Sebastopol WTF Urgency Ordinance

Apr 2, 2019 | Original agenda Item 3 here.

Note: Emphases in red, additions in bold, striketrhoughs, links and S4WT Comments</span.

Meeting Date: April 2 ,2019

To: Honorable Mayor and City Council members

From: KariSvanstrom,PlanningDirector

Subject: Establishing Interim Regulations for Wireless Facilities and Telecommunications Facilities (WTFs)

Introduction:

This report recommends that the Council adopt an Urgency Ordinance modifying Title 17 “Zoning” of the Sebastopol Municipal Code to establish interim regulations for telecommunications. The Urgency Ordinance would repeal Ordinances 1117 and 1120, a moratorium (and extension) on telecommunications in the public rights-of-way, and establish new regulations for placement of new telecommunications facilities in the public rights-of-way, and modify other sections of the telecommunication ordinance (17.130). These regulations would be in place until the Planning Commission reviews and make recommendations to the Council, and the Council adopts a modified ordinance.

Background:

On October 30, 2018, the City Council adopted an Urgency Ordinance establishing a moratorium on applications and placement of new telecommunications facilities in the public rights-of-way pending completion of the review and adoption of a permanent ordinance. This moratorium was extended at the Council’s December 4, 2018 meeting (Ordinance 1120) and is currently in effect until October 2019, or until the adoption of an Urgency or permanent Ordinance.

The final section of regulations adopted by the Federal Communications Commission (FCC) on September 27, 2018 go into effect on April 15, 2019. These regulations require a city or other permitting agency to have design and development standard regulations in place at that time. After that date, it is likely that any adopted moratorium would be null and void, and hence not provide the desired protection to the city as it develops its final regulations, as the FCC rulings require any design and development standards to be published in advance of any application.

Therefore, staff is recommending that the Council adopt a new Urgency Ordinance which would repeal the current moratorium and put in place interim regulations for telecommunications in the public rights-of-way, as well as updating other areas of the ordinance.

The proposed ordinance provisions are based on best practices being implemented by many northern California communities with the same concerns as Sebastopol, including the cities of

  • Sonoma,
  • Petaluma,
  • Mill Valley, and
  • San Anselmo

The provisions are also based on a preliminary discussion of the ordinance by the Planning Commission at its December 11, 2018 meeting. Further hearings will be scheduled with the Planning Commission to continue their review of the changes to the Telecommunications Ordinance; these discussions will use the proposed Urgency Ordinance as the basis for discussion.

Urgency Ordinance

The proposed Urgency Ordinance maintains much of the current Telecommunications Ordinance (Sebastopol Municipal Code [SMC] 17.130) in relation to regulations on private property; however there are certain sections that have been updated to address new state and federal law, new technologies (specifically in the definitions), and improved application procedures.

The proposed development standards are additive to the current ordinance and provide for comprehensive regulations for the

  • permitting
  • development,
  • siting,
  • installation,
  • design,
  • operation, and
  • maintenance

of telecommunications facilities in the public rights-of-way.

Below is a brief summary of the provision of the proposed ordinance:

Section 17.130.015 Additional Definitions — This section moves definitions specific to telecommunications from the general definitions section to the Telecommunications Ordinance (17.130); adds a number of definitions that relate to new technologies and installation methods; and, clarifies that ‘minor antenna’ provisions are applicable to non-commercial antenna installations only.

Section 17.130.070 Minimum Application Requirements — This section updates the application requirements to include requirements that will help the City process applications within the new <span style="color:#C00" shortened shot-clocks. These provisions were discussed with the Planning Commission and unanimously supported. The new requirements would apply to all (public and private property) installations, and include: requirement of

  1. a pre-submittal conference with the Planning Department;
  2. a community meeting by the applicant prior to submittal;
  3. an in-person submittal appointment with the Planning Director;

. . . and, specifies withdrawal timeline and procedures for dormant/non-responsive applications.

S4WT Comment: It seems that this will block public review and the public’s opportunity to place substantial evidence in the public record about the installation of these Close Proximity Microwave Radiation Antennas (CPMRAs). What Sebastopol is proposing is democracy theater, not actual democracy. We, the people, cannot be excluded from the a discretionary review process of something that will profoundly and adversely affect the people’s safety, privacy and property values.

Section 17.130.090 Life of Permits is replaced with Section 17.330 through Section 17.360, which provide the same 10-year permit time frame required by Federal law, but updates expiration provisions, and adds additional provisions to address abandoned facilities, restoration of sites, and revocation of permits.

Section 17.130.100 Design and Development Standards for All Facilities — This section is applicable to both public rights-of-way and private property installations, and adds additional criteria to address speculative installations (not allowed), screening of equipment, aesthetics, and safety issues.

Section 17.130.130 Additional Location and Configuration Preferences — This section provides guidelines for preferred location and configuration of telecommunications facilities. The Planning Commission’s December study session reviewed and discussed the location list, with the preference to avoid both residential zones and community facilities that are populated by children on a frequent basis (schools and parks). While the Commission has not yet reviewed the order of preferences, the listing prioritizes less-populated areas (manufacturing zones) over commercial and then residential zones (see page 22 of Exhibit A)

S4WT Comment: Not preferences. We need "requirements", instead.

Section 17.130.235 Additional Design and Development Standards for Facilities in the Public Rights-of-Way — This section includes additional design and development standards for telecommunication facilities that are located inside the public rights-of-way, including

  • establishing maximum height limits on utility and streetlight poles for antennas,
  • occupation of space (with a strong preference for undergrounding of accessory equipment),
  • required permits
  • other requirements.

These additional design and development standards have been incorporated based on several local area city’s requirements, including Petaluma and Sonoma cities’ recently adopted ordinances. As we have had interest from some community members that are concerned [have entered substantial evidence into the public record] about the potential health [proven adverse biological] impacts associated with pole mounted wireless facilities [Close Proximity Microwave Radiation Antennas (CPMRAs) that do not have effective minimum height requirements and/or effective maximum power output limits — see 150/150 Solution for RF-EMR Exposure Regulations], City of Sebastopol staff has incorporated

  1. A distance requirement between facilities (1,500 feet apart) for pole-mounted facilities [all Wireless Telecommunications Facilities].
  2. A setback from properties with residential dwelling units on them (75 feet from any property line)
  3. [Missing antenna vertical setback regulation: antennas no lower than 150 feet from highest roof within 1,500 feet of installation]
  4. [Missing maximum peak RF-EMR power output regulation: no higher than 150 µW/m² at six points surrounding the antenna (at 60°, 120°, 180°, 240°, 300°, 360°) — points that are the closest (both vertically and horizontally] to where people could be]
  5. [Missing a 24/7 peak RF-EMR monitoring regulation that has ability to automatically power off the antennas and to levy fines for Wireless Carrier infractions]

*Section 17.130.260 Conditions of Approval for All Commercial Telecommunications Facilities; Section 11130.270 Additional Conditions of Approval for Facilities Located in the Public Rights-of-Way; and Section 17.130.280 Findings — These sections outline findings and conditions of approval for new commercial facilities, including requirements for post-installation testing of actual radio frequency (RF) emissions, and bi-annual testing thereafter, to be done by the City’s consultant at the applicant’s expense.

Section 17.130.290 Exceptions — This section provides for the required exception process to comply with Federal (FCC) regulations, while requiring that the applicant provide the burden of proof for the need for an exception, and limiting any exceptions to the least non-compliant design feasible.

S4WT Comment: Which FCC regulations require an such exception process? If the City is trying to comply with FCC 18-133, the very regulations facing law suits from 200+ cities in the Ninth Circuit Court of Appeals right now, then the City of Sebastopol is

  1. Not doing its best to defend its own rights to regulate its own public right-of-way
  2. Not honoring the CA State Constitituion
  3. Not defending its residents’ inalienable rights to safety and privacy and safety.

Note: the country’s top Telecom attorney, Joseph Van Eaton from Best, Best and Krieger (representing San Jose and these 62 other cities) has advised all cities : "We are not recommending that you incorporate the FCC standards into local law." (see details, below).

Sections 17.130.300 — This section applies to all collocations or modifications to an existing wireless tower or base station with a written request for approval pursuant to Section 6409(a). This Section generally requires that State and local governments “.. .not deny, and shall approve” requests to collocate, remove or replace transmission equipment at an existing tower or base station. Such applications undergo administrative review for compliance; the proposed section outlines the required findings for approval, denial, and appeal procedure.

Section 17.130.310 — This section provides the requirements, standards, and regulations for a wireless telecommunications collocation facility for which subsequent collocation is a permitted use pursuant to California law.

Environmental Review:

The proposed ordinance is exempt from the California Environmental Quality Act (“CEQA”) based on CEQA Guidelines Section 1506 1(b) (3), which excludes projects where “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.”

S4WT Comment: Why is Sebastopol conceding the point that the installation of Close Proximity Microwave Radiation Antennas (CPMRAs) — of any number and without any total peak RF-EMR exposure maximum power output that is not monitored 24/7 monitor — is exempt from CEQA? The City of Sebastsopol is considering allowing the installation of a 24/7 poison delivery system in residential neighborhoods without any effective regulation . . . doing so violates CA CEQA laws.

  • CPMRAs have to be evaluated as a system of hundreds or thousands of CPMRAs in one system, not one CPMRA at a time.

  • Since each CPMRA represents a firehose of 24/7 perpetual poison for the entire length of the permit term — which is generally 10 or 20 years . . .

  • . . . then a 100+ CPMRAs — all operating 24/7 — results in many large water cannons of perpetual poison, which is an obvious CEQA violation.

The proposed regulations will not allow for the development of any new or expanded small cell wireless telecommunication facilities anywhere other than where they were previously allowed under existing federal, state, and local regulations.

S4WT Comment: What, specifically, does that mean? Where were they previously allowed? Apparently . . . in any zones, including residential neighborhoods.

Staff Recommendation:

It is recommended that the City Council

  1. Receive a presentation,
  2. Hold a public hearing, and
  3. Introduce and adopt the attached Urgency Ordinance, which would repeal Ordinance 1120 (extension of the moratorium);
  4. Establish new regulations for placement of new telecommunications facilities in the public rights-of-way; and,
  5. Modify other sections of the Telecommunication Ordinance (17.130).

The Urgency Ordinance would be adopted pursuant to Government Code Section 36937(b), which allows for the adoption of an urgency ordinance with a four-fifths (4/5) affirmative vote of the City Council. If adopted, the ordinance would be effective immediately.

Note, unlike the prior ordinances (1117 and 1120), which were adopted under Gov. Code Section 65858 and effective for 45 days and an extension of 10 months 15 days, an ordinance adopted under Government Code Section 36937(b) does not expire, so the proposed ordinance would be effective until such time that the Planning Commission can review and make recommendations to the Council for its consideration.


City of Sebastopol Ordinance No.______

AN URGENCY ORDNANCE OF THE CITY COUNCIL OF THE CITY OF SEBASTOPOL REPEALING ORDINANCES 1117 AND 1120 ESTABLISHING AND EXTENDING A MORATORIUM ON APPLICATIONS FOR THE DEVELOPMENT OF WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHTS-OF-WAY, AMENDING THE SEBASTOPOL MUNICIPAL CODE TO ADD CHAPTER 17.135 ADOPTING REGULATIONS FOR WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHTS-OF-WAY, AND AMENDING CHAPTER 17.130 (“GENERAL PROVISIONS RELATING TO TELECOMMUNICATIONS FACILITIES AND MINOR ANTENNAS”)

SECTION 1: Purpose and findings.

Whereas, this Ordinance is adopted as an urgency ordinance pursuant to Government Code Section 36937(b).

The facts constituting the urgency are as follows:

1. The purpose of this Ordinance is to amend the City’s Municipal Code to provide uniform and comprehensive standards, regulations and permit requirements for the installation of wireless telecommunications facilities in the City’s public rights-of-way, in light of the Declaratory Ruling and Third Report and Order in “In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment” adopted September 26, 2018 by the Federal Communications Commission (“Order”)** setting new limitations on local standards for, and accelerating the processing of, the siting of small cell wireless telecommunications facilities’ by local jurisdictions over such applications.

S4WT Comment: Why is Sebastopol writing a local ordinance that is consistent with the FCC Order 18-133 ("FCC-18-133"), when FCC-18-133 represents massive overreach into intrastate matters, is the subject of a law suit by hundreds of cities in the Federal Ninth Circuit Court of Appeals and contradicts the advice of Joseph Van Eaton of Best, Best and Krieger, the lead attorney for San Jose et al. v. FCC law suit against FCC Order 18-133.:

  • "There may be another request for a stay in the Ninth Circuit. While the Tenth Circuit denied the stay request, it did so on the basis of a failure to show irreparable harm, not a failure to show a likelihood of success on the merits. Therefore, if the facts on the ground change, a stay may still be warranted. Therefore, please recognize that, while the order has gone into effect, it could be put on hold in the future. If you are facing threats or costs, or feel you are suffering an imminent harm as a result of the rules, please document the problem. Relief may be possible. The order(s) may eventually be overturned.

  • We believe there are substantial questions as to whether the FCC small cell order is valid and lawful, and we are representing numerous jurisdictions challenging it and the August moratoria order. We are not recommending that you incorporate the FCC standards into local law.

  • If you do so, then you will be bound by your own requirements, even if the FCC order is vacated. Therefore, we think it is useful to develop regulations that provide you with maximum flexibility to make substantive determinations that you would be comfortable making — even if the FCC had not changed it rules — while still complying with procedural requirements, such as shot clocks that, if not complied with, may result in a loss of rights. If you are faced with a situation where you feel compelled to grant an application because of the FCC rules, you may wish to make the permit conditional, so that it terminates if the FCC rule is overturned."

2. Providers within the wireless telecommunications industry have expressed interest in submitting applications, or have already submitted applications, for the installation of “small cell” wireless telecommunications facilities in the City’s public rights-of-way of the City. Other California cities have also received applications for small cells to be located within the public rights-of-way.

3. The recent FCC Order provides that all local juris dictions must comply with various restrictions on the exercise of local aesthetic, zoning, public works, and fee restrictions when dealing with wireless installation siting applications by the effective date of the Order which is January 14, 2019. The FCC Order further provides that all agencies should be capable of fully implementing its provisions within 180 days of its adoption which was on September 26, 2018.

S4WT Comment: This is a far too general statement about the 100-page FCC 18-133 Report and Order. Sebastopol must be aware of which items in this unconstitutional "wish list" — from the FCC and the Wireless Industry lobbyists that are running the show — should be considered, if any, and when they should be addressed only after the Ninth Circuit Court of Appeals decision on Case 19-70144 et al.).

4. Applications for siting of wireless facilities have grown dramatically among jurisdictions such as Santa Rosa, Sonoma, Palo Alto, Piedmont, Rancho Palos Verdes, Monterey, Pacifica, Burlingame, and various other cities and counties located within the Bay Area as well as the State since small cell facilities became the most preferred option of wireless providers for wireless telecommunications facilities. Applications for siting of small cell facilities generally are submitted in batches for multiple locations at the same or substantially the same time and thus must all be reviewed and evaluated at the same time. The City last received applications for small cell facilities in a batch of more than ten separate applications for more than ten separate locations within the City which were all submitted on one date.

S4WT Comment: Sebastopol does not have to cede its rights to manage its public rights-of-way as it sees fit, per the Anti-Commandeering Doctrine which has been upheld in five US Supreme Court cases:

  1. Prigg v. Pennsylvania (1842)
  2. New York v. United States (1992)
  3. Printz v. United States (1997)
  4. Independent Business v. Sebelius (2012)
  5. Murphy v. NCAA (2018)

The correct test is whether or not FCC-18-133 is consistent with the legislative intent of laws passed by our US Senators and Representatives. FCC 18-133 is not consistent with the legislative intent of our US Senators and Representatives:

Conference Report 104-458 from Jan 31, 1996

Under subsection (c)(7)(B)(ii), decisions are to be rendered in a reasonable period of time, taking into account the nature and scope of each request. If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision.

The phrase ‘‘substantial evidence contained in a written record’’ is the traditional standard used for judicial review of agency actions.

The conferees intend section 332(c)(7)(B)(iv) to prevent a State or local government or its instrumentalities from basing the regulation of the placement, construction or modification of CMS facilities directly or indirectly on the environmental effects of radio frequency emissions if those facilities comply with the Commission’s regulations adopted pursuant to section 704(b) concerning such emissions.

The limitations on the role and powers of the Commission under this subparagraph relate to local land use regulations and are not intended to limit or affect the Commission’s general authority over radio telecommunications, including the authority to regulate the construction, modification and operation of radio facilities.

5. The Order is intended to facilitate the spread, growth, and accumulation of small cell facilities over a short period of time in order to enable deployment of technology that the Order claims will enable increased competition in healthcare, Internet of Things applications, life-saving car technologies and create jobs, possibly increasing the U.S. economy by as much as$100 billion by speeding up the deployment of small cells by only one year. The Order reduces the “shot clock” period allowable to cities to review, comment upon, consider, and make a final determination on small cells applications to 90 days for new facilities and 30 days for collocated and modified facilities.

S4WT Comment: Why is Sebastopol including this obvious Wireless industry propaganda in its own Wireless Ordinance? It is illegal for the Federal Government to commandeer the City of Sebastopol and make it a mere arm of the Federal Government, like this. The Congressional intent was to preserve local rule:

"It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision."

Therefore, Sebastopol should defend its rights to maintain reasonable time frames for public review.

6. Small cell wireless facilities are primarily installed within public rights-of-way and as such create significant and far-reaching local concerns in traffic and pedestrian safety, aesthetics, protection and preservation of public property, and the health, safety and welfare of the general public.

S4WT Comment: Again, there is no need to include a Wireless industry wish into Sebastopol’s local ordinance. The least intrusive means for a Wireless Carrier to close a significant gap in coverage (as proven by substantial, verifiable evidence in the public record) is for Wireless Carriers to collocated 4G and 5G antennas on existing Macro Cell Tower facilities (or build new Macro Towers, as needed), consistent with Ninth Circuit case law: Metro-PCS vs. San Francisco

7. Installation of small cell and other wireless telecommunications facilities within the public rights-of-way can pose a threat to the public health, safety and welfare, including

  • disturbance to the rights-of-way through the installation and maintenance of wireless facilities;
  • traffic and pedestrian safety hazards due to the unsafe location of wireless facilities;
  • impacts to trees where proximity conflicts may require unnecessary trimming of branches or require removal of roots due to related undergrounding of equipment or connection lines;
  • land use conflicts and incompatibilities including excessive height of poles and towers;
  • creation of visual and aesthetic blights and
  • potential [Proven] safety [harms] concerns arising from pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) exposures were documented in Sebastopol in November 2018 from 24/7 average RF-EMR exposures of 40,000 μW/m², which is 0.4% of the FCC RF-EMR exposure guideline
  • [Other aesthetic harms could be] excessive size, heights, noise or lack of camouflaging of wireless facilities including the associated pedestals, meters, equipment and power generators; and
  • the creation of unnecessary visual and aesthetic blight by failing to utilize alternative technologies or capitalizing on collocation opportunities which may negatively impact the unique quality and character of the City.

S4WT Comment: Here are some missing threats to the public health, safety and welfare:

  1. Excessively low-to-the-ground deployment of antennas
  2. TBD
  3. TBD

8. The City currently regulates wireless telecommunications facilities on private property through its telecommunications ordinance. However, the primary focus of the existing telecommunications facilities regulations in the Sebastopol Municipal Code is wireless telecommunications facilities located on private property, and the existing Code provisions were not specifically designed to address the unique legal and practical issues that arise in connection with wireless telecommunications facilities deployed in the public rights-of-way and the encroachment permit process.

9. The City Council previously adopted Ordinances 1117 and 1120 adopting, and then extending, a moratorium on new applications for telecommunications in the public rights-of-way to provide time to develop such regulations. However, certain aspects of The FCC Order will come into full effect on April 15, 2019. and the City will need to have regulations in place at this time to fully protect the City should it receive an application for a telecommunication facility in the public rights-of-way.

S4WT Comment: TBD

10. The lack of regulations that are specific to the siting of wireless telecommunications facilities in the public rights-of-way combined with the Order’s regulations to hasten the spread and development of small cell facilities would, if continued, jeopardize the health and safety of the public by allowing applications for small cell facilities to be submitted and subject to limited local siting regulations resulting from the implementation of the Order. There is not sufficient time for the City to develop regulations specific to the siting of wireless telecommunications facilities in the public rights-of-way before such applications would be made. Yet, under the new “shot clock” rules such applications would need to be approved within either 60 or 90 days of the application being submitted. Any requirements that were placed into effect by the regulations being developed by the City could not be applied to the application before such application would be approved under the new “shot clock” rules. Such a state of affairs would result in facilities being approved that are inconsistent with appropriate regulations being developed by the City in order to exercise the degree of local authority within the parameters allowable under the Order. Thus, projects would be applied for and approved by law without local authority being properly, appropriately, and within the confines of federal and state laws exercised by the City which would in turn result in potentially numerous wireless telecommunications facilities being constructed and existing without local controls for as long as the life of the facility.

S4WT Comment: TBD

11. The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service.

S4WT Comment: TBD

12. The California Public Utilities Commission (CPUC) is primarily responsible for the implementation of local telephone competition and the CPUC issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations.

13. Section 234(a) of the California Public Utilities Code defines a “telephone corporation” as “every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state.”

14. Section 616 of the California Public Utilities Code provides that a telephone corporation “may condemn any property necessary for the construction and maintenance of its telephone line.”

15. Section 2902 of the California Public Utilities Code authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets.

S4WT Comment: TBD

16. Section 7901 of the California Public Utilities Code authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.

17. Section 7901.1 of the California Public Utilities Code confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner, and may involve the imposition of fees.

18. Section 50030 of the California Government Code provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes.

19. State and federal law have changed substantially since the City last adopted regulations for wireless telecommunications facilities in the City. Such changes include modifications to “shot clocks” whereby the City must approve or deny installations within a certain period of time. State and federal laws require local governments to act on permit applications for wireless facilities within a prescribed time period and may automatically deem an application approved when a failure to act occurs. See 47 U.S.C. § 332(c)(7)(B)(iii); 47 C.F.R. §~ 1.40001 et seq.; Cal. Gov’t Code § 65964.1. The Federal Communications Commission (FCC) may require a decision on certain applications in as few as 60 days. See 47 C.F.R. § 1.40001 (c)(2); see also In the Matter of Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report and Order, 29 FCC Red. 12865 (Oct. 17, 2014) [hereinafter “2014 Report and Order”]; In the Matter of Petition for Declaratory Ruling to Clarify Provisions of Section 332(cl(7)(B) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC Red. 13994 (Nov. 18, 2009) [hereinafter “2009 Declaratory Ruling”]. The City is in immediate need of clear regulations for wireless installations in the public rights-of-way given the number of anticipated applications and legal timelines upon which the City must act.

20..The public rights-of-way in the City is a uniquely valuable public resource, closely linked with the City’s historical, unique small-town character, as well as, its attractiveness for tourists, members of the business community, and residents alike. The reasonably regulated and orderly deployment of wireless telecommunications facilities in the public rights-of-way is desirable, and unregulated or disorderly deployment represents an ever-increasing and true threat to the health, welfare and safety of the community.

S4WT Comment: TBD

21. The regulations of wireless installations in the public rights-of-way are necessary to protect and preserve the aesthetics in the community, as well as the values of properties within the City, and to ensure that all wireless telecommunications facilities are installed using the least intrusive means possible.

22. The City finds that in light of more recent developments in federal and state law with respect to the regulation of small cell and other wireless telecommunications facilities, there is a need for the City to update its current ordinances based on current telecommunications trends, updates in laws, as well as aesthetic and location options for wireless facilities. The City Council also finds that the lack of specifically designed standards and regulations in the Municipal Code for wireless facilities located in the public rights-of-way, the increasing requests for information about the City’s regulation of wireless telecommunications facilities, and the potential liabilities and negative consequences [for xxx and] for noncompliance with state and federal regulations (including, without limitation, automatic approvals) present current and immediate threat to the public health, safety and welfare. The City Council further finds and declares that the immediate implementation of the Ordinance is necessary to preserve and protect public health, safety and welfare.

23. The City recognizes its responsibilities under the Federal Telecommunications Act of 1996 and state law, and believes that it is acting consistent with the current state of the law in ensuring that irreversible development activity does not occur that would harm the public health, safety, or welfare. The City does not intend that this Ordinance prohibit or have the effect of prohibiting the provision of telecommunications service; rather, the Ordinance includes appropriate regulations to ensure that the installation, augmentation and relocation of wireless telecommunications facilities in the public rights-of-way are conducted in such a manner as to lawfully balance the legal rights of applicants under the Federal Telecommunications Act and the California Public Utilities Code while, at the same time, protecting to the full extent feasible against the safety and land use [rights] concerns described herein.

24. Whereas, adoption of this Ordinance is consistent with the City’s General Plan, which was adopted on November 15, 2016. The City’s General Plan provides goals, policies and implementation measures to preserve the high-quality design, scale, unique small-town character, aesthetics, scenic vistas, natural setting and resources, and environmental characteristics while also maintaining a strong and vibrant healthy economy for its local business and assuring the health and safety of its residents. Adoption of this Ordinance will provide uniform and comprehensive regulations and standards for wireless telecommunications facilities in furtherance of these goals and objectives while reducing the potentially negative impacts.

25. The City Council adopted Resolution 6180 at its regularly scheduled meeting of March 20, 2018, approving an update to the City’s Telecommunications Ordinance, and the Planning Commission held preliminary discussions at its regularly scheduled meeting of April 24, 2018. Additionally, the Federal Communications Commission adopted new regulations for small cell telecommunication facilities and regulations regarding placement of telecommunication facilities within the public rights-of-way on September 26, 2018, and published these regulations on September 27, 2018. These new regulations will require revisions to the City of Sebastopol’s Telecommunications Ordinance. The City of Sebastopol, in response to changing State and Federal law and regulations, has been diligently working on updating its telecommunications regulations.

26. Whereas, pursuant to the California Environmental Quality Act (CEQA, codified at Public Resources Code § 21000 ci’ seq.) and the State CEQA Guidelines (14 CCR, § 15000 ci’ seq.), on November 15, 2016, the City Council certified and adopted an Environmental Impact Report (EIR) for the Sebastopol General Plan (the “Project”; State Clearinghouse No. 2016032001); and

27. Whereas, on April 2, 2019, the City Council conducted a duly-noticed Public Hearing, deliberated, and found that the interim regulations were necessary to preserve the public health, safety and general welfare.

SECTION 2. Immediate Threat to Health, Safety and Welfare.

Based on the findings and conditions set forth and described in Section 1 of this ordinance, the City Council of the City of Sebastopol, declares this ordinance is necessary as an urgency measure to address existing threats to the public health, safety and welfare as described in Section 1. The Council determines that the establishment of regulations for placement of telecommunication facilities within the public rights-of-way is necessary to protected against any threats to the public health, safety and welfare.

NOW, THEREFORE, the City of Sebastopol City Council does ordain as follows:

SECTION 1. The above recitals are hereby declared to be true and correct and represent the findings of the City Council of the City of Sebastopol. Said findings are incorporated by this reference.

SECTION 2. The City Council hereby repeals Ordinances 1117 and 1120 Establishing and Extending A Moratorium On Applications For The Development Of Wireless Telecommunications Facilities In The Public Rights-Of-Way

SECTION 3. The Sebastopol Municipal Code (SMC) is hereby amended as follows:

A. Chapter 17.130, “General Provisions relating to Telecommunications Facilities and Minor Antennas” is hereby amended as set forth in Exhibit A, to this Ordinance, which is hereby incorporated as though set forth in full herein.

B. All references to Chapter 17.130 of this Municipal Code, including Chapters 17.20 through 17.46 shall continue to dictate whether wireless telecommunications facilities are permitted within the district being referenced by that provision, unless otherwise provided herein.

SECTION 4. The City Council hereby finds that Adoption of this Ordinance will enact only minor changes in land use regulations, and it can be seen with certainty that its adoption will not have a significant effect on the environment because it will not allow for the development of any new or expanded wireless telecommunication facilities anywhere other than where they were previously allowed under existing federal, state and local regulations. The wireless facilities themselves are exempt from CEQA pursuant to CEQA Guidelines Section 15301, which exempts existing facilities where there is negligible or no expansion of an existing use, Section 15303, which exempts the installation of new, small equipment and facilities in small structures and Section 15305, which exempts minor encroachment permits. The proposed Ordinance also falls within the “common sense” CEQA exemption set forth in CEQA Guidelines Section 15061(b)(3), excluding projects where “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.”

S4WT Comment: TBD

SECTION 5. Conflicting Laws. During the continuation of the effectiveness of this ordinance, the provisions of this ordinance shall govern. If there is any conflict between the provisions of this ordinance and any provisions of the Sebastopol Municipal Code, or any City ordinance, resolution or policy, the provision of this ordinance shall control. If there are any conflicts between the provisions of this ordinance and any provisions of State or Federal law in effect during the same time as this ordinance, the provisions of this ordinance shall be null and void.

S4WT Comment: TBD

SECTION 6. Severability. If any section, subsection, sentence, clause, phrase or word of this ordinance is for any reason held to be invalid and/or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. /

SECTION 7. Effective Date. This ordinance is declared to be an urgency measure and if adopted by the affirmative date of at least four council members, shall become effective upon its adoption.

IN COUNCIL DULY PASSED THIS ________th day of , 2019.

VOTE:

  • Ayes:
  • Noes:
  • Abstain:
  • Absent:

APPROVED: _______________
Mayor Neysa Hinton

ATTEST:
Mary Gourley, Assistant City Manager/City Clerk, MMC

APPROVED AS TO FORM: ______________________________
Larry McLaughlin, City Attorney

Exhibit A