burden of monitoring wireless providers would fall on HB residents. • The proposed ZTA would grant permits without these current requirements; appeals would require these proofs; permits would be revoked if providers could not prove what was NOT previously required to grant permits ('significant gap', etc.)... Result: more lawsuits. - Telecommunications Act(TCA) does not guarantee 'seamless' wireless coverage free of small 'dead spots' (Sprint PCS v Palos Verdes Estates). Least Intrusive Means Standard (T-Mobile v Anacortes) • Provider has burden of showing lack of available technologically feasible alternatives. • Provider must show that the manner to fill gap in coverage is least intrusive. • Provider must consider less sensitive sites, alternate designs, co-location on existing structures. Planning Commission Meeting Modifications to ZTA (December 13, 2011) - Hr:Min 2:14-Mr. Farley proposed/PC approved that"any wireless facility within 1200 feet of residential" zoning requires a ZA CUP. o <therefore, Public Notice and Public Hearing> - Hr:Min 2:16-Mr. Bixby proposed/PC approved to extend the co-location requirement for new ground mounted WCFs from 1,000 to 2,500 feet when feasible. ,T� �, s should apply to ALL WCFs to avoid new facilities being proposed for every roof and wall within that 2,500 foot co-location requirement. HtNin 0:;53 —Mr. Bixby asked about the ZTA E4 Design Review section and if there was an,4any'/'all' 'typo'. (Design Review is not required for 'Director approved' WCFs that' ave any,appurtenant facilities and equipment located underground or within an existing building or existing enclosure.") o Please request that the word "all" be substituted for"any" for clarification and to avoid loopholes. PLEASE WRITE THE ORDINANCES ONCE AND FOR ALL TO PROTECT OUR BEAUTIFUL CITY. DON'T MAKE IT EASIER FOR TOWERS TO BE PUT WHERE THEY DO NOT BELONG!!!!! Sincerely, Margaret Tracy Expected Close Date: 02/02/2012 Click here to access the request Note: This message is for notification purposes only. Please do not reply to this email. Email replies are not monitored and will be ignored. Esearza, Pa!!X From: Surf City Pipeline [noreply@user.govoutreach.com] Sent: Sunday, February 05, 2012 10:34 PIVI To: CITY COUNCIL; agendaalerts@surfcity-hb.org Subject: Surf City Pipeline: Comment on an Agenda Item (notification) Request# 10401 from the Government Outreach System has been assigned to Johanna Stephenson. Request type: Question Request area: City Council - Agenda& Public Hearing Comments Citizen name: John Anderson Description: Dear Council Members Once again on FEB. 6, 2012 cell tower regulations will be discussed again. How many times do we have go through this? I am against making permits easier. Gaps in coverage should still be proven, and there should be no towers in parks, or near schools, and not in residential areas. And keep them out of the wetlands, too. Expected Close Date: 02/06/2012 Click here to access the request Note: This message is for notification purposes only. Please do not reply to this email. Email replies are not -monitored and will be ignored. SUPPLEMENTAL COMMUNICATION Meefir,g Date: Agenda ftem Esparza, Paa From: Flynn, Joan Sent: Sunday, February 05, 2012 10:56 AM To: Esparza, Patty; Lugar, Robin Subject: Fw: Zoning Text Amendment 09-002 (Wireless Communication Facilities) SUPPLEMENTAL COMMUNICATION Joan L. Flynn, CIVIC Me.sting Date: Huntington Beach City Clerk From: Gay Infanti [mailto:ginfanti@verizon.net] Sent: Sunday, February 05, 2012 10:20 AM To. Hansen, Don; Dwyer, Devin; Boardman, Connie; Bohr, Keith; Carchio, Joe; Harper, Matthew; Shaw, Joe; Flynn, Joan Cc: Fikes, Cathy; larsondj@verizon.net <larsondj@verizon.net>; 'Chacon, Shelley' <shelleyhb@socal.rr.com> Subject: RE: Zoning Text Amendment 09-002 (Wireless Communication Facilities) Ms. Joan Flynn, Honorable Mayor, and Members of the City Council, After reading through the staff report and the revised version of the ZTA based on Planning Commission Recommendations, I've concluded that the HBZSO must retain the requirements for WCF permit applicants to demonstrate a significant gap in coverage, investigate feasible alternatives, and select the least obtrusive site to fill the coverage gap. The elimination of these requirements, for which the Planning Department wants to substitute the Denial of Effective Service Appeal process, will also eliminate an aggrieved party's ability to appeal a decision to grant a permit because an applicant failed to meet them. Only if the applicant is denied a permit is it likely to assert Federal Preemption and file the Denial of Effective Service Appeal. Otherwise, there is no provision in the ZTA for an appellant to question either the need or the placement of a WCF and compel the applicant to provide the evidence that an appellant would need to establish that a significant gap in coverage does not exist, or that the least obtrusive site was not selected to fill a demonstrated gap after evaluation of feasible alternatives. A Denial of Effective Service Appeal, which is considered concurrently with wireless or conditional use permit appeal before the Planning Commission, would only be filed by an applicant who is denied a permit by the City. If, however, the City approves the permit, and another (aggrieved) party, e.g., a 1-113 resident, appeals the decision to the planning commission,there is no basis for the appellant to cite a lack of gap in service or failure to select the least obtrusive site as a reason for the appeal, since the applicant is no longer required to supply that information when seeking a permit. The Denial of Effective Service appeal process would not come into play at all because, in this case, there would be no reason for the applicant to file one of these appeals. In his decision re T-Mobile USA v. Anacortes, Federal District Court Judge Callahan stated that when enacting the Federal Telecommunications Act, Congress was determined to preserve the authority of State and local governments over zoning and land use matters except in the limited circumstances where they would prohibit or have the effect of prohibiting the provision of wireless services. Judge Callahan also stated that the State or local government would have to provide evidence to support the denial of a special use permit under applicable State and local laws. Thus, for HB to defend itself from a charge of preemption of the Federal Telecommunications Act,the HBZSO must include the gap in service, consideration of alternative sites, and least obtrusive location requirements in order to preserve 1-113's ability to deny a wireless or conditional use permit on any of these bases. Thank you, Gay Infanti 2 Esgarza, Paa From: Flynn, Joan Sent: Wednesday, February 01, 2012 6:23 AM To: Esparza, Patty Subject: Fw: ZTA 09-002 - Modification Requests-CC Meeting - Feb 6, 2012 5UPPLEMENTAL coMMUNICATION Joan L. Flynn, CMC _ii Z1_ 0— Huntington Beach City Clerk DM9 From: larsondj@verizon.net [mailto:larsondj@verizon.net] Agenda bm No. 7_ Sent: Tuesday, January 31, 2012 10:44 PM To: CITY COUNCIL Cc: Flynn, Joan; Ramos, Ricky Subject: ZTA 09-002 - Modification Requests - CC Meeting - Feb 6, 2012 Honorable Mayor and City Council Members, Please consider these issues before voting on Zoning Text Amendment No. 09-002, Wireless Communication Facilities, which will strongly affect the general well-being and property values of Huntington Beach residents. RETAIN Zoning Ordinance requirements for wireless provider's proof of 1)significant gap in coverage; 2) least obtrusive location; and 3) alternate location research. • When City ordinances contain regulations governing WCFs, City decisions based on those regulations are upheld by Federal courts. (Sprint PCS v Palos Verdes Estates) • The requirements should be submitted before an application is considered 'complete'. • If these current ZO requirements are deleted, unneeded WCFs that meet Design Review and Co-location requirements would be approved. • The burden of monitoring wireless providers would fall on HB residents. • The proposed ZTA would grant permits without these current requirements; appeals would require these proofs; permits would be revoked if providers could not prove what was NOT previously reguired to-grant permits ('significant gap', etc.)... Result: more lawsuits. • Telecommunications Act(TCA)does not guarantee 'seamless' wireless coverage free of small 'dead spots' (Sprint PCS v Palos Verdes Estates). Least Intrusive Means Standard (T-Mobile v Anacortes) • Provider has burden of showing lack of available technologically feasible alternatives. • Provider must show that the manner to fill gap in coverage is least intrusive. Provider must consider less sensitive sites, alternate designs, co-location on existing structures. Planning Commission Meeting Modifications to ZTA (December 13, 2011) Hr:Min 2:14—Mr. Farley proposed/PC approved that"any wireless facility within 1200 feet of residential" zoning requires a ZA CUP. o <therefore, Public Notice and Public Hearing> Hr:Min 2:16—Mr. Bixby proposed/PC approved to extend the co-location requirement for new ground mounted WCFs from 1,000 to 2,500 feet when feasible. o This should apply to ALL WCFs to avoid new facilities being proposed for every roof and wall within that 2,500 foot co-location requirement. Hr:Min 0:53—Mr. Bixby asked about the ZTA E4 Design Review section and if there was an 'anyTall' 'typo'. (Design Review is not required for'Director approved'WCFs that"have any appurtenant facilities and equipment located underground or within an existing building or existing enclosure.") o Please request that the word "all" be substituted for"any"for clarification and to avoid loopholes. Thank you. Respectfully, Dianne Larson 2 Esparza, Paa From: Flynn, Joan Sent: Sunday, February 05, 2012 10:33 PM To: Esparza, Patty; Lugar, Robin Subject: Fw: CC Mtg -ZTA 09-002, Wireless Communication Facilities- Feb 6, 2012 Attachments: Larson—ZTA-09-002-20120206.pptx Joan L. Flynn, CMC Huntington Beach City Clerk -------—-- ...... From: larsondj@verizon.net [mailto:larsondj@verizon.net] Sent: Sunday, February 05, 2012 09:14 PM To: Flynn, loan; Ramos, Ricky; CITY COUNCIL Cc: Fikes, Cathy Subject: CC Mtg - ZTA 09-002, Wireless Communication Facilities - Feb 6, 2012 Hello Ms. Flynn, Honorable Mayor, Councilmembers,and Mr. Ramos, Attached is a Powerpoint document for the City Council meeting on Monday, Feb 6. Please include it in the Public Record documents ..)r this issue. Thank you. Dianne Larson SUPPLEMENTAL COMMUNICATION Mmedng Date: Agenda Item No.__ zz 2/6/2012 Zoning Text Amendment 09-002 Wireless Cell Facilities Huntington Beach City Council Meeting February 6, 2012 Dianne Larson Federal Court Rulings Sprint PCS v Palos Verdes Estates When City ordinances contain regulations governing WCFs, City decisions based on those regulations are upheld by Federal courts. — Proof of 'significant' gap in coverage — Least intrusive/obtrusive location — Alternate location evaluation Telecommunications Act (TCA) does not guarantee 'seamless' wireless coverage free of small 'dead spots' 2/6/2012 Federal Court Rulings T-Mobile v Anacortes e Least Intrusive Means Standard Provider has the burden to: — show lack of available alternatives. — show manner/location is least intrusive. — consider less sensitive sites, alternate designs, and co-location on existing structures. Congress — determined to preserve State and local authority over zoning & land use. Proof of Need/Location for WCF Permits Permit Requirements Current ZO Proposed ZTA Significant gap in service Yes No Least obtrusive location Yes No Alternate location evaluation Yes No Basis for Appeal Current ZO Proposed ZTA Significant gap in service Yes Provider Only Least obtrusive location Yes --------- Alternate location evaluation Yes Provider Only 2 2/6/2012 TCA Section 704 = Proposed H13 ZTA Health Effects = Gap / Location • Proposed ZTA would have the same effect as TCA Section 704 — • You could talk about — Health Effects of RF Radiation — Gap in Service, Least Obtrusive Location, and Alternate Locations • But none of these would be considered when the City is approving/denying WCF permits. • Keep these protective requirements in our ZO! Co-location — when feasible Requirements Staff PC Ground mounted only Yes Yes Distance from any existing 1,000 ft 2,500 ft wireless antennas * Why not ALL WCF types—when feasible? Potential Results WCFs per linear mile 5.28 2.11 WCFs per square mile 27.88 4.46 Does HB really need 27 WCF sites per square mile? WCF coverage exceeds 1/2 mile radius (T-Mobile propagation maps) Can HB legally deny unneede WCFs without a 'gap in coverage'ZO? 3 2/6/2012 CUP and WP Permits Permit Requirements CUP WIP Approval ZA Director Public Notification Yes—500 ft No Public Hearing Yes No Design Review Yes Sometimes Results Public Awareness SurpriseH Ha rbou r View Park Landmark Liquor PC proposes CUPs for WCFs within 1,200ft of residential ZTA Approvals WCF Categor Approval Dggo +10 ft Ht Ground mounted CUP -------- Permit Roof/wall mounted WP Stealth Automatic Co-location WP Stealth Automatic Modification WP Stealth Automatic PC proposes CUPs for WCFs within 1,200ft of residential 4 2/6/2012 CUPs within 1,200 ft Residential • Property values drop within 1,200 ft of WCFs. • Require CUPs for any WCFs 1,200 ft of residential. • Increase notification distance to 1,200 ft (radius). • All residents should be allowed to voice their concerns before WCF applications are considered. • Increase application fee to offset costs. • Increase notification period to 3-4 weeks. • Wireless providers have months to prepare. • Residents should also have time to prepare. Additiorial 10 ft Height Over ZO Reguieernent�- 'Current ZTA I Approval CUP Automatic Public Notification Yes—500 ft No Public Hearing Yes No Results PublicAwareness Surprise!! CUIVIC 5 2/6/2012 Cumulative RF Radiation Totals How many WCF antennas on this building? At Huntington Beach HS across the street? • Each antenna is emitting RF radiation. • What is the cumulative total of RF radiation you are exposed to all day, every day? • Is this accumulation considered by HB ZO? • SCE PSA: minimize exposure whenever possible. • Mission Viejo requires measurement and mitigation if cumulative RF total is too high. http://cityofmissionviejo.org/CommunityDevelopment/ Wireless Telecommunication Facility Application Submittal Guidelines Retain Local Control of WCFs • Do not give up control by removing ZO reqmts. • Require proof of significant gap in service, least obtrusive location, alternate locations. • Extend co-location distance to 21500 feet. • Require CUPs for WCFs within 1,200 ft residential. • Increase notification distance to 1,200 ft. • Increase notification period to 3-4 weeks. • Require CUPs for additional 10 ft height; do not grant it automatically for WPs. • Add cumulative RF radiation measurement and mitigation procedures. 6 February 6, 2012 City Council City of Huntington Beach RECEM."D FROW- AS,�IP'U -IC RECORD FOR CCW�N OF IC MEETING C/o Ricky Ramos, Senior Planner City of Huntington Beach CITY CLERK OFFICE 2000 Main St., 4th Floor JOAN L FLYNN,CITY CLERK Huntington Beach, CA 92648 Re: Zoning Text Amendment No. 09-002 Legislative Draft(August 2011) De�r Honorable Mayor and Members of the City Council, NextG Networks of California (NextG") hereby submits this letter protesting the proposed Zoning Text Amendment No. 09-002. NextG would like to incorporate into the administrative record, by reference, the arguments it submitted in its letter to the City on September 12, 2011, from Joe Milone, Director of Public Relations to Ricky Ramos, Senior Planner. NextG and other wireless proponents identified overly broad statements and vagueness in the Ordinance as well as conflicts with applicable federal and state law. NextG further protests the City Attorney's election to disregard comments made by wireless industry that would have addressed many of the deficiencies in the Ordinance. Lastly, NextG submits additional comments below concerning ordinance provisions that have been added while being routed through the Planning Commission. The proposed ordinance requires collocation for wireless facilities that are to be located within 2,500- feet of an existing wireless facility. This requirement effectively prohibits NextG, as well as other DAS providers, from deploying within the City. DAS technology operates on very low power and therefore provides limited coverage (approximately 1,500 to 2,500-feet). If required to comply with this proposed requirement NextG would be unable to achieve its coverage objectives. There are additional legal issues raised by requiring public utilities with rights to the public right-of-way to have to collocate on private property. NextG recommends that the Ordinance be written to allow some flexibility so that Applicants can prove the technological inability of limitation of complying with the proposed wireless ordinance. Thank you for the opportunity to comment. If you have any questions, please do not hesitate to call me at (281) 772-6070. NextG looks forward to working with the City to resolve our differences and to providing the public with least obtrusive, most technologically advance wireless networks. Very truly yours, NEXTG NETWORKS OF California, INC. Joe Milone P,;=r- 6 L-/xTr--- C-C7>0 -Z4 (f 1 -2— Shelley Chacon, M.D. Presentation to City Council 2/6/12 Re: Wireless Communication Facility Zoning Text Amendment I am concerned about the proximity of wireless facilities to residences and am only asking for a law that promotes prudent placement of future wireless facilities, which CAN be defended in the courts. While I think this was the INTENTION of this revision I do not think it is correctly represented by the staff s summaries and instead of beefing up the ordinance actually waters it down because of technicalities. I urge you TO NOT VOTE either way tonight but instead move to reconsider this at a later date when you each personally can reread the actual ordinance with respect to the presentations given tonight and make appropriate changes. I resent the implication that we are against cell tower placements, as we of course also want good cell coverage. But they CAN be placed in a manner protecting the citizens from undo burdens and still meet this goal and the zoning ordinance can require this legally and defensibly. In this ordinance any noncontroversial application or any application that goes unnoticed by the public could avoid having to prove a gap in service. This gives the director increased authority, thereby opening up the city to future unforeseen lawsuits. I propose that the applicant should have to pay for an independent study to prove a gap in coverage IF it is requested by PROPERILY notified, nearby residents. By these criteria most of the administratively approved sites of the past would NOT have to have an independent study, only controversial sites. This gives the city a good and defensible reason to turn down a permit that is too obtrusive to a neighborhood. For instance, take the recent Springdale pump station site. I know that this would likely have been administratively approved if it hadn't needed a CUP for height issues. Several people in the planning dept said that the site was"in the boonies"and no problem. Only later when the residents were notified did the city learn about the specific issues to this site. I don't think this was malicious just a lack of specific information. The T-Mobile coverage map for that area today shows"excellent 4G coverage". But the tower was supposedly needed to fill a"gap in service". So one of these statements was untrue. Either T-Mobile was lying to potential customers that they have good coverage or to us saying there are gaps that need to be covered. The only way to see which was true is with an independent study that the applicant should fund, especially in a case like this where there is conflicting data given by their own company. This is NOT onerous to the corporation. A 20-year lease is 240 months of income a going rate of $2500/mo for a cell tower lease. A $5000 independent study is 2 months/240 months,which is less than 1%. The company that will use the wireless facility for profit at the expense of the homeowner's decrease in property values should fund the independent study. The residents of Huntington Beach whose homes are impacted by noise, decreased property values and aesthetics should not have to pay this. I argue that the companies would claim less"gaps"knowing that these would be independently checked. According to successful appeals to the 1996 Federal Telecommunications Act,the City has the right to(AND SHOULD)make sure that there is lack of coverage with serious, independent analysis, that the placement is the least intrusive to the community and that there is no other better feasible location available. It is theirjob to be doing what is best for the community and it's citizens and looking out for quality of life in Huntington Beach. Please carefully consider the points brought up tonight by the other speakers (Infanti's and Larson) and make this an excellent zoning ordinance by deferring the vote and rewriting a few but important loophole sections. Ordinance No. 3934 A decision of the Director to grant a Wireless Permit shall become final ten (10) days following the date of the decision unless an appeal to the Planning Commission is filed as provided in Chapter 248 of the Huntington Beach Zoning and Subdivision Ordinance (HBZSO). The Director shall issue findings of approval that the Facility meets the above crite-�/iaanrd is not a detriment to the health, safety and welfare of the community. 3. Zonin Administrator Approval. In the event the Director determines that '/e applicant does not meet the requirements for Director approval of a Wireless Permit hen the applicant shall apply for a Conditional Use Permit (CUP)to the Zoning 4 ministrator pursuant to Chapter 241 of the HBZSO. Notwithstanding any other provisions of the HBZSO, any new ground or utility mounted wireless facilities shall �e'�required to obtain a CUP. CUP applications shall also include the same information required under subsection E.1. // The Zoning Administrator may require, as a condition of appro;Val of the CUP that the applicant minimize significant adverse impacts to the commuyi1ty and public visual resources by incorporating one or more of the following into,'project design and construction: a. Completely Stealth installations; b. Stealth Techniques; c. Co-location and locating Facilities within existing building envelopes; d. Colorization or landscaping to minimize visual prominence; and/or e. Removal or replacement of Facilities that are obsolete. Further conditions of approval of a facility CUP may be imposed as provided in Chapter 241 of the HBZSO. The Zoning Adiniiiistrator's decision may be appealed to the Planning Commission in accordance4vith Chapter 248 of the HBZSO. 4. Design Review. Design reviewshall be required for arfy Wireless Communication Facilities pursuant to the HBZS'O as well as those located on public right-of-way and on or within 300 feet of a residentiA district or use in the City. Notwithstanding any oth�. r�rovisions of the HBZSO, design review is not required for Wireless Communicatiofi Facilities that may be approve by the Director pursuant to subsection E.2 (Director Approval) above and hav�oappurtenant facilities and equipment located ura/derground or within an existing—building or existing enclosure. F. Applicant May Assept/Federal Preemption At Time of Appeal To Planning Commission. I. If the decisio, on the Wireless Permit or Conditional Use Permit is appealed (either by applicant or aggrieved party)to the Planning Commission, the Applicant may assert that Feder Law preempts the City from denying the application because denial would effectiv y prohibit Wireless Service. The applicant shall pay a Denial of Effective Servic appeal fee in an amount to be established by City Council Resolution, which amo, nt shall be the estimated cost for the City to retain an independent, qualified co ultant to evaluate any technical aspect of a proposed Wireless Communications 09-2009.002/73032 5 P tinW 06M cla Garnino by Wr 6,10112,10:35 am Salesperson: nano Phone.- Ad 348=40 17 0"' 14)536-5227 i� 4itb 03-15-12 Izef I x I ill 810 -d 03-15-12 City Of Huntington Beach(Parent) id=ff' I I UU TMInch' PO Box 784 Huntington Beat,CA 92648 Beach r &Legal Huntington 0602 Patricia Gamino CU00070479 %ul 13UUO-Legal Notices & zo P W-1 TCN HBI $U-00 u! $88.00 Patty Esparza (714)374-1657 City Of Huntington Beach er i,-_777; _2 Ad Copy: CITY Of HUNTINGTON BEACH LIGALHOTICI ORDINANCE NO,3934 Adopted by the City Comil on MARCH 5,2012 "AN ORDINANCE Of THE CITY OF HUNTINGTON BEACH AMENDING SEC- TION 230.96 OF THE HUNTINGTON BEACH ZONING AND SUBDIVI- SION ORDINANCE RE- LATING TO WIRELESS COMMUNICATION FACILITIES." SYNOPSIS: STAFF RECOMMENDED CITY COUNCIL APPROVE ZONING TEXT AMEND- MENT NO. 09_002 BY ADOPTING ORDINANCE NO, 3934 BASED UPON THE FOLLOWING: 1- IT WILL ESTABLISH THE CITYmS DESIRED APPROVAL PROCESS AND REQUIREMENTS FOR WIRELESS COM- MUNICATiON FACILITIES (WCF)s ALLOWING FOR INCREASED PUBLIS PARTICIPATION AND NOTIFICATION. 2� IT WILL CONTINUE TO ALLOW WCFs THROLIOUT MOST OF THE CITY WHILE PROTECTING THE COMMUNITYRIS GENER- AL WELFARE AND QUALITY OF LIFE THROUGH THE NEW PERMITTING AND ENTI- TLEMENT PROCESS WHICH NOW REQUIRES A CUP FOR ALL GROUND AND UTILITY MOUNTED WCFs REGARDLESS OF LOCATION AND DESIGN. 1 IT WILL MAKE THE REVIEW OF WCFs CON- SISTENT WITH THAT OF OTHER PROJECTS BY FOCUSING ON TRADI- TIONAL CITY PLANNING CONCERNS SUCH AS AESTHETICS, LAND USE COMPATIBILITY, AND CODE COMPLIANCE --- ad proof pg.1 --- 7 4 Printed br.0602 Patricia Garrilno Mar6,201Z 10:36am A���'fghjj" �4' Salesperson: Phone: Ad NOT ON NEED BASED ON A GAP IN SERVICE. 4, IT WILL PROPERTY REQUIRE THE GAP IN SERVICE AND LEAST OBTRUSIVE LOCATION REVIEW BY AN EXPERT CONSULTANT ONLY IN CASES WHEN THE AP- PLICANT ASSERTS FED- ERAL LAW PREEMPTION OF THE CITYMS DENIAL OF A WCF. 5. THE DESIGN REVIEW REQUIREMENTS WILL BE CONSISTENT WITH EXI- WTING PROVISIONS ON THE HBZSO AND PRO- VIDE THE CITY GREATER AESTHETIC CONTROL. PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting held Match 5, 2012 by the following roll call vote: AYES: Dwyer, Hansen, Carchio,Bohr NOES: Shaw, Harper, Boardman ABSTAIN:None ABSENT-None THE FULL TEXT OF THE ORDINANCE IS AVAIL- ABLE IN THE CITY CLIRK'S OFFICE. This ordinance is ef- fective 30 days after adoption. CITY OF HUNTINGTON BEACH 2000 MAIN STREET HUNTINGTON REACH, CA 92648 714-536-5227 JOAN L.FLYNN,CITY CLERK Published H.S.Indepen- dent March 15,2012 --- ad proof pg.2 ---