2019-12 Amend Ch. 9.70 Small Wireless Facilitiesi
ORDINANCE 2019-12
AN URGENCY ORDINANCE OF THE CITY OF ENCINITAS,
CALIFORNIA, AMENDING ENCINITAS MUNICIPAL CODE
CHAPTER 9.70 FOR THE REGULATION OF SMALL
WIRELESS FACILITIES AND OTHER INFRASTRUCTURE
DEPLOYMENTS IN THE PUBLIC RIGHTS-OF-WAY
WHEREAS, pursuant to the California Constitution, Article XI, section 7; California
Government Code section 37100 and other applicable law, the City Council of the City of
Encinitas ("City Council") may make and enforce within its limits all local, police, sanitary and
other ordinances, resolutions and other regulations not in conflict with general laws;
. WHEREAS, California Government Code sections 36934 and 36937 authorize the City
.Council to adopt an urgency ordinance for the immediate preservation of the public peace,
health, or safety;
WHEREAS, on September 12, 2001, the City Council adopted Ordinance No. 2001-11,
which added Chapter 9.70 to the Encinitas Municipal Code to regulate wireless communication
facilities;
WHEREAS, since the City adopted chapter 9.70, significant changes have occurred in
federal and state laws that affect local authority over personal wireless service facilities and
other related infrastructure deployments, which includes, without limitation, the following:
• On November 18, 2009, the Federal Communications Commission ("FCC") adopted
a Declaratory Ruling in the proceeding titled Petition for Declaratory Ruling to Clarify
Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, 24 FCC Rcd.
13994 (rel. Nov. 18, 2009) (the "2009 Declaratory Ruling"), which imposed
procedural restrictions on state and local permit application reviews such as
presumptively reasonable times for action. After a petition for judicial review, the U.S.
Supreme Court in City of Arlington v. FCC, 569 U.S. 290 (2013), upheld the FCC's
authority to issue these rules;
• On February 22, 2012, Congress adopted Section 6409(a) of the Middle Class Tax
Relief and Job Creation Act, codified as 47 U.S.C. § 1455(a), which amended the
Communications Act to mandate approval for certain "eligible facilities requests" to
collocate and/or modify existing wireless towers and/or base stations;
• On October 17, 2014, the FCC adopted a Report and Order in the rulemaking
proceeding titled Acceleration of Broadband Deployment by Improving Wireless
Facilities Siting Policies, 29 FCC Rcd. 12865 (rel. Oct. 21, 2014) (the "2014
Infrastructure Order"), which implemented regulations for "eligible facilities requests"
and imposed new procedural restrictions on application reviews. The U.S. Court of
Appeals for the Fourth Circuit in Montgomery Cnty. v. FCC, 811 F.3d 121 (4th Cir.
2015), denied petitions for review;
• On October 9, 2015, Governor Edmund Brown signed into law Assembly Bill No. 57
(Quirk), codified as California Government Code § 65964.1, which creates a
"deemed-approved" remedy for when a local government fails to act on applications
for certain wireless facilities within the presumptively reasonable times established in
the 2009 Declaratory Ruling and 2014 Infrastructure Order;
• On August 2, 2018, the FCC adopted a Third Report and Order and Declaratory
Ruling in the rulemaking proceeding titled Accelerating Wireline and Wireless
Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC
Rcd. 7705 (rel. Aug. 3, 2018) (the "Moratorium Order"), that formally prohibited
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;
• On September 26, 2018, the FCC adopted a Declaratory Ruling and Third Report
and Order in the same rulemaking proceeding, --- FCC Rcd. ---, FCC 18-133 (rel.
Sep. 27, 2018) (the "Small Cell Order"), which, among many other things, creates a
new regulatory classification for small wireless facilities, alters existing "shot clock"
regulations to require local public agencies to do more in less time, establishes a
national standard for an effective prohibition that replaces the existing "significant
gap" test adopted by the United States Court of Appeals for the Ninth Circuit and
provides that a failure to .act within the applicable timeframe presumptively
constitutes an effective prohibition;
WHEREAS, in addition to the changes described above, local authority may be further
impacted by other pending legislative, administrative and/or judicial proceedings, which
includes, without limitation, the following:
• The "STREAMLINE Small Cell Deployment Act" (S. 3157) proposed by Senator John
Thune that, among other things, would apply specifically to "small wireless facilities"
and require local governments to review applications based on objective standards,
shorten the shot clock timeframes, require all local undertakings to occur within the
shot clock timeframes and provide a "deemed granted" remedy for failure to act
within the applicable shot clock;
• Further orders and/or declaratory rulings by the FCC from the same rulemaking
proceeding as the Moratorium Order and Small Cell Order;
• Multiple petitions for reconsideration and judicial review filed by state and local
governments against the Moratorium Order and Small Cell Order, which could cause
the rules in either order to change or be invalidated;
WHEREAS, the City has received a substantial number of applications for so-called
"small wireless facilities" to be installed within the public rights-of-way, and has been informed
by several wireless service providers and infrastructure providers that more such facilities will be
necessary for their deployments;
WHEREAS, given the rapid and substantial changes in applicable law, the active and
effective federal prohibition on reasonable moratorium ordinances to allow local public agencies
to study these changes and develop appropriate responses and the significant adverse
consequences for noncompliance with these changes in applicable law, the City Council desires
to amend the Encinitas Municipal Code to allow greater flexibility and responsiveness to new
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federal and state laws in order to preserve the City's traditional authority to the maximum extent
practicable; and
WHEREAS, on August 21, 2019, the City Council held a duly noticed public hearing on
the proposed urgency ordinance, reviewed and considered the staff report, other written reports,
public testimony and other information contained in the record.
NOW THEREFORE, the City Council of the City of Encinitas, California, does ordain as
follows:
SECTION ONE:
The City Council finds that:
A. The facts set forth in the recitals are true and correct and incorporated herein by
this reference. The recitals constitute findings in this matter and, together with the
staff report, other written reports, public testimony and other information
contained in the record, are an adequate and appropriate evidentiary basis for
the actions taken in this urgency ordinance.
B. State and federal law have changed substantially since the City last adopted
regulations for wireless facilities in the City.
C. State and federal law requires local governments to act on permit applications for
wireless facilities within a prescribed time period. Failure act within the prescribed
timeframes may result in either an automatic approval or significant legal
presumptions against the City that render legal defenses significantly more
difficult and costly.
D. 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.
E. The City lacks regulations for small wireless facilities in the public right-of-way
and lacks procedures that complete review of applications within the shot clocks
that govern the time in which the City must approve or deny a wireless facility
application.
F. The expeditious adoption of wireless facilities regulations are necessary to
protect the City's visual character from potential adverse impacts or visual blight
created or exacerbated by telecommunications infrastructure and promote
access to high-quality, advanced telecommunication services for the City's
residents, businesses and visitors.
G. The adoption of this urgency ordinance is necessary to preserve the public
health, safety, and welfare as, without such adoption, wireless facilities approved
without updated regulations could create: (1) land use conflicts and
incompatibilities between comparable facilities; (2) visual and aesthetic blight and
public safety concerns arising from the excessive size, noise or lack of
camouflaging of wireless facilities; and (3) traffic and pedestrian safety hazards
due to the potentially unsafe nature of unregulated siting of wireless facilities in
the public rights-of-way.
H. This urgency ordinance is consistent with the General Plan, Encinitas Municipal
Code and applicable federal and state law.
I. This urgency ordinance will not be detrimental to the public interest, health,
safety, convenience or welfare.
SECTION TWO:
Pursuant to California Public Resources Code § 21065 and the California Environmental
Quality Act ("CEQA") Guidelines § 15378, the City Council finds that this urgency
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 urgency ordinance is not subject to CEQA.
Even if this urgency ordinance qualified as a "project" subject to CEQA, the City 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 urgency
ordinance merely amends the Encinitas Municipal Code to authorize the City Council to
regulate small wireless facilities and other infrastructure deployments. This urgency
ordinance does not directly or indirectly authorize or approve any actual change's in the
physical environment. Applications for any new small wireless facility or other
infrastructure deployment, and/or change to an existing small wireless facility or other
infrastructure deployment, would be subject to additional environmental review on a
case-by-case basis. Accordingly, the City Council finds that this urgency ordinance
would be exempt from CEQA under the general rule.
SECTION THREE:
Section 9.70.020 of the Encinitas Municipal Code is amended to read as follows:
9.70.020 Applicability
A. This chapter applies to all wireless communications facilities existing and
proposed to be located within the corporate limits of the City of Encinitas California.
Including personal wireless services as defined by the TCA and licensed by the Federal
Communications Commission, including, but not limited to, the types commonly known
as cellular, personal communications services ("PCS"), specialized mobile radio
("SMR"), enhanced specialized mobile radio ("ESMR"), paging, land based repeaters for
satellite broadcast services, micro-cell antennae and similar systems which exist now or
may be developed in the future and exhibit technological characteristics similar to them.
B. Wireless communications facilities proposed to be located in Encinitas may be
constructed only pursuant to a permit issued by the City in accordance with this chapter
and shall comply with Municipal Code Title 30 "Zoning" and all other applicable laws and
regulations.
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C. This chapter does not apply to hand held mobile phones, satellite dishes,
amateur radio facilities, receiving antennae for AM and FM radio and television, which
may be governed by other law including, but not limited to, Encinitas Municipal Code
Chapters 28.08, 30.16 and 30.48.
D. Notwithstanding any other provision of this chapter, all "small wireless facilities"
as defined by the FCC in 47 C.F.R. § 1.6002(1), as may be amended or superseded, are
subject to a permit as specified in a City Council Policy, which may be adopted,
amended and/or repealed by a resolution of the City Council. All small wireless facilities
shall comply with the City Council's policy. If the City Council policy is repealed and not
replaced, an application for a small wireless facility shall be processed pursuant to this
chapter.
SECTION FOUR:
If the provisions in this urgency ordinance conflict in whole or in part with any other City
regulation or ordinance adopted prior to the effective date, the provisions in this urgency
ordinance will control.
SECTION FIVE:
If any section, subsection, paragraph, sentence, clause, phrase or term ('each a
"Provision") in this urgency ordinance, or any Provision's application to any person or
circumstance, is held illegal, invalid or unconstitutional by a court of competent
jurisdiction, all other Provisions not held illegal, invalid or unconstitutional, or such
Provision's application to other persons or circumstances, shall not be affected. The City
Council declares that it would have passed this urgency ordinance, and each Provision
therein, whether any one or more Provisions be declared illegal, invalid or
unconstitutional.
SECTION SIX:
This urgency ordinance is enacted pursuant to the authority conferred upon the City
Council by Government Code Section and shall be in full force and effect upon its
adoption by a four-fifths (4/5) vote of the City Council.
SECTION SEVEN:
No later than 15 days after its adoption, this urgency ordinance (or a summary) together
with the names of each City Council members who voted for or against this urgency
ordinance shall be published in the manner required by law.
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PASSED AND ADOPTED this 21St day of August, 2019, by the following vote, to wit:
AYES: Blakespear, Hinze, Hubbard, Kranz, Mosca
NAYS: None
ABSENT: None
ABSTAIN: None
Catherine S. Blakespear, Mayor
City of Encinitas, California
ATTEST AND CERTIFICATE:
I certify that this is a true and correct copy of Ordinance 2019-12, which has been published
pursuant to law.
Kathy Holl od, C'N Clerk
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