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HomeMy WebLinkAbout2019-03 ORDINANCE NO. 2019-03 ADDING SECTION 32-70.4d TO THE DANVILLE MUNICIPAL CODE TO REGULATE SMALL WIRELESS FACILITIES PURSUANT TO APPLICABLE FEDERAL LAWS The Danville Town Council does ordain as follows: SECTION 1. FINDINGS. The Town Council finds that: 1. Pursuant to Article XI, section 7 of the California Constitution and sections 36931 et seq. of the California Government Code, the Town Council may make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws. 2. California Government Code sections 36934 and 36937 authorize the Town Council to adopt an urgency ordinance for the immediate preservation of the public peace, health, or safety. 3. Significant changes in federal law that affect local authority over wireless communications facilities (“WCFs”) have occurred since the Town adopted Ordinance No. 2018-07, including but not limited to: • On August 2, 2018, the FCC adopted a declaratory ruling that formally prohibited express and de facto moratoria for all telecommunications services and facilities under 47 U.S.C. § 253(a) and directed the Wireline Competition Bureau and the Wireless Telecommunications Bureau to hear and resolve all complaints on an expedited basis; • On September 26, 2018, the FCC adopted a declaratory ruling and report and order that, among other things, creates a new regulatory classification for small wireless facilities, requires State and local governments to process applications for small wireless facilities within 60 days or 90 days, establishes a national standard for an effective prohibition and provides that a failure to act within the applicable timeframe presumptively constitutes an effective prohibition; • The FCC Order became effective in part on January 14, 2019, and while litigation challenging the FCC Order has been filed, neither the courts nor the FCC have agreed to stay the Order. The FCC Order became fully effective on April 15, 2019. 4. In addition to the changes described above, new federal laws and regulations that would further alter local authority over WCFs are currently pending, including without limitation: • On March 30, 2017, the FCC issued a Notice of Proposed Rulemaking (WT Docket No. 17-79, WC Docket No. 17-84) and has acted on some of the noticed issues referenced above, but may adopt forthcoming rulings and/or orders that further limit local authority over wireless facilities deployment; DocuSign Envelope ID: A6E95F66-4813-4B74-8E74-D1F479D0A857 PAGE 2 OF ORDINANCE NO. 2019-03 • On June 28, 2018, United States Senator John Thune introduced and referred to the Senate Committee on Commerce, Science and Transportation the “STREAMLINE Small Cell Deployment Act” (S. 3157) that, among other things, would apply specifically to small cell WCFs and require local governments to review applications based on objective standards, shorten the applicable timeframes for review, require all proceedings to occur within such timeframes, and provide a “deemed granted” remedy for a failure to act within the applicable timeframe. 5. Given the rapid and significant changes in federal and State law, the actual and effective prohibition on moratoria to amend local policies in response to such changes and the significant adverse consequences for noncompliance with federal and State law, the Town Council desires to amend Danville Municipal Code Chapter 32-70, to allow greater flexibility and responsiveness to new federal and State laws in order to preserve the Town’s traditional authority to the maximum extent practicable. 6. On April 16, 2019, the Town Council held a duly noticed public hearing on this Ordinance, reviewed and considered the staff report, other written reports, public testimony and other information contained in the record, which, taken together, are an adequate and appropriate evidentiary basis for the actions taken in this Ordinance. 7. The existence of the FCC Order and the new requirements imposed on local jurisdictions in reviewing and acting upon applications for small cell wireless facilities warrant adoption of this Ordinance and accompanying Policy as an urgency ordinance pursuant to Government Code Section 36937(b). The Town’s existing ordinance and design guidelines applicable to any wireless facility application contain processes and standards that are inconsistent with timelines and standards unique to small cell facilities as provided for in the FCC Order. The new shot clock provision of the Order became effective on January 14, 2019 and the new provisions affecting aesthetic review become effective April 15, 2019. The Town is also aware that wireless providers are preparing applications to submit in the near future. Failure act within the prescribed shot clocks may result in either an automatic approval or significant legal presumptions against the Town that render legal defenses significantly more difficult and costly. In addition, federal law requires state and local agencies to cite their own local authority and substantial evidence for any denial. Failure to provide such authority or evidence may result in a reversal and/or mandates to approve applications by a federal court. Accordingly, the adoption of this Ordinance as an urgency ordinance is necessary to preserve the public health, safety, and welfare as, without such adoption, wireless facilities approved without updated regulations could create: (a) land use conflicts and incompatibilities between comparable facilities; (b) visual and aesthetic blight and public safety concerns arising from the excessive size, noise or lack of DocuSign Envelope ID: A6E95F66-4813-4B74-8E74-D1F479D0A857 PAGE 3 OF ORDINANCE NO. 2019-03 camouflaging of wireless facilities; and (c) traffic and pedestrian safety hazards due to the potentially unsafe nature of unregulated siting of wireless facilities in the public rights-of-way. 8. This Ordinance is consistent with the General Plan, Danville Municipal Code, and applicable federal and State law. 9. This Ordinance will not be detrimental to the public interest, health, safety, convenience or welfare. SECTION 2. ADDING SECTION 32-70.4d TO THE DANVILLE MUNICIPAL CODE. A new Section 32-70.4.d is hereby added to the Danville Municipal Code to read as follows: 32-70.4 Applicability and Exemptions d. Special Provisions for Small Wireless Facilities in the Public Right-of-Way. Notwithstanding any other provision of this chapter, including any exemption under section 32-70.4.b, all small wireless facilities as defined by the FCC in 47 C.F.R. § 1.6002(l), as may be amended or superseded, located in the public right-of-way are subject to a permit as specified in a Town Council policy to be adopted and amended by Town Council resolution. All small wireless facilities in the public right-of-way shall comply with the Town Council’s policy. If the policy is repealed, an application for a small wireless facility in the public right-of-way shall be processed pursuant to this chapter. SECTION 3. CEQA. Pursuant to California Environmental Quality Act (“CEQA”) Guidelines § 15378 and California Public Resources Code § 21065, the Town Council finds that this Ordinance is not a “project” because its adoption is not an activity that has the potential for a direct physical change or reasonably foreseeable indirect physical change in the environment. Accordingly, this Ordinance is not subject to CEQA. Even if this Ordinance qualified as a “project” subject to CEQA, the Town Council finds that, pursuant to CEQA Guidelines § 15061(b)(3), there is no possibility that this project will have a significant impact on the physical environment. This Ordinance merely amends the Danville Municipal Code to authorize the adoption of regulations related to WCFs. This Ordinance does not directly or indirectly authorize or approve any actual changes in the physical environment. Applications for any new WCF or change to an existing WCF would be subject to additional environmental review on a case-by-case basis. Accordingly, the Town Council finds that this Ordinance would be exempt from CEQA under the general rule. DocuSign Envelope ID: A6E95F66-4813-4B74-8E74-D1F479D0A857 PAGE 4 OF ORDINANCE NO. 2019-03 SECTION 4. CONFLICTS WITH PRIOR ORDINANCES. If the provisions in this Ordinance conflict in whole or in part with any other Town regulation or ordinance adopted prior to the effective date of this section, the provisions in this Ordinance will control. SECTION 5. CODIFICATION. Section 2 of this ordinance shall be codified in the Danville Municipal Code. SECTION 6. SEVERABILITY. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Danville Town Council hereby declares that they would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases was declared invalid. SECTION 7. PUBLICATION AND EFFECTIVE DATE. The City Clerk shall have this ordinance published in a newspaper of general circulation within 15 (fifteen) days after adoption. Pursuant to Government Code Section 36937(b), this ordinance shall become effective immediately. DocuSign Envelope ID: A6E95F66-4813-4B74-8E74-D1F479D0A857 PAGE 5 OF ORDINANCE NO. 2019-03 The foregoing Ordinance was approved and adopted by the Danville Town Council on April 16, 2019, by the following vote: AYES: NOES: ABSTAIN: ABSENT: MAYOR APPROVED AS TO FORM: ATTEST: CITY ATTORNEY CITY CLERK CLERK'S CERTIFICATE I, Marie Sunseri, City Clerk of the Town of Danville, hereby certify that the foregoing is a true and accurate copy of Ordinance No. 2019-03 of said Town and that said ordinance was published according to law. Dated: __________________________ _________________________________ City Clerk of the Town of Danville DocuSign Envelope ID: A6E95F66-4813-4B74-8E74-D1F479D0A857 None None Arnerich, Blackwell, Morgan, Stepper, Storer None 4/17/2019