Cotati City Council
Agenda Staff Report
Item type: PUBLIC HEARINGS (ACTION)
To: City Council
Subject: TELECOMMUNICATION ORDINANCE UPDATE
Date: February 27, 2024
Written by: Noah Housh, Director of Community Development Recommendation
It is recommended by the Planning Commission that the City Council introduce and conduct the first reading of an ordinance to amend Chapters 17.22, 17.44 and 17.90 of the Cotati Municipal Code to allow telecommunication facilities in the OSR, CE, CG, CD, NG and CA Zoning Districts, subject to Use Permit approval.
Background
Legal Framework Overview
The City’s consideration of wireless facility projects is governed by Cotati Municipal Code (CMC) Section 17.44,.The purpose of this section is rather broad and is identified as: “This chapter establishes development standards consistent with federal law to regulate the placement and design of communication facilities so as to preserve the unique visual character of the city, promote the aesthetic appearance of the city, and to ensure public safety and welfare; pursue additional benefits from the facilities to the public by encouraging the leasing of publicly owned properties where feasible for the development of communication facilities; and to acknowledge and provide the community benefit associated with the provision of advanced communication services within the city.” However, the City’s authority to regulate telecommunication facilities has diminished over time, as various state and federal regulations have been adopted that preempt the City’s Ordinance and the adopted regulations have not kept pace with the changing state and federal regulations. A general overview of the impact of these laws on the City’s ability to regulate telecommunication facilities is provided below.
State & Federal Law Limitations – Substantive
· Telecommunications Act of 1996 (47 USC §332) - Limits the City from either conditioning or denying projects based on radio frequency emissions (“RF”) concerns, if the proposed facility complies with federal RF standards.
· Co-location of Facilities (6409 Eligible) - Certain projects that propose co-location of wireless facilities must be approved by the City (if certain standards are met). · Public Utility Code Section 7901 - Grants telephone companies (wireless communication carriers) a state-wide franchise to construct telephone equipment in the public rights of way (ROW).
· Public Utility Code Section 7901.1 - Preserves local control as to the “time, place and manner” in which the right of way is accessed, including placement and appearance.
State & Federal Law Limitations – Procedural & Fees
· Federal Communications Commission (FCC) Declaratory Ruling – 2018 - Small cell wireless facilities. The FCC order: a) limits local permitting and discretion; b) establishes new/shorter time limits and deadlines for processing and action; c) limits the fees that can be charged; and d) requires advanced publication of any aesthetic regulations and fees. · California Government Code Section 65964.1 - Deems approved any application for new or substantially changed wireless facilities when time limits and deadlines are not met (subject to specific noticing requirements).
Timeframe for Action
State and federal law set specific time frames for action on wireless facility applications (i.e., a “Shot Clock”). Except in instances when the City has entered into a tolling agreement with the applicant, the review authority must approve, approve with conditions, or deny wireless facility projects within the time frames provided below.
The timeframes for action begin at application submittal and are “tolled” or paused when an application has been found to be incomplete. The City has 30-days to determine whether an initial application is complete. If the application is not complete, the City must provide a written incomplete notice to the applicant that cites any application defects.
After the applicant responds, if the application remains incomplete for any reasons stated in the original incomplete notice, the City must issue a second incomplete notice within 10 days (for GC Section 6409 and small cell applications). In all cases, the City cannot deem an application incomplete for reasons not cited in the first notice. Time frames are not tolled to allow for noticing or appeals. The following requirements apply to the City’s processing timelines for different types of telecommunication facilities:
• 60-days: 6409(a) modification application and collocated or attached small wireless facilities
• 90-days: Colocation of non-small cell wireless facilities • 150 days: Installation of non-small cell wireless facilities on existing support structures; New small wireless facilities that include new support structures; New non-small cell wireless facilities that include new support structures Conclusion- Impact of State/Federal Law
The state and federal laws discussed above include both substantive and procedural limitations on the City’s authority. Collectively, these limitations require the City to process applications based on specific information and within certain prescribed timelines. In addition, the City is limited on the amount of fees that can be collected for review of wireless permit applications.
Given that the last update to the City’s telecommunication regulations occurred in 2001, the adopted policies governing the development of these facilities need to be updated.
Analysis/Discussion
Although the identified purpose of the ordinance is to (among other things) “…ensure public safety and…the community benefit…of advanced communication services…”, telecommunication facilities are currently only allowed within the Public Facilities (PF) and Industrial zoning districts. In response to this limitation, T-Mobile has filed a zoning code text amendment application proposing to allow telecommunication facilities in all of the City’s commercial zoning districts (Commercial, East Cotati Corridor (CE), Commercial, Gravenstein Corridor (CG) and Downtown Commercial (CD)). This request is supported by analysis (conducted by T-Mobile) identifying that the current zoning limitations only allow telecommunication facilities on approximately 3% of the city parcels (Attachment 2.5). City staff is proposing to expand this allowance to include the Open Space Recreation (OSR), Northern Gateway (NG) and Commerce Avenue (CA) zoning district as well, in keeping with the purpose of the existing ordinance and to ensure adequate coverage of the cellular network can be provided to Cotati residents into the future. These changes are identified in red text on a modified version of Chapter 17.22 Allowable Land Uses,
Tables 2-2 and 2-3 (Attachment 3). A copy of the City’s Zoning Map is also provided as an attachment to facilitate understanding of the locations proposed to allow telecommunications infrastructure (Attachment 2). Additional information has been provided by T-Mobile in support of their request and is attached to this report.
Other proposed changes included within the proposed Ordinance include addressing elements of the ordinance which are out of compliance with updated state and federal regulations such as which telecommunication projects are exempt from local control (17.44.030 2.), and when such projects are reviewed administratively (17.44.050 B). Development standards (height, setbacks, attachment methods, etc.) and performance standards (noise, lighting, signage, etc.) are generally proposed to remain the same, however an allowance to modify these standards to meet service expansion goals of the project is proposed by T-Mobile to be included within the updated telecommunications ordinance (17.44.065). Additionally, allowances to modify the required setbacks for a telecommunications tower are proposed when adequate safety measures are provided and demonstrated.
Finally, the City’s Telecommunications facility definition is proposed to be updated to include definitions for “breakpoint technology” and “stealth design”. As the industry has matured, these elements have become standard design features and staff finds it is critical to incorporate these terms into the definition of the telecommunications facility.
The proposed draft ordinance is attached in redline/strikethrough format, with changes proposed by the applicant indicated in blue, and additional revisions proposed by Community Development staff identified in red. These changes are specifically identified in Attachment 5.
I. General Plan Consistency
The Community Services and Facilities, Economic Vitality, Land Use and Open Space chapters of the 2015 Cotati General Plan include several goals, policies and objectives which support the proposed amendments to the telecommunication regulations identified in the Cotati Municipal Code (CMC). Specifically, this direction includes:
Goal CSF 1 Provide high quality public services and facilities to all residents, businesses and visitors in Cotati
Policy EV 1.2: Ensure the long-term public services and infrastructure needs of the community are met as part of the overall approach to economic vitality and sustainability.
Goal LU 3 Provide for a range of Commercial, Industrial and Mixed Uses to provide Cotati’s residents access to jobs and employment to support the local economy.
Policy LU 4.1 Ensure that public facilities, services and amenities are distributed in a manner that enhances the quality of life for the broadest number of Cotati’s residents.
Objective OS 1C Balance Open Space conservations with economic development needs.
The Cotati General Plan can be found at:
https://www.cotaticity.org/DocumentCenter/View/256/General-PlanPDF Staff Response:
Staff finds that the requested amendments to the CMC implement and further the 2015 General Plan goals, policies and objectives in that these changes will allow higher quality telecommunication services throughout the City ensuring the long-term infrastructure needs are met; will provide a wider range of uses on commercial and public spaces through-out the City; will help to more evenly distribute the available telecommunication services throughout the City; and that the proposed changes seek to balance the goals of conserving the available open space while also expanding access to telecommunication service.
Financial Considerations
Staff finds that there are no direct impacts to the General Fund that would result from adoption of the proposed ordinance. Additional revenue could be realized in the future as more Cityowned locations would be made available for the installation of telecommunication infrastructure, which would result in lease revenue from the use of City-owned property.
Environmental Issues
As identified above, staff and the Planning Commission have identified that the proposed revisions and amendments to the Cotati zoning standards governing telecommunication facilities closely meet and implement the goals, policies and objectives to the 2015 General Plan. Given this, staff finds that these proposed revisions conform to CEQA Guidelines Section 15183, which provides a streamlined review of the environmental impacts of the project by tiering from the program level analysis prepared for the Cotati General Plan and its certified EIR. Section 15183 of the CEQA Guidelines mandates that projects which are determined to be consistent with the development expectations established by existing zoning, community plan, or general plan policies for which an EIR was certified, shall not require additional environmental review, except as might be necessary to examine project- specific significant effects which are peculiar to the project or its site. This focused analysis should be limited to potential environmental impacts of the project not anticipated or analyzed in the Cotati General Plan’s program level EIR. Staff finds that all adopted mitigating General Plan policies and mitigation measures identified in the 2015 General Plan EIR will address any potential environmental impacts of the proposed code changes.
Further, project specific environmental analysis of any future proposed telecommunication facilities proposed under these revised policies will be required and will allow project specific impacts not previously identified or anticipated to be addressed.