CITY COUNCIL STAFF REPORT
Meeting Date: October 02, 2023
TO: THE HONORABLE MAYOR AND CITY COUNCILMEMBERS
SUBJECT: PUBLIC HEARING AND INTRODUCE ORDINANCE NO.___
AMENDING PLEASANT HILL MUNICIPAL CODE CHAPTER 18.67,
WIRELESS TELECOMMUNICATIONS FACILITIES, AND RELATED
AMENDMENTS TO SECTION 18.85.010, ZONING PERMIT PURPOSE
AND APPLICABILITY, SECTION 18.95.020, USE PERMIT APPROVAL AUTHORITY, AND CHAPTER 18.140, DEFINITIONS
SYNOPSIS
An amendment to the existing Wireless Telecommunications Facilities Ordinance (Chapter
18.67) is proposed to comply with recent modifications to federal and state law, related to processing wireless telecommunications facility applications. Associated conforming changes are also proposed to Section 18.85.010 (purpose and applicability for zoning permits), Section
18.95.020 (approval authority for use permits), and Section 18.140 (definitions). The Planning Commission reviewed the proposed amendments in August 2023 and recommended approval to the City Council. The City Council is requested to receive public comments and introduce the ordinance.
DISCUSSION
Background
The City’s Wireless Telecommunications Facilities ordinance was last updated comprehensively in 2016, with other minor updates occurring in 2018. Since then, numerous federal and state laws and regulations have taken effect, which (among other impacts) significantly restricted local control over the permitting and placement of wireless telecommunication facilities. Noteworthy features of these recent regulations include the following:
1. Ban on Moratoria: On August 2, 2018, the Federal Communications Commission (“FCC”) adopted a Third Report & Order and Declaratory Ruling, 33 FCC Rcd. 7705 (rel. Aug. 3, 2018) (“Moratoria Order”), that, among other provisions, contained a declaratory ruling prohibiting express and de facto moratoria for all personal wireless services, telecommunications services and their related facilities under 47 U.S.C. § 253(a) and directed the Wireless Telecommunications Bureau and Wireline Competition Bureau to hear and resolve all complaints on an expedited basis. The declaratory ruling in the Moratoria Order was made effective upon release. This means that there can be no pause in accepting or processing applications to allow a city to study and address potential issues.
2. Shot Clocks and Deemed Granted Remedies: The FCC has adopted shot clocks (i.e., timelines) within which a local government must act on wireless telecommunication facility (WTF) applications. The most recent shot clocks have focused on applications for small WTFs and modifications to existing WTFs.
2009 Shot Clocks: In 2009, the FCC adopted a Declaratory Ruling, 24 FCC Rcd. 18994 (rel. Nov. 18, 2009), to clarify existing federal law requiring local governments to act on WTF applications within a reasonable period of time. In that Declaratory Ruling, the FCC established two shot clocks for local action on wireless facilities applications: (1) a 60-day shot clock for collocations; and (2) a 150-day shot clock for all other types of WTF applications.
The State of California later adopted Assembly Bill 57 (AB 57) (Gov. Code 65964.1), which that took effect on January 1, 2016, and created a “deemed granted” remedy (effective January 1, 2016, for collocations and “other” applications; effective January 1, 2022, for small cells) if the local government failed to act on an application during the time period allowed under the applicable FCC shot-clocks.
This “deemed granted” remedy is available under these shot clocks for any application except those proposed for placement on fire department facilities.
Section 6409(a) Requests: In 2012, Congress adopted a law (codified as 47 CFR Sec. 1455) requiring that certain applications to modify or add to existing WTFs must be approved at the local level. In 2014, the FCC adopted an implementing Order, including height and size criteria and a 60-day shot clock to process these Section 6409 (a) requests or “eligible facilities requests” (29 FCC Rcd. 12865). More recently, the FCC adopted clarifications and changes to its rules to further facilitate these types of deployments. A failure to act within this FCC shot clock period can result in the application being deemed approved under federal law.
Small Wireless Facilities Shot Clocks: Small wireless facilities are defined as wireless facilities that are no more than 50 feet high and 28 cubic feet in volume, among other specific qualifications. Small wireless facilities are typically deployed in the public rights-of-way on streetlights and utility poles and often utilize 5G technology. On September 26, 2018, the FCC adopted a Declaratory Ruling and Third Report and Order, 33 FCC Rcd. 9088 (rel. Sep. 27, 2018) (“Small Cell Order”), which, among other provisions:
Created new, shorter (60-day and 90-day) shot clocks for small wireless facilities (as defined in the Small Cell Order);
Interpreted existing shot clock regulations to require local public agencies to issue all relevant permits and authorizations within this period; Established a national standard for an effective prohibition related to small wireless facilities that replaced the existing “significant gap” test adopted by the United States Court of Appeals for the Ninth Circuit; and Provided that a failure to act within the applicable timeframe presumptively constitutes an effective prohibition.
The Small Cell Order went into effect in part on January 14, 2019, and fully on April 15, 2019. On August 12, 2020, a three-judge panel of the Ninth Circuit Court of Appeals upheld the Moratoria Order and significant portions of the Small Cell Order, including the shorter shot clocks and remedies for failing to meet a shot clock. (City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020) (“City of Portland”)). On October 22, 2020, the Ninth Circuit Court of Appeals denied a petition for further Ninth Circuit review of the above-referenced panel’s decision by the entire Ninth Circuit judiciary known as “en banc” review. The Supreme Court of the United States also denied a petition to hear an appeal.
In 2021, the California legislature enacted Assembly Bill 537 (AB 537) amending Gov. Code 65964.1, which further expanded the reach of AB 57’s deemed granted remedy to apply to small wireless facilities applications. Following AB 537, a deemed approved remedy is available either under state law or under federal law (for Section 6409(a) applications) for each and every WTF application type – which is triggered when the local government fails to render a final decision on a WTF application and issue all necessary approvals before the applicable FCC shot clock deadline. The only exception is that the state law “deemed granted” remedy is not applicable to either collocation or siting WTF applications proposed for placement on fire department facilities.
3. Limits on Design Standards: In addition to the foregoing, the Small Cell Order placed limits on aesthetic regulations for small WTFs, including undergrounding. Under the Small Cell Order, local aesthetic regulations are permissible so long as they are reasonable, no more burdensome than those applied to other types of infrastructure deployments, objective, and published in advance (so that applicants know the applicable small WTF aesthetic requirements).
In City of Portland decision discussed above, the Court invalidated certain portions of the FCC’s Small Cell Order that imposed new rules for aesthetic standards for small wireless facilities. Now, a city’s aesthetic regulations for small WTFs will not be preempted if they are (1) reasonable (technically feasible); and (2) published in advance.
4. Limits on Fees: State law requires WTF-related permits and/or application fees to be cost-based. The Small Cell Order declared that all WTF-related fees for small wireless facilities (including permit fees and rental fees for use of government-owned infrastructure, such as streetlights) must be based on a reasonable approximation of the local government’s costs, such that only objectively reasonable costs are factored into those fees, and fees are no higher than the fees charged to similarly situated competitors in similar situations. The FCC established presumptively reasonable fee levels for small wireless facilities (called “safe harbors”) that include: non-recurring fees equal to $500 for a single application for up to five collocations, plus $100 for each additional collocation, and $1,000 for each new pole. Recurring fees for small wireless facilities for attachment to a local government’s poles are presumed reasonable if equal to $270 per facility/per year, including the fee for attachment to the infrastructure and use of the public right-of-way.
Planning Commission Hearing: On August 22, 2023, the Planning Commission adopted Resolution No. 18-23 forwarding a recommendation to the City Council to adopt the proposed ordinance amendment (Attachment C). The City Attorney has also reviewed all proposed amendments.
Analysis
The proposed changes in the ordinance amendment generally focus on clarifying/updating terms and definitions and streamlining the review process of wireless applications to comply with the established federal shot clocks for City action to avoid potential “deemed granted” remedies.
Updating/Clarifying Terms and Definitions:
The following proposed amendments are either a direct requirement from state and federal regulations, or are necessary to add clarification to the ordinance and do not include any changes to the processing of wireless telecommunications applications:
Chapter 18.67 – Wireless Telecommunication Facilities
1. Definitions (Section 18.67.020): The proposed ordinance amendment would eliminate non-relevant and outdated definitions and incorporate new definitions in line with state and federal law, such as “small wireless facility,” and clarify the definition of “substantial change” for Section 6409(a) modifications.
2. Review of wireless telecommunication facilities within the public right-of-way vs. public property (Sections 18.67.120.A and 18.67.120.B): Clarify that wireless telecommunications facilities located in the public right-of-way are subject to an Encroachment Permit, reviewed and issued by the City Engineer. Conversely, wireless telecommunications facilities located on publicly owned property are subject to the same provisions as those located on privately owned property.
3. Application Submittal Requirements (Section 18.67.130): The proposed ordinance amendment would eliminate specific reference to the application submittal requirements and authorizes the City Planner to generate and periodically update the wireless facility application form, which can be found on the City’s website under “Planning Application Forms & Information; Wireless Telecommunication Facilities”.
Section 18.85.010 – Zoning Permit Purpose and Applicability
4. The proposed amendment would clarify that a zoning permit is required for Section 6409(a) modifications to an existing wireless telecommunications facility.
Section 18.140 – Definitions
5. The proposed amendment would eliminate references to the definitions for “Antenna, building- or structure-mounted” “Antenna, ground-mounted” “Antenna, satellite” and “Antenna structure, monopole” from the Zoning Code’s general definition section, Section 18.140.010 and place wireless ordinance specific defined terms in Chapter
18.67. Section 18.140.010 will be automatically adjusted alphabetically.
Streamlining Processes:
While the new state and federal regulations establish shot clock timing for reaching a final decision on wireless telecommunication applications, the City has discretion to establish the application review process, including the appropriate permit type, review body and appeal process. Therefore, the City is proposing several changes to the review and appeal process to streamline the review process of certain applications to ensure compliance with the specific shot clock timing.
For reference, the City must review the application, make a decision, and issue all relevant permits within the established shot clock timeframe (including any appeals).
The following applications generally fall under these specific shot clock review times:
Shot Clock Timing Application Types
60 days Small Cell wireless telecommunications facilities located on and existing pole
90 days Small Cell wireless telecommunications facilities located on a new or replacement pole
Collocation requests
150 days New monopoles
Proposed changes are as follows:
Chapter 18.67 – Wireless Telecommunication Facilities
1. Wireless Facilities in the Right-of-Way - Process for Granting Exceptions (Section
18.67.120.A(1) and 18.67.160): Currently, all proposed facilities within the public right-of-way must comply with the City’s “Guidelines for Wireless Communication Facilities” (Attachment C). Under the current process, the City Engineer reviews applications for all proposed facilities in the public right-of-way, and Planning Commission reviews any exceptions or deviations from the guidelines. The proposed ordinance amendment instead allows the City Engineer to continue to review applications for facilities in the public right-of-way, and also grant exceptions or deviations from the guidelines for applications within the right-of-way, instead of the Planning Commission, which would streamline the process to ensure that the City will be able to meet the required review timeline of 60 or 90 days for these application types.
2. Minor Use Permit Requirement (Section 18.67.120.B(2)): The proposed ordinance amendment introduces a minor use permit process with Zoning Administrator approval for any small wireless telecommunications facilities involving new or replacement structures, or for wireless facility applications that involve the collocation of a wireless telecommunications facility onto an existing structure that does not otherwise qualify for a Section 6409(a) permit or does not already have a wireless facility on it (such as rooftop or façade mounted wireless facilities or the addition of large new facilities to an existing macro cell site). This streamlined process would ensure that the City will be able to meet the required review timeline of 60 or 90 days for these application types. The existing use permit process would remain for applications subject to a 150-day review timeline, such as new monopoles.
3. Appeals Process (Section 18.67.370): The proposed ordinance amendment streamlines the appeal process for wireless telecommunication facilities by requiring that any decision by the zoning administrator or planning commission (use permits or minor use permits) be appealed directly to the City Council. This eliminates potential multi-step appeal processes and ensures that the City Council is the final hearing body on all appeals regardless of the original decision body. This amendment would streamline the process to ensure that the City will be able to meet the required review timeline for applications.
Section 18.95.020 – Use Permit Approval Authority
4. The proposed amendment would require all proposed wireless facilities or modifications that do not qualify for a minor use permit or zoning permit, as specified by Chapter 18.67 to obtain a use permit. This amendment is directly related to the introduction of a minor use permit process discussed above.
CEQA
Pursuant to Section 15061(b)(3) of the Guidelines for the Implementation of the California Environmental Quality Act (CEQA) of 1970, as amended, the lead agency has determined that the proposed activity is exempt from CEQA. The City as the lead agency has determined with certainty that the proposed activity will not have a significant effect on the environment as the proposed amendments do not directly approve any physical development and are intended to comply with applicable State provisions.
FISCAL IMPACT
None
PUBLIC CONTACT
Public contact was made through posting of the City Council agenda on the City’s official notice bulletin board, at the Pleasant Hill Senior Center, and at the Pleasant Hill Police Department.
Notice of the meeting was also provided in the East Bay Times Newspaper published on September 2, 2023 and September 18, 2023 (Attachment D), displayed on A-frames at the Police Station and Pleasant Hill Library, displayed on the City Hall changeable message board sign, and on the City’s web page. The agenda, staff report, and attachments are posted on the City’s webpage.
PUBLIC COMMENTS
None
RECOMMENDED CITY COUNCIL ACTION
Receive public comment and introduce the ordinance.
ALTERNATIVES TO RECOMMENDED ACTION
1. Continue the item to a later date with direction provided to Staff.
2. Do not introduce the Ordinance.
ATTACHMENTS
Attachment A Proposed Ordinance (strikeout/underline)
Attachment B Proposed Ordinance (clean)
Attachment C Guidelines for Wireless Communication Facilities Attachment D Planning Commission Resolution No. 18-23
Attachment E Public Hearing Notice
Prepared by: Haley Croffoot, Senior Planner
Reviewed by: Troy Fujimoto, City Planner
Approved by: Ethan Bindernagel, City Manager