CITY OF LAGUNA NIGUEL
CIty CouncIL AGENDA ITEM
To: Honorable Mayor and Council Members
FROM: Jonathan Orduna, Community Development Director
DATE: August 2, 2022
SUBJECT: Second reading and adoption of Ordinance No. 2022-218, amending Title 7, Highways, Rights-of-Way, and Vehicles, of the Laguna Niguel Municipal Code.
RECOMMENDATION
Staff recommends that the City Council conduct a second reading, by title only, and adopt Ordinance No. 2022-218:
ORDINANCE NO. 2022-218
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAGUNA
NIGUEL AMENDING TITLE 7 OF THE LAGUNA NIGUEL MUNICIPAL
CODE, ESTABLISHING REGULATIONS FOR COMMUNICATION
FACILITIES IN THE PUBLIC RIGHTS-OF-WAY, AND FINDING THIS
ORDINANCE TO BE EXEMPT UNDER THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
BACKGROUND & ANALYSIS
On July 19, 2022, as part of a duly held public hearing, the City Council considered proposed regulations and fees pertaining to permitting communication facilities within the public rights-of-way. The regulations are intended to create a streamlined, over-the- counter review and approval process for the location of small wireless facilities within the City's public rights-of-way, thereby eliminating an existing gap in the City's regulatory framework and achieving consistency with applicable state and federal regulations.
As a part of the hearing, the City Council adopted Resolution Nos. 2022-1403 and 2022- 1404 establishing policy and permitting requirements as well as permitting fees, respectively. The City Council also conducted the first reading, by title only, of Ordinance No. 2022-218 and directed that it be placed on the August 2, 2022 City Council agenda for second reading and adoption. Ordinance No. 2022-218 amends Laguna Niguel Municipal Code (LNMC) Title 7 (Highways, Rights-of-Way, and Vehicle) establishing general regulations for communication facilities (i.e., small wireless facilities) in the public
rights-of-way. During the hearing, a clarification edit to the findings regarding cost-based recurring fees was noted, the proposed ordinance, included as Attachment A, includes the edit.
ALTERNATIVES CONSIDERED
The City Council may decide not to amend Title 7 of the LNMC. Such action would fail to address current state and federal law requirements applicable to City regulation of communication facilities. Additionally, failure to address such requirements will leave the City vulnerable to lawsuits by its carriers, along with incurring costs associated with detending such lawsuits. The City Council may also decide to direct staff to return with a revised ordinance to be presented at a future City Council meeting.
CALIFORNIA ENVIRONMENTAL QUALITY ACT
The City Council finds that Ordinance No. 2022-218 is exempt from review under the California Environmental Quality Act ('CEQA") (California Public Resources Code Section 21000, et seq.), pursuant to Section 15061(b)(3) of the CEQA Guidelines, covering activities with no possibility of having a significant effect on the environment.
The Ordinance adopts local regulations in a manner that complies with federal regulations. The Ordinance does not directly or indirectly authorize or approve any actual changes in the physical environment. Permit applications for any communication facility would be subject to additional environmental review on a case-by-case basis. In addition, the City has determined that this Ordinance is categorically exempt pursuant to Section 15301 of the CEQA Regulations applicable to minor alterations of existing governmental and/or utility-owned structures and/or Section 15303 applicable to new construction or conversion of small structures.
FISCAL REVIEW
All permit services or other activities rendered by the City in connection with Ordinance No. 2021-218 would be covered by fees charged to the application. Accordingly, City staff anticipates no net fiscal impact as a result of the adoption of Ordinance No. 2022- 218.
LEGAL REVIEW
The City Attorney's office has reviewed and approved Ordinance No. 2022-218 as to form and content.
CONCLUSION
Staff recommends that the City Council conduct a second reading, by title only, and adopt Ordinance No. 2022-218 by title:
ORDINANCE NO. 2022-218
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF LAGUNA
NIGUEL AMENDING TITLE 7 OF THE LAGUNA NIGUEL MUNICIPAL
CODE, ESTABLISHING REGULATIONS FOR COMMUNICATION
FACILITIES IN THE PUBLIC RIGHTS-OF-WAY, AND FINDING THIS
ORDINANCE TO BE EXEMPT UNDER THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
Jamara SEetonneau Neer Siate
Tamara S. Letourneau Nicholas Ghirelli
City Manager City Attorney
tillaGle
Jonathan Orduna John Morgan
Community Development Director Development Services Manager 5o-
Amber Gregg
Contract Planner
Attachments):
A. Ordinance No. 2022-218, Laguna Niguel Municipal Code Amendment (Title 7)
ATTACHMENT A
Ordinance No. 2022-218, Laguna Niguel Municipal Code
Amendment (Title 7)
ORDINANCE NO. 2022-218
ORDINANCE OF THE CITY OF LAGUNA NIGUEL AMENDING TITLE 7
OF THE LAGUNA NIGUEL MUNICIPAL CODE, ESTABLISHING
REGULATIONS FOR COMMUNICATION FACILITIES WITHIN THE
PUBLIC RIGHTS-OF-WAY, AND FINDING THIS ORDINANCE TO BE
EXEMPT UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT
(CEQA)
The City Council of the City of Laguna Niguel does hereby ordain as follows:
SECTION 1. Findings:
(a) On September 26, 2018, the Federal Communications Commission ("FCC") adopted its Declaratory Ruling and Third Report and Order ("Report and Order") relating to the placement of a category of communication facilities called "small wireless facilities." The Report and Order went into effect on January 14, 2019. (b) The Report and Order purports to limit local authority over providers of personal wireless services or telecommunications services that utilize public rights of way and public infrastructure, including infrastructure of the City of Laguna Niguel, to install "small wireless facilities". The Report and Order further limits local fees for use of public rights-of-way and public infrastructure to cost-based non-recurring and cost-base recurring fees. The ability of local agencies to regulate use of their rights-of-way is substantially limited under the Report and Order.
Notwithstanding the limitations imposed by the Report and Order, following the Ninth Circuit's decision in City of Portland v. United States, local agencies retain the ability to regulate the aesthetics of facilities, including location, compatibility with surrounding facilities, spacing, and overall size of the facility, provided the aesthetic requirements are reasonable (i.e., technically feasible) and published in advance. (d) It is the intent of the City Council in adopting this Ordinance to amend regulations of the City that conflict with the Report and Order, consistent with State and federal decisional law, and to establish consistent regulations governing deployment of communication facilities in order to more fully protect the public health, safety, and welfare. The City Council declares that it adopts this Ordinance with the understanding that the City expressly reserves all rights to re-enact and/or establish new regulations consistent with State and federal law as it existed prior to adoption of the Report and Order in the event the Report and Order is invalidated, modified, or limited in any way. (e) On July 19, 2022, the City Council conducted and concluded a duly noticed public hearing concerning the adoption of this Ordinance.
SECTION 2. The City Council hereby amends Division 1 (General Provisions) of Title 7 (Highways, Rights-of- Way, and Vehicle) of the Laguna Niguel Municipal Code by -1-
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adding a new Article 8 (Citywide Regulation of Communication Facilities) to read as follows:
"ARTICLE 8 - REGULATION OF COMMUNICATION FACILITIES IN THE
PUBLIC RIGHTS-OF-WAY
Sec. 7-1-140 - Compliance with the City Policy Regarding Permitting Requirements and Development Standards for Communication Facilities Within the Public Rights-Of-Way.
Notwithstanding any provision of the Laguna Niguel Municipal Code to the contrary, all communication facilities that qualify as "small wireless facilities" under 47 C.F.R. § 1.6002(l), as may be amended or superseded, that are proposed to be located within the City, including any public rights of way, are subject to the requirements of the "Policy Regarding Permitting Requirements and Development Standards for Communication Facilities Within the Public Rights-Of-Way", as adopted by City Council resolution and amended from time to time, and all such communication facilities must comply with that Policy.
Sec. 7-1-141 - Violations. Failure to comply with the Policy Regarding Permitting Requirements and Development Standards for Communication Facilities Within the Public Rights-Of-Way constitutes a violation of this Article and this Code. Any violation shall be and hereby is declared a public nuisance and may be subject to summary abatement and citations as set forth the Laguna Niguel Municipal Code, remedies provided under California Code of Civil Procedure Section 731, California Government Code Section 38773, and/or any other remedy available to the City.
Sec. 7-1-142 - Conflicting provisions superseded. The provisions of this Article shall govern and supersede any conflicting provisions of the Laguna Niguel Municipal Code with respect to the permitting and regulation of such communication facilities within the City, including communication facilities in the public rights of way.
SECTION 3. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA). The City of Laguna Niguel has determined that the adoption of this Ordinance is exempt from review under the California Environmental Quality Act ("CEQA") (California Public Resources Code Section 21000, et seq.), pursuant to Section 15061(b)(3) of the CEQA Guidelines, covering activities with no possibility of having a significant effect on the environment. This Ordinance adopts local regulations in a manner that complies with federal regulations. This Ordinance does not directly or indirectly authorize or approve any actual changes in the physical environment. Permit applications for any communication facility would be subject to additional environmental review on a case-by- case basis. In addition, the City of Laguna Niguel has determined that this Ordinance is categorically exempt pursuant to Section 15301 of the CEQA Regulations applicable to minor alterations of existing governmental and/or utility-owned structures. -2-
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SECTION 4. The City Council finds and declares that it is adopting this Ordinance in order to more fully protect and preserve the public health and safety with respect to City rights-of-way in light of the adoption of the Report and Order. Notice is hereby given to any and all persons or entities obtaining a permit pursuant to the Laguna Niguel Municipal Code as amended herein, that the City expressly reserves any and all rights it possessed prior to the adoption of the Report and Order concerning its authority to regulate its public rights-of-way. In the event the Report and Order is invalidated, modified, or limited in any way, the City Council reserves the right, subject to applicable laws and reasonable notice and due process, to modify the terms and conditions applicable to any permit issued hereunder including, but not limited to, the term, fees charged, and scope of any future wireless deployments within the City's rights-of-way.
SECTION 5. SEVERABILITY. If any section, subsection, sentence, clause, or phrase of the Article adopted by this Ordinance is for any reason held to be invalid or unconstitutional by the decision or legislation of any court of competent jurisdiction, or by reason of preemptive legislation, such decision or legislation shall not affect the validity of the remaining portions of the Article. • The City Council declares that it would have passed this Ordinance, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that one or more of the sections, subsections, sentences, clauses, or phrases thereof is declared invalid or unconstitutional.
SECTION 6. CITY CLERK CERTIFICATION. The City Clerk shall certify to the adoption of this Ordinance and cause the same to be posted at the duly designated posting places within the City and published once within fifteen (15) days after passage and adoption as required by law; or, in the alternative, the City Clerk may cause to be published a summary of this Ordinance and post a certified copy of the text of this Ordinance in the Office of the City Clerk five (5) days prior to the date of adoption of this Ordinance, and, within fifteen (15) days after adoption, the City Clerk shall cause to be published the aforementioned summary and shall post a certified copy of this Ordinance, together with the vote for and against the same, in the Office of the City Clerk.
PASSED, APPROVED AND ADOPTED this day of 2022.
Elaine Gennawey, Mayor
ATTEST:
Marissa Asistin, City Clerk
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