City Council
Report
City Council Meeting: May 9, 2023
Agenda Item: 10.C
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To: Mayor and City Council
From: David Martin, Director, Administration
Subject: Introduction and Adoption of Emergency Interim Zoning Ordinance and Introduction and First Reading of Ordinance Amending the Text of the Santa Monica Municipal Code to Confirm the Applicability of Certain Zoning and Health and Safety Regulations to Wireless Facilities Subject to Santa Monica Municipal Code Chapter 9.32, Personal Wireless Service Facilities Recommended Action
Staff recommends that the City Council:
1. Adopt a finding of Categorical Exemption pursuant to Section 15303 (New Construction or Conversion of Small Structures) and 15061(b)(3) (Common Sense Exemption) of the California Environmental Quality Act (CEQA) Guidelines.
2. Introduce and adopt an Emergency Interim Zoning Ordinance to extend interim zoning regulations to confirm the applicability of certain zoning and health and safety regulations to wireless facilities subject to Santa Monica Municipal Code Chapter 9.32, Personal Wireless Service Facilities.
3. Introduce for first reading an Ordinance amending the text of the Santa Monica Municipal Code to confirm the applicability of certain zoning and health and safety regulations to wireless facilities subject to Santa Monica Municipal Code Chapter 9.32, Personal Wireless Service Facilities.
Summary
The City’s existing land use regulations contain an unintended conflict with federal law applicable to a special category of antennas. Federal law limits or preempts local regulations applicable to certain wireless facilities, including, but not limited to, personal wireless service facilities and “over-the-air reception devices” (“OTARDs”). Personal wireless service facilities are facilities for the provision of personal wireless services and are generally infrastructure deployed by cellular network providers. Although commonly 2 of 11
associated with satellite television services, OTARDs also include antennas that provide fixed wireless broadband Internet.
In 2018, the City amended the Zoning Ordinance, specifically Chapter 9.32, Personal Wireless Service Facilities, with the express intent of limiting regulation of personal wireless service facilities to the provisions of Chapter 9.32 and exempting OTARDs from the zoning process for consistency with Federal law. However, the Zoning Ordinance’s regulations for “communications facilities”, which existed prior to the 2018 amendments, could be misconstrued to regulate personal wireless service facilities and OTARDs in violation of federal law. In addition, staff is aware of at least one instance where building permits were not obtained prior to installation of an OTARD, which required code enforcement action to remedy.
On March 14, 2023, to avoid ambiguity in the City’s code and to mitigate the current and immediate threat to public health, safety, and welfare caused by unpermitted installations, Council adopted Emergency Interim Zoning Ordinance 2739 (CCS) (“IZO 2739”), to confirm the City’s intention to limit zoning regulation of personal wireless service facilities and exempt OTARDs from zoning regulations in accordance with Federal law while expressly requiring compliance with applicable public health and safety regulations. The Emergency Interim Zoning Ordinance is set to expire on May 13, 2023, unless extended.
Staff recommends permanent adoption of the amendments contained in the Emergency Interim Zoning Ordinance. These amendments would be declarative of existing law, affirm the policies adopted by the City Council in the Zoning Ordinance, and provide clear guidance on the applicable permitting requirements and procedures for personal wireless service facilities and OTARDs to all stakeholders. The City’s regulation of personal wireless service facilities and OTARDs would not change as a result of the amendments to the Zoning Ordinance. Staff further recommends adoption of an Emergency Interim Zoning Ordinance to extend the interim zoning regulations established by IZO 2739 to allow time for the permanent regulations to become effective.
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Background
Fixed Wireless, Hub and Relay Antennas
Consumers at fixed locations access broadband Internet services through two basic types of connections: wireline or wireless. Wireline broadband involves a wired connection from the Internet service provider (“ISP”) directly to the customer premises.
Wireless broadband involves an antenna on the customer premises that sends/receives to other antennas that connect to the wired Internet network further down the line.
Some wireless ISPs (“WISPs”) rely on “hub and relay” network architecture that involves antennas at a fixed location that receive Internet traffic and distribute it to multiple customer locations. Commonly located on rooftops in commercial and/or densely populated environments, these hub-and-relay systems allow WISPs to place more transmitters and receivers within smaller coverage areas to increase capacity on the network by recycling frequencies more frequently. To encourage competition in the broadband marketplace, the Federal Communications Commission (“FCC”) recently adopted rules that exempt qualifying fixed wireless hub and relay antennas from local regulation.
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Federal Regulations Applicable to OTARDs
The FCC “prohibits laws, regulations, or restrictions imposed by State or local governments or private entities that impair the ability of antenna users to install, maintain, or use [OTARDs].”1 OTARDs include fixed wireless antennas (including hub and relay antennas) that receive or transmit fixed wireless signals.2 Fixed wireless signals are “any commercial non-broadcast communications signals transmitted via wireless technology to and/or from a fixed customer location.”3 To qualify as an OTARD, a fixed wireless antenna must be: (1) less that one meter in diameter or diagonal measurement; (2) installed “on property within the exclusive use or control of the antenna user where the user has a direct or an indirect ownership or leasehold interest”; (3) used to serve the customer on whose premises the antenna is located; and (4) used to provide broadband-only services.4 State and local restrictions on OTARD deployments are prohibited if they: (1) unreasonably delay or prevent OTARD use; (2) unreasonably increase OTARD cost; or (3) preclude a person from receiving or transmitting an acceptable quality signal.5 According to the FCC’s rules, traditional zoning procedural requirements, such as prior approval by local zoning boards, amount to unreasonable delay or prevention.6 The OTARD rule provides two exceptions related to building and safety regulations and historic preservation. Local restrictions may be permitted if related to a “clearly defined, legitimate safety objective that is either stated in the text, preamble, or legislative history 1 In re Updating the Commission’s Rule for Over-the-Air-Reception Devices, Report and Order, WT Docket No. 19-71, 36 FCC Rcd 537, 537-36 at ¶ 2 (Jan. 7, 2021) [hereinafter “2021 OTARD Order”].
2 47 C.F.R. § 1.4000(a)(1)(ii)(A).
3 Id. § 1.4000(a)(2).
4 2021 OTARD Order at ¶ 9.
5 Id. § 1.4000(a).
6 See In re Preemption of Local Zoning Regulation of Satellite Earth Stations and Implementation of Section 207 of the Telecommunications Act of 1996, Report and Order, Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking, IB Docket No. 95-59, CS Docket No. 96-83, 11 FCC Rcd 19276, at ¶ 17 (Aug. 5, 1996). 5 of 11
. . . .”7 Generalized safety concerns without a clear purpose or specific guidance for compliance are not sufficient to avoid federal preemption.8 However, to the extent that fixed wireless hub and relay antennas emit radio frequencies, OTARDs are also subject to compliance with FCC safety regulations for human exposure to radio frequency.9 Additionally, local restrictions may be permitted to the extent necessary to preserve locations included in or eligible for inclusion on the National Register of Historic Places.10 To satisfy either exemption, the regulation must be applied similarly to comparable devices and can be no more burdensome than necessary to achieve the safety or historic preservation objective.11 These exemptions are construed narrowly and the burden is on the local agency to justify that the exemption applies.12 Santa Monica Municipal Code
On August 28, 2018, the City Council adopted Ordinance No. 2583 (the “2018 Ordinance”) which amended Santa Monica Municipal Code Chapter 9.32, Personal Wireless Service Facilities, to update the City’s regulations applicable to wireless facilities. These regulations primarily apply to the infrastructure deployed by cellular network providers for compliance with changes in federal and state laws.
Consistent with federal regulations, the 2018 Ordinance limits regulation of personal wireless facilities to the provisions of Chapter 9.32 and further expressly exempts OTARD antennas from the minor use permit requirements in Chapter 9.32. See SMMC § 9.32.030(B). The intent of the OTARD exemption was to avoid a conflict with federal regulations that prohibit local discretionary zoning permits for qualifying OTARDs. As a 7 47 C.F.R. § 1.4000(b)(1).
8 In re Star Lambert and Satellite Broadcasting and Communications Association of America, Memorandum Opinion and Order, DA97-1554, 12 FCC Rcd 10455, 10464-65 at ¶¶ 34-36 (July 22, 1997) (preempting a local standard that provided “[t]he public health, safety and welfare interests of the inhabitants of the City of Meade shall at all times be taken into consideration prior to the issuance of any permit and if any of these interests might be jeopardized by the issuance of a permit, the Building Official shall clearly define to the applicant his/her reasons for the failure to issue a permit.”).
9 2021 OTARD Order at ¶ 34.
10 47 C.F.R. § 1.4000(b)(2).
11 Id. § 1.4000(b).
12 Id. § 1.4000(g).
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clear expression of the City’s intent, Section 3 of the 2018 Ordinance further provides that “[a]ny provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance.” In other words, any provision of the Santa Monica Municipal Code that purports to require a discretionary zoning decision for OTARD antennas was repealed by the 2018 Ordinance.
However, as explained in more detail below, the Zoning Ordinance’s regulations for the use classification for “communications facilities”, which were in place prior to the 2018 Ordinance, could be misconstrued to include OTARDs.
The same interpretive problem with respect to the use classification for “communication facilities” arises with respect to personal wireless service facilities regulated exclusively under Chapter 9.32. Although Chapter 9.32 generally prohibits traditional cell towers in residential zones, the use classifications and land use tables, which make reference to communication facilities, including the subclassification of antenna and transmission towers, could cause readers to misconstrue the prohibition as extending to additional zoning districts that the City Council did not prohibit in 2018 Ordinance. Therefore, because the 2018 Ordinance did not include text amendments to related provisions in the land-use tables and use classifications that were affected by the changes to Chapter
9.32, the City’s requirements are potentially confusing and should be clarified.
Emergency Interim Zoning Ordinance
On March 14, 2023, Council adopted Emergency Interim Zoning Ordinance 2739 (CCS) to confirm the City’s intention to limit zoning regulation of personal wireless service facilities and exempt OTARDs from zoning regulations in accordance with Federal law while expressly requiring compliance with applicable public health and safety regulations. The Emergency Interim Zoning Ordinance is set to expire on May 13, 2023, unless extended.
Planning Commission Recommendation
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On April 12, 2023, the Planning Commission unanimously adopted Resolution Number 23-009 (PCS) recommending to the City Council that the City Council adopt an Ordinance amending the text of the Zoning Ordinance to confirm the applicability of certain zoning and health and safety regulations to wireless facilities subject to Santa Monica Municipal Code Chapter 9.32, Personal Wireless Service Facilities.
Past Council Actions
Meeting Date Description
08/28/18
(attachment A)
Adoption of Ordinance Repealing and Replacing in its Entirety the Text of Santa Monica Municipal Code Chapter 9.32 Pertaining to Personal Wireless Service Facilities
03/14/23
(attachment B)
Introduction and adoption of an Emergency Interim Zoning Ordinance to Confirm the Applicability of Certain Zoning and Health and Safety Regulations to Wireless Facilities Subject to Santa Monica Municipal Code Chapter 9.32, Personal Wireless Service Facilities
Discussion
The primary conflict between the City’s intended regulation of personal wireless service facilities and exemption of OTARDs with other land use regulations involves the City’s use classification for “communication facilities”. Under SMMC § 9.51.030(D)(4), “communication facilities” are a type of non-residential use that include facilities for the provision of broadcasting and other information relay services through the use of electronic and telephonic mechanism. Given that fixed wireless OTARDs could be construed to provide information relay services through electronic mechanisms, applicants, planners and the public could mistakenly conclude that OTARDs are included in the use classification for communications facilities. The potential for confusion is exacerbated by the fact that the language in the 2018 Ordinance that clearly states that the provisions in Chapter 9.32 supersede all inconsistent provisions elsewhere in the code is uncodified—thus requiring the reader to know that uncodified provisions may govern potential conflicts between provisions adopted at different times and also where to find those uncodified provisions.
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The tension between federal law and local law arises because the City is required by federal law to avoid prohibiting or effectively prohibiting personal wireless service facilities. Further, Federal law requires the City to permit OTARDs in all zones. With respect to OTARDs, under the City’s Zoning Ordinance, uses not listed in the City’s land use tables are prohibited by local law. For example, communication facilities are not listed in the use table for single-unit residential districts and are therefore prohibited.
See e.g., SMMC § 9.07.020, Table 9.07.020. Accordingly, to the extent that communication facilities are construed to include OTARDs, the City’s land use regulations would violate federal law by prohibiting OTARD antennas in single-unit residential zones. With respect to personal wireless service facilities, the City adopted procedures set forth in Chapter 9.32 that prohibit facilities in residential zones unless required by Federal law to make an exception. But to the extent communication facilities are construed to include personal wireless service facilities, the City’s land use regulations may prohibit or effectively prohibit facilities across a broader category of zoning districts that is inconsistent with Federal law.
To comply with federal law applicable to personal wireless service facilities and OTARDs, the proposed text amendments to the Zoning Ordinance are intended to eliminate the ambiguity by clarifying that personal wireless service facilities are exclusively regulated under Chapter 9.32 and that OTARD antennas are not subject to Article 9 (Planning and Zoning). OTARD antennas are expressly subject to building and safety review pursuant to Article 8 (Building Regulations). This would address the current and immediate threat to public health, safety and welfare posed by unpermitted facilities by providing clear guidance on the applicable permits and procedures for OTARD antennas. To further promote public health and safety, OTARDs that transmit radiofrequencies would continue to be subject to SMMC § 8.08.030(k) that authorizes the City to require testing as evidence of compliance with applicable codes and standards, including without limitation all applicable FCC standards for radio frequency emissions. The City’s review authority, consistent with Federal law, would not be altered in any way as a result of the proposed extension of the Emergency IZO or of the proposed Zoning Ordinance text amendments.
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Staff recommends extension of the Emergency IZO for four months until September 13, 2023. The proposed extension would allow Council the opportunity to adopt the proposed Ordinance amending the text of the Municipal Code to confirm the applicability of certain zoning and health and safety regulations to wireless facilities subject to Santa Monica Municipal Code Chapter 9.32, Personal Wireless Service Facilities.
Zoning Text Amendment Findings
1. The amendments to the text of the Zoning Ordinance are consistent with the General Plan and any applicable Specific Plans in that the proposed amendments are declarative of existing law, affirm the existing policies in the Zoning Ordinance, and provide clear guidance on the applicable permitting requirements and procedures for personal wireless service facilities and “over-the-air reception devices” (“OTARDs”) to all stakeholders. The amendments will not change the regulation of personal wireless service facilities and OTARDs.
2. The amendments to the text of the Zoning Ordinance are consistent with the purpose of the Zoning Ordinance to promote the growth of the City in an orderly manner and to promote and protect the public health, safety, and general welfare in that the amendments will confirm the City’s intention to limit zoning regulation of personal wireless service facilities and exempt and OTARDs from zoning regulations in accordance with Federal law while expressly requiring compliance with applicable public health and safety regulations.
Environmental Review
The text amendments that address personal wireless service facilities and OTARDs are exempt from CEQA pursuant to Section 15303 New Construction or Conversion of Small Facilities, of the State CEQA Guidelines. Section 15303 (Class 3) exempts the installation of wireless communications equipment at multiple locations. (See Aptos Residents Association v. County of Santa Cruz (2018) 20 Cal.App.5th 1039; Robinson v.
City and County of San Francisco (2012) 208 Cal.App.4th 950; San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012; Don’t Cell Our Parks v. City of San Diego, (2018) 21 Cal.App 5th 338. Personal wireless service facilities 10 of 11
consist of the “construction and location of limited numbers of new, small facilities or structures, or the “installation of small new equipment and facilities in small structures” within the meaning of the Class 3 exemption. The text amendments that address OTARDs are exempt from CEQA pursuant to CEQA Guidelines Section 15268 Ministerial Projects. The approval of OTARDs involves a non-discretionary review process and the issuance of building permits, which are presumed to be ministerial.
Additionally, the text amendments that address OTARDs and personal wireless service facilities are also exempt from CEQA pursuant to CEQA Guidelines Section 15061(b)(3) Review for Exemptions – Common Sense Rule. It can be seen with certainty that the adoption of the text amendments will not have a significant effect on the environment because it will not allow for the development of any new or expanded facilities anywhere other than where they were previously allowed under existing local law. Therefore, the text amendments to permit OTARDs and personal wireless service facilities are categorically exempt from CEQA.
Financial Impacts and Budget Actions
There is no immediate financial impact or budget action necessary as a result of the recommended action.
Prepared By: Tony Kim, Principal Planner
Approved Forwarded to Council
Attachments:
A. City Council Meeting - August 28, 2018 (Web Link)
B. City Council Meeting - March 14, 2023 (Web Link)
C. CDD--IZO re Wireless Facilities Ext 050923
D. CDD--ZO Amendments re Wireless Facilities 050923
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E. PowerPoint Presentation