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HomeMy WebLinkAbout0012_1_MCA 2016-05 - SRPage 1 of 5 REPORT TO CITY COUNCIL To:Honorable Mayor and Members of the City Council From:Grant Yates, City Manager Prepared by: Damaris Abraham, Senior Planner Date:October 11, 2016 Subject:An Amendment to the Lake Elsinore Municipal Code, Title 17 Zoning, adding Chapter 17.186 providing for the regulation of wireless communications facilities and amending Chapters 17.60, 17.64, 17.68, 17.72, 17.76, 17.80, and 17.84 regarding antennas, satellite dishes, and similar devices Recommendation Waive Further Reading and Introduce by Title Only AN ORDINANCE OF THE CITY OF LAKE ELSINORE, CALIFORNIA, AMENDING TITLE 17 OF THE LAKE ELSINORE MUNICIPAL CODE TO: (1) AMEND CHAPTERS 17.60, 17.64, 17.68, 17.72, 17.76, 17.80, AND 17.84 REGARDING ANTENNAS, SATELLITE DISHES, AND SIMILAR DEVICES; AND (2) ADD CHAPTER 17.186 PROVIDING FOR THE REGULATION OF WIRELESS COMMUNICATIONS FACILITIES AND MODIFYING VARIOUS CHAPTERS RELATED TO USES; and, BY MOTION, APPROVE THE EVALUATION CRITERIA AND REQUIRED CONDITIONS OF APPROVAL FOR WIRELESS COMMUNICATIONS FACILITIES. Background The City of Lake Elsinore’s Municipal Code (LEMC) does not currently have specific regulations and development standards for the placement, construction, or modification of wireless communications facilities. Wireless communications facilities have in the past been reviewed as Accessory Structures subject to a design review application. In addition, they would be subject to a Conditional Use Permit only when they exceed the height limitations of the zone. The increased demand for new wireless communicationsfacilities and federal and state laws significantly limiting the City’s ability to regulate Wireless communications facilities has created the need to amend the LEMC. This amendment will allow the City to have specific regulations and development standards for wireless communications facilities while complying with state and federal laws. Planning Commission Review On September 20, 2016, the City of Lake Elsinore Planning Commission at its regular meeting passed a resolution unanimously recommending that the City Council adopt the proposed amendment and the corollary policy. Page 2 of 5 Discussion Wireless communications facilities are regulated by federal, state, and local laws. Under federal law, a local agency’s decisions cannot have the effect of prohibiting the provision of wireless service or unreasonably discriminating among wireless service providers. Also, under federal law, the City may not regulate the placement, construction, or modification of wireless communications facilities on the basis of the environmental effects of radio frequency (RF) emissions, so long as the facilities comply with the Federal Communications Commission (FCC) regulations concerning such emissions. Despite federal limitations, Cities historically have retained ability to regulate aesthetic issues related to wireless communications facilities, including factors such as height and property line setbacks. Below are the existing Federal and State Preemptions applicable to wireless communications facilities: A. Telecommunications Act of 1996 §§ 332(c)(7) and 253 The Telecommunications Act of 1996 preserves local authority over individual zoning decisions regarding the placement, construction, and modification of wireless communications facilities and requires decision on applications to be made within a reasonable period of time after the request is filed, taking to account the nature and scope of such request. Any decision to deny a request to place, construct, or modify personal wireless service facilities must be supported by substantial evidence contained in a written record. B. Senate Bill 1627, Sections 65850.6 and 65964 The state legislature enacted SB 1627 in 2006, which is codified as Government Code Sections 65850.6 and 65964. Section 65850.6 permits Cities to require a discretionary permit (such as a Conditional Use Permit) for a wireless telecommunications collocation facility if the City holds a Public Hearing and provides notice pursuant to Government Code Section 65091. Upon approval of a wireless telecommunications collocation facility, Cities are precluded from requiring discretionary permits for any subsequent collocation facility on the approved wireless telecommunications collocation facility if certain requirements are met. Government Code Section 65964 prevents Cities from, “as a condition of approval for an application for a permit for construction or reconstruction” of a “wireless telecommunications facility” such as requiring an escrow deposit for removal of a wireless communications facility, unreasonably limiting the duration of any permit for a wireless telecommunications facility. Limits of less than ten years are presumed to be unreasonable absent public safety reasons or substantial land use reasons, and requiring that all wireless telecommunications facilities be limited to sites owned by particular parties (i.e., requiring facilities be built on City property). C. The “Shot Clock” rule issued by the FCC in 2009 In 2009, the FCC issued a ruling adopting what is referred to as the “Shot Clock”, establishing “presumptively reasonable periods” for local action on a WCF siting application. Under the ruling, local governments must review WCF applications for completeness within thirty (30) days from the time the application is submitted by the wireless carrier. Excluding time when the application is incomplete, the agency has ninety (90) days to review and decide on collocation applications and one hundred fifty days (150) to review and decide on all other siting applications. Page 3 of 5 The FCC’s ruling authorizes applicants to file lawsuits if local agencies fail to act within these timelines, and, if sued, the agency must prove that it acted “reasonably” when it failed to act within these time frames. The ruling expressly authorizes these time limitations to be extended by mutual consent of the parties and tolls the thirty-day period while such an agreement is in place. The Shot Clock exists independently of state law so Cities must comply with the Shot Clock as well as applicable state requirements like the Permit Streamlining Act. D. Section 6409(a) – the Spectrum Act Congress, as part of the Middle Class Tax Relief and Job Creation Act of 2012 enacted Section 6409(a) now referred to as the Spectrum Act, and codified as 47 U.S.C. § 1455. Section 6409 of the Spectrum Act provides that the City “may not deny, and shall approve any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” Section 6409 defines “eligible facilities request” as “any request for modification of an existing wireless tower or base station that involves: a. collocation of new transmission equipment; b. removal of transmission equipment; or, c. replacement of transmission equipment.” The statute does not define any of the other terms, most importantly “substantially change” nor does it explain the process the City may use to evaluate whether an application qualifies for federal protection under this section. E. FCC Regulations Implementing Section 6409(a) adopted December 17, 2014 (the New Collocation Rule) and became effective on April 9, 2015 In summary, these rules define terms that are not defined in the Spectrum Act, including “eligible support structure”, “existing”, “substantial change” and “wireless tower”. It is the intent of these definitions to provide clarity as to which types of projects are covered by the Spectrum Act. The rules state that an applicant has the right to assert in writing that a project is covered by the Spectrum Act. If the project falls within the definition of an eligible facilities request, the City must act on it within 60 days from the date an application is submitted, unless the City determines the request is not covered by the Spectrum Act. The 60-day time frame may be tolled by the City for incomplete applications, within 30 days of submittal. The timeframe begins again when the applicant re- submits material and the City then has 10 days to respond. Failure of the City to act within the allowed timeframe results in the automatic approval of such applications. Summary of the Proposed Ordinance The proposed ordinance will implement the Spectrum Act and the other FCC rules and will provide specific development standards for wireless communications facilities. It establishes a straightforward permitting process for wireless communications facility modification requests covered under the Spectrum Act, codifies other processing time rules (commonly known as the “Shot Clock”) that have been adopted for all wireless communications facilities, establishes application requirements, incorporates development standards, and mandates removal of abandoned equipment. Page 4 of 5 The proposedordinance divides permitsrequired into three categories: Eligible Facilities Request, Collocations or Modifications that do not qualify as an Eligible Facilities Request, and new Wireless Communications Facilities. 1. Eligible Facilities Request. To meet the strict timelines established by the new rules, the ordinance would require Minor Design Review applications for Eligible Facilities Request to be reviewed by the Community Development Director or his designee. The Community Development Director’s decision will not be appealable. This would only apply to collocations that meet the definition of “eligible facilities” under the Spectrum Act and would provide a streamlined review by the Community Development Director. The Community Development Director’s purview would be limited to ensuring that the project meets the definition of an existing “eligible facility” and that it does not defeat existing concealment elements. Under federal law, the City has limited discretion to deny these types of requests. 2. Other Collocation or Modification Requests. These types of wireless communications facility projects would typically involve towers on private property where the height of the tower is proposed to increase by more than ten percent, towers in the Public right of way is proposed to be increased by ten feet or more, or projects that will be adding more than four cabinets. To encourage collocations, the ordinance would also require Minor Design Review applications for Collocations or Modifications that do not qualify as an Eligible Facilities Request to be reviewed by the Community Development Director. However, they would be appealable like other design review applications. 3. New Wireless Communications Facilities. The ordinance would require a Conditional Use Permit for all new facilities in addition to a Design Review application. This will grant the City the most discretion over applications for new facilities because once a facility is permitted it gains “eligible facility” status and will be permitted to increase by right under the Spectrum Act and will also provide a consistent process for all new facilities. The ordinance will establish the processing time for the three different permit types as follows: Type of Wireless Facility Timeline for City Decision Type of Permit Required Eligible Facilities Request (Section 6409(a) Facilities) 60-days after application is submitted Minor Design Review – Community Development Director review; non-appealable Other collocations that “substantially change the physical dimensions of the existing wireless tower or base station.” 90-days after Application is submitted Minor Design Review – Community Development Director review; appealable per Chapter 17.184 LEMC New Wireless Communications Facilities 15- days after application submitted Conditional Use Permit and Design Review – Planning Commission review; appealable pursuant to Chapter 17.168 LEMC and Chapter 17.184 LEMC The proposed ordinance also incorporates development standards for new and collocated wireless communications facilities, imposes key conditions of approval, and mandates removal of abandoned equipment. Some of the development standards include: Page 5 of 5 •Requiring applicants to provide justification demonstrating that a proposed facility cannot be placed on an existing building or cannot be collocated. •Requiring monopoles to be designed as stealth facilities. •Requiring monopoles be designed to allow for collocation of additional antennas. •Restricting new wireless facilities in residential districts to a non-residential structure such as a church, school, or recreational facility, including those mounted on light standards within a public or private park. The ordinance will also eliminate the reference to Chapter 17.67 LEMC in various chapters (Chapters 17.60, 17.64, 17.68, 17.72, 17.76, 17.80, and 17.84) and will clarify the reference to antennas, satellite dishes, and similar devices in those chapters is for an accessory use for non- commercial purposes. Summary of the Evaluation Criteria and Required Conditions of Approval Policy In order to provide specific aesthetic design standards, staff has prepared a policy which incorporates evaluation criteria and standard conditions of approval for wireless communications facilities. These provisions are provided to ensure that the facilities are well maintained throughout the life of the permit, appropriate maintenance and/or repair is done in a timely manner, and that the facility is removed upon its abandonment. Standard Conditions of Approval have also been developed with specific design standards to ensure that the design and placement of wireless communications facilities will blend in with the surrounding area and will have minimal visual impacts. The draft Evaluation Criteria and standard Conditions of Approval are included in the attached policy (Exhibit B). Environmental Determination This ordinanceis not subject to the California Environmental Quality Act (CEQA) Guidelines under the General Rule (Section 15061(b)(3)). The project involves updates and revisions to existing regulations. The proposed code amendment is consistent with California Law, specifically Government Code Section 65850.5 and Civil Code Section 714. Because it can be seen with certainty that the proposed Municipal Code text amendment will have no significant negative effect on the environment. Fiscal Impact Costs have been incurred for staff time to research, draft, and process the ordinance. No increase in expenditures or revenues are anticipated as a part of this Municipal Code Amendment. Exhibits A – Ordinance B – Policy No. W-1