HomeMy WebLinkAboutAmend City Council Meeting Minutes dated February 7, 2011 /Q 'j- v e- �J,�t
C11�,
Council/Agency Meeting Held:
Deferred/Continued to:
N Appr ved ❑ Conditionally Approved ❑ Denied ity ler ' Sign re
Council Meeting Date: April 18, 2011 Departme ID Number: CK 11-003
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Joan L. Flynn, CIVIC, City Clerk
PREPARED BY: Joan L. Flynn, CIVIC, City Clerk
SUBJECT: Request to amend City Council Meeting Minutes dated February 7,
2011
Statement of Issue: The City Clerk's Office has received a written request by the City
Attorney to amend the City Council minutes dated February 7, 2011. The request directs the
City Clerk to revise language included under the Closed Session Report by City Attorney in
order to clarify and correctly report City Council action taken by the City Council in relation to
matters involving NextG Networks.
Financial Impact: Not applicable.
Recommended Action: Motion to:
Amend City Council minutes dated February 2, 2011 by replacing language currently
included under Closed Session Report by City Attorney with corrected language provided by
the City Attorney.
Alternative Action(s): None.
HB -19- Item 2. - 1
ATTACHMENT #2
Council/RDA/PFA Minutes
February 7, 2010
Page 3 of 9
6:00 PM - COUNCIL CHAMBERS
RECONVENED CITY COUNCIL/REDEVELOPMENT AGENCY/PUBLIC FINANCE
AUTHORITY MEETING - 6:35 PM
CLOSED SESSION REPORT BY CITY ATTORNEY
On February 2, 2011, the City Council convened in Closed Session to discuss the matter of
Application of NextG Networks to Engage in Ground-disturbing Outside Plant Construction,
California Public Utilities Commission Application No. 09-03-007, consolidated with the City of
Huntington Beach v. NextG, CPCU Case No. 08-04-037, and the related case NextG Networks
of California v. City of Huntington Beach, Orange County Superior Court Case No. 30-2009-
00119646.
The Council voted unanimously to authorize the City Attorney to challenge the CPUC by way of
filing a Petition for Writ of Review.,
ROLL CALL
Present: Shaw, Boardman, Dwyer, Bohr, Carchio, Hansen, and Harper
Absent: None
PLEDGE OF ALLEGIANCE - Led by Councilmember Dwyer
INVOCATION - Led by Father Christian Mondor, Sts. Simon and Jude Catholic Church
In permitting a nonsectarian invocation, the City does not intend to proselytize or advance any
faith or belief. Neither the City nor the City Council endorses any particular religious belief or
form of invocation.
AWARDS AND PRESENTATIONS
Announcement: Mayor Carchio announced receipt of a late communication received by Paul
Emery, Deputy City Administrator, recommending that Consent Item 3 (Friends of Junior
Lifeguards MOU) be pulled from tonight's agenda.
Announcement: As part of the City's Human Relations Task Force recognition of federal
diversity months, I would like to announce that February is National African American History
Month. The first recognition of the contributions of African Americans was initiated as a week in
1926 by historian and author Dr. Woodson. Since then, each President has issued a
proclamation calling on the people of the United States to observe the month with appropriate
ceremonies and activities. This year's theme is "African Americans and the Civil War" and
honors the black Americans who served our country as soldiers, recruiters, and nurses. On
behalf of the City Council, we join in this celebration as we recognize the struggles and
achievements of black Americans throughout our history.
Presentation: The Huntington Beach Firefighters Association made a check presentation to the
Muscular Dystrophy Association (MDA) from a "Fill the Boot" event that raised approximately
$8,800.
LEGISLATIVE DRAFT Council/RDA/PFA Minutes
February 7, 2010
Page 1 of 2
6:00 PM - COUNCIL CHAMBERS
RECONVENED CITY COUNCIL/REDEVELOPMENT AGENCY/PUBLIC FINANCE
AUTHORITY MEETING - 6:35 PM
CLOSED SESSION REPORT BY CITY ATTORNEY
Engage in GFOund distuFbing outside Plant GenStFUGtien, Galifemia PubliG Utilities GOMMiSsiOR
AppliGatieR No. 09 03 007, consolidated with Gity of Huntington BeaGh v. NextG, GPGU Gase
4 On February 2, 2011, the City Council convened in Closed Session to discuss the matter
of Application of NextG Networks to Engage in Ground-disturbing Outside Plant
Construction, California Public Utilities Commission Application No. 09-03-007,
consolidated with the City of Huntington Beach v. NextG, CPCU Case No. 08-04-037, and
the related case NextG Networks of California v. City of Huntington Beach, Orange
County Superior Court Case No. 30-2009-00119646.
The Council voted unanimously to authorize the City Attorney to challenge the CPUC by
way of filing a Petition for Writ of Review.
ROLL CALL
Present: Shaw, Boardman, Dwyer, Bohr, Carchio, Hansen, and Harper
Absent: None
PLEDGE OF ALLEGIANCE - Led by Councilmember Dwyer
INVOCATION - Led by Father Christian Mondor, Sts. Simon and Jude Catholic Church
In permitting a nonsectarian invocation, the City does not intend to proselytize or advance any
faith or belief. Neither the City nor the City Council endorses any particular religious belief or
form of invocation.
AWARDS AND PRESENTATIONS
Announcement: Mayor Carchio announced receipt of a late communication received by Paul
Emery, Deputy City Administrator, recommending that Consent Item 3 (Friends of Junior
Lifeguards MOU) be pulled from tonight's agenda.
Announcement: As part of the City's Human Relations Task Force recognition of federal
diversity months, I would like to announce that February is National African American History
Month. The first recognition of the contributions of African Americans was initiated as a week in
REQUEST FOR COUNCIL ACTION
MEETING DATE:.4/18/2011 DEPARTMENT ID NUMBER: CK 11-003
Analysis: The City Attorney discovered an error in the City Council minutes dated February
7, 2011. Specifically, Council action reported in relation to Closed Session Item No. 1
(NextG Networks) was incorrectly recorded and must be amended.
The City Attorney has submitted a written communication dated March 29, 2011,
recommending new language to replace what currently exists under the Closed Session
Report by City Attorney section of the minutes (Attachment 1). Staff concurs with the
request, and submits for consideration page 3 as amended (Attachment 2).
Environmental Status: Not applicable.
Strategic Plan Goal: Improve Internal and External Communication
Attachment(s):
o e - ®t i.
1. City Attorney communication dated March 29, 2011 entitled Minutes of February 7,
2011 City Council Meeting
2. February 7, 2011 amended minutes, including legislative draft
Item 2. - 2 HB -20-
ATTACHMENT # 1
s
CITY OF HUNTINGTON BEACH
Interdepartmental Communication
TO: JOAN FLYNN, City Clerk
FROM: JENNIFER McGRATH, City Attorney
DATE: March 29, 2011
SUBJECT: Minutes of February 7, 2011 City Council Meeting
I am writing to request that the City Clerk request that the City Council amend the Minutes of the
February 7, 2011 Meeting. The Minutes indicate that the Council convened in Closed Session to
discuss the matter of NextG Networks of California v. City of Huntington Beach, Orange County
Superior Court Case No. 30-2009-00119646, and related case: Application of NextG Networks
to Engage in Ground-disturbing outside Plant Construction, California Public Utilities
Commission Application No. 09-03-007, consolidated with City of Huntington Beach v. NextG,
CPCU Case No. 08-04-037. The Minutes state that I reported out at the closed session that the
Council "voted unanimously to appeal the decision of November 9, 2010."
While I may have spoken those words,the purpose of the closed session was to discuss with the
City Council the case entitled: Application of NextG Networks to Engage in Ground-disturbing
Outside Plant Construction, California Public Utilities Commission Application No. 09-03-007,
consolidated with City of Huntington Beach v. NextG, CPCU Case No. 08-04-037, and the
related case NextG Networks of California v. City of Huntington Beach, Orange County Superior
Court Case No. 30-2009-00119646. In other words,the CPUC case was the principal matter, not
the Superior Court case. However, while the Minutes at page 2 state the CPUC case was the
principal matter,the description at page 3 indicates the Superior Court case was the principal
matter.
Further, the closed session Report of the City Attorney indicates that the recommended action
was to authorize the City Attorney to challenge the CPUC Decision by way of filing a Petition
for Writ of Review with the Court of Appeal. It was not to authorize an appeal of the decision of
November 9, 2010, in part because there is no decision of November 9, 2010, in either the CPUC
proceeding or the Superior Court proceeding. Consequently,the Minutes should be revised to
read as follows:
61506
'Joan Flynn, City Clerk
March 29, 2011
Page 2
On February 7, 2011,the City Council convened in Closed Session to
discuss the matter of Application of NextG Networks to Engage in
Ground-disturbing Outside Plant Construction, California Public Utilities
Commission Application No. 09-03-007, consolidated with City of
Huntington Beach v. NextG, CPCU Case No. 08-04-037, and the related
case NextG Networks of California v. City of Huntington Beach, Orange
County Superior Court Case No. 30-2009-00119646.
The Council voted unanimously to authorize the City Attorney to challenge the
CPUC by way of filing a Petition for Writ of Review.
JENNIFER McGRATH, City Attorney
61506
H HUNTINGTON BEACH CITY ATTORNEY
CONFIDENTIAL LAWYER-CLIENT COMMUNICATION
CITY OF HUNTINGTON BEACH
REQUEST FOR COUNCIL ACTION
IN CLOSED SESSION
SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBMITTED BY: JENNIFER McGRATH, City Attorney
PREPARED BY: SCOTT FIELD, Assistant City Attorney
SUBJECT: Application of NextG Networks to Engage in Ground-disturbing Outside Plant
Construction, California Public Utilities Commission Application No. 09-03-
007, consolidated with City of Huntington Beach v. NextG, CPCU Case No.
08-04-037;
Related Cases: NextG Networks of California v. City of Huntington Beach,
Orange County Superior Court Case No. 30-2009-00119646
DATE: February 7, 2011
BACKGROUND: NextG Networks of California, Inc. seeks to install new utility lines, utility poles and
antennas within the streets, sidewalks and public right-of-way. This project would facilitate mobile
telephone service by NextG's customer, MetroPCS.
This project presents three issues: (1) does NextG have the same right to free use of the right-of-way
as telephone companies like Verizon, or must NextG pay a franchise fee for access like cable
television, electric, gas and other utilities; (2) must NextG comply with the prohibition on new poles
and lines in the right-of-way, as required under the City's Undergrounding Ordinance; and (3) must
NextG obtain Wireless Permit, and possibly a CUP before installing antennas, as is required under the
City Zoning Code.
On March 6, 2009, NextG sued the City in Orange County Superior Court, seeking a Court Order to
preempt the Undergrounding Ordinance and Zoning Code. That suit is still pending, with an important
hearing set for February 17, 2011, that may resolve the suit.
At the same time, on April 23, 2008, the City filed a complaint with the California Public Utilities
Commission ("CPUC") to challenge the administrative approval the CPUC granted to the NextG
project. By way of its October 18, 2010 Decision, as amended on January 14, 2011, the Commission
found that NextG was authorized to use the right-of-way under Public Utilities Code Section 7901.
Further, the Commission preempted the prohibition of the Undergrounding Ordinance on installing new
poles. The Commission finally approved its own CEQA determination that the project will have no
impact on City aesthetics, notwithstanding the fact that the project proposes installing new utility poles
and new lines on existing utility poles in violation of the Undergrounding Ordinance.
The City has 30 days from February 14, 2011, to seek review of the CPUC Decision before the Court
of Appeal.
Confidential Lawyer-Client Communication
Honorable Mayor and City Council Members
February 7,2011
Page 2
LEGAL PRINCIPLES:
1. In 1905, the Legislature enacted Public Utilities Code Section 7901, which permitted
"telephone companies" to use the City streets to install "telephone wires" without obtaining a local
franchise or paying a fee. To date, no Court has determined if mobile telephone service is a form of
"telephone" service entitled to use of the right-of-way.
2. Decisions of the CPUC are subject to discretionary review by the California Court of Appeal.
CITY ATTORNEY RECOMMENDATION: That the Council authorize the City Attorney to challenge
the CPUC Decision by way of filing a Petition for Writ of Review with the Court of Appeal.
PUBLIC ANNOUNCEMENTS: The City Attorney shall announce any action authorizing an appeal.
SUMMARY OF THE FACTS: NextG proposes to install a Distributed Antenna System ("DAS")
comprising of 15 antennas located on 12 existing utility poles, and three new utility poles. The new
poles are located at Ellis/Goldenwest, Garfield/Edwards and Twin Dolphin/PCH. The antennas would
be connected by new cables hung on existing utility poles. As proposed, the network violates the City
Undergrounding Ordinance, which requires that all new utility lines be installed underground, and
prohibits installation of new utility poles.
Beginning in the very early Twentieth Century, telephone and electric companies began to offer
service. Both technologies required a solid wire from their plant to individual homes and business.
To accommodate this technology, in 1905, the Legislature granted telephone corporations a free,
state-wide franchise to use the right-of-way. However, electric companies were required to obtain
local franchises and pay a franchise fee of 1% of gross revenues.
Historically, Southern California Edison established networks of utility poles to deliver electricity.
Over time, two distinct types of telecommunication systems were allowed to attach their wires to
Edison's poles. The first was Verizon, the telephone company, which operated by way of copper
wire. The second was Time-Warner, the cable operator, which used coaxial cable. Today, from the
top of the pole, there are three tiers of lines: Electric, Telephone and Cable TV.
In 1977, the City adopted its Undergrounding Ordinance (Chapter 17.64 of the Municipal Code),
which required that all new utility facilities be installed underground. Since then, no new utility poles
have been installed and all three companies have installed their lines underground. Today, both
Verizon and Time-Warner have over 200 miles of underground facilities, and a lesser amount of
aerial facilities.
In 2004, the City Council added an exception to the Undergrounding Ordinance to facilitate expansion
of Verizon's service with fiber optic lines. Rather than just replacing copper with fiber optic, the City
added Section 17.64.130(i) to the Code to permit Verizon to "overlash" fiber optic lines on its existing
overhead copper lines. The exception only applies to companies with existing aerial lines, including
Time Warner. It does not permit a new company to add a fourth tier of lines.
Although there was a form of radio telephone by the 1950s, cellular (mobile) telephone service began
commercially in the late-1970s. Unlike landline telephone, mobile technology does not require a wire
to each home and business. The typical cellular telephone network as operated by companies like
Verizon Wireless, Sprint and T-Mobile, consists of tall antennas that use radio frequency to
57772.doc
Confidential Lawyer-Client Communication
Honorable Mayor and City Council Members
February 7,2011
Page 3
communicate with handheld telephones. Historically, these companies leased cell antenna sites on
private and public property, but did not use the right-of-way.
Mobile phone companies have claimed the same right to use the right-of-way as landline telephone
companies. There are two obvious problems with this claim. First, as a matter of technology, mobile
telephony does not require access to the right-of-way. In all cases, they could lease property outside
the right-of-way for antenna sites. Of course, the cost savings of free use of the right-of-way is
substantial. While a typical cell site on private or City property might lease for between $2,000 and
$3,000 per month, a network of low power antennas located in the public right-of-way would cost $0.
Second, for almost 40 years, the City has required undergrounding of utilities. However, antennas
cannot operate underground. Consequently, to make use of the right-of-way, mobile telephone
companies must either use existing utility poles, or install new, perhaps taller antenna poles in the
right-of-way.
NextG is not a mobile phone company itself, because it has no retail customers. Instead, it obtained
a certificate of convenience and necessity ("CPCN")from the CPUC to offer"radio frequency
transport" services on behalf of other mobile telephone companies. The DAS network NextG offers is
to extend fiber optic cable from a Metro PCS wireless hub to various small antennas located in the
right-of-way.
STATUS OF CASES:
On December 3, 2007, CPUC Staff authorized NextG to build its network. NextG then applied to the
City for an encroachment permit to construct its system. The City Attorney notified NextG on
December 6, 2007 that it must comply with both the City Undergrounding Ordinance and the Zoning
Ordinance. Further, the letter disputed that NextG was authorized to use the right-of-way to install
mobile phone antennas.
In response, NextG sued in Federal Court, and obtained a preliminary injunction that permitted it to
install seven of its 15 antennas. On appeal, the Ninth Circuit reversed and the District Court then
dismissed the case in favor of the City. NextG then filed a new State Court case.
While the Federal suit was pending, the Council authorized the City Attorney to file a CPUC
Complaint to challenge the CPUC approval. That complaint was filed on April 9, 2008, and has
moved ahead slowly, while the State Court case proceeded more quickly.
On April 5, 2010, the Orange County Superior Court rejected NextG's claim that issuance of a CPCN
from the CPUC authorized NextG to use the right-of-way under Section 7901.
Since then, the State Case has been on hold, while the CPUC action proceeded. On October 18,
2010, the CPUC issued Decision 10-10-007, finding that NextG is a "telephone corporation" entitled
to use the right-of-way. However, as agreed to by the parties before any decision was made, the
CPUC rendered no opinion regarding the validity of the City's Zoning Code or its Undergrounding
Ordinance.
57772.doc
Confidential Lawyer-Client Communication
Honorable Mayor and City Council Members
February 7,2011
Page 4
The City then applied to the CPUC for rehearing, which is required in order to seek judicial review.
On January 14, 2011, the CPUC denied the rehearing, but then decided to go beyond the issues
briefed by the parties, and determine that installing three new poles in the right-of-way was required
by "the statewide interest in utility regulation."
DAMAGES: Plaintiff not suing for damages. The costs for pursuing an appeal are minimal.
EVALUATION: The City Attorney recommends appealing the CPUC Decision to the Court of
Appeal. If allowed to stand, there is a substantial risk of a proliferation of new lines and utility poles in
the right-of-way.
As a background matter, the number of these disputes is rising. Newpath, a competitor of NextG, is
currently in litigation with Irvine and the City of Davis over similar systems. Further, NextG is now in
litigation with Newport Beach.
FUNDING: Not applicable.
Date:
JENNIFER McGRATH, City Attorney
c: Fred Wilson, City Administrator
Paul Emery, Deputy City Administrator
Robert Hall, Deputy City Administrator
Scott Hess, Planning Director
Travis Hopkins, Director of Public Works
Tony Olmos, City Engineer
57772.doc