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HomeMy WebLinkAboutCC ORD 2019-2457 Small Wireless Facilities and Other Infrastructure DeploymentsORDINANCE NO. 2019 - 2457 ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AMENDING SECTION 18.30.220 OF THE NATIONAL CITY MUNICIPAL CODE FOR THE REGULATION OF SMALL WIRELESS FACILITIES AND OTHER INFRASTRUCTURE DEPLOYMENTS WHEREAS, pursuant to the California Constitution, Article XI, section 7; California Government Code section 37100 and other applicable law, the 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, the City currently regulates all "wireless telecommunication facilities" under Municipal Code § 18.30.220, which requires a use permit and design review for all applications. The provisions in § 18.30.220 are generally applicable and do not distinguish between facilities on private property and those within the public rights -of - way. WHEREAS, since the City Council last amended its regulations for wireless facilities, significant changes in federal laws that affect local authority over personal wireless service facilities and other related infrastructure deployments have occurred, including, but not limited to, the following: • On August 2, 2018, the Federal Communications Commission ("FCC") adopted a Third Report & 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 "August Order"), that formally prohibited express and de facto moratoria for all personal wireless services, telecommunications services and their related facilities under47 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; and • 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 "September 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. Ordinance No. 2019 - 2457 1 Amending NCMC 18.30.220 May 7, 2019 WHEREAS, in addition to the changes described above, local authority may be further impacted by other pending legislative, judicial and regulatory proceedings, including but not limited to: • 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; and • Further orders and/or declaratory rulings by the FCC from the same rulemaking proceeding as the August Order and September Order; and • Multiple petitions for reconsideration and judicial review filed by state and local governments against the August Order and September Order, which could cause the rules in either order to change or be invalidated. 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 § 18.30.220 to allow greater flexibility and responsiveness to new federal and State laws in order to preserve the City's traditional authority to the maximum extent practicable (the "Amendment"). WHEREAS, on March 25, 2019, the Planning Commission held a duly noticed public hearing on the Amendment, reviewed and considered the staff report, other written reports, public testimony and other information contained in the record, and recommended that the City Council adopt the Amendment; WHEREAS, on April 16, 2019 and May 7, 2019, the City Council held a duly noticed public hearing on the proposed Amendment, 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 National City hereby finds, determines and ordains as follows: SECTION 1. FINDINGS. 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 Ordinance No. 2019-2457 2 Amending NCMC 18.30.220 May 7, 2019 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 Ordinance. B. This Ordinance is consistent with the General Plan, Municipal Code and applicable federal and state law. C. This Ordinance will not be detrimental to the public interest, health, safety, convenience or welfare. SECTION 2. ENVIRONMENTAL REVIEW. Pursuant to California Public Resources Code § 21065 and the California Environmental Quality Act ("CEQA") Guidelines § 15378, the City 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 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 Ordinance merely amends § 18.30.220 to authorize the City Council to regulate small wireless facilities and other infrastructure deployments. This Ordinance does not directly or indirectly authorize or approve any actual changes 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 Ordinance would be exempt from CEQA under the general rule. SECTION 3. AMENDMENT TO SECTION 18.30.220 OF THE NATIONAL CITY MUNICIPAL CODE. Section 18.30.220.H is added to the National City Municipal Code and shall read as follows: H. Notwithstanding any other provision of this section, all "small wireless facilities" as defined by the FCC in 47 C.F.R. § 1.6002(1), as may be amended or superseded, shall be subject to permits and other requirements as specified in City Council Policy No., which is adopted and may be amended or repealed by a City Council resolution. If City Council Policy No. is repealed and not replaced, an application for a small wireless facility shall be processed pursuant to this section. Ordinance No. 2019-2457 3 Amending NCMC 18.30.220 May 7, 2019 SECTION 4. CONFLICTS WITH PRIOR ORDINANCES. If the provisions in this Ordinance conflict in whole or in part with any other City regulation or ordinance adopted prior to the effective date, the provisions in this Ordinance will control. SECTION 5. SEVERABILITY. If any section, subsection, paragraph, sentence, clause, phrase or term (each a "Provision") in this 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 Ordinance, and each Provision therein, whether any one or more Provisions be declared illegal, invalid or unconstitutional. SECTION 6. EFFECTIVE DATE. This Ordinance shall become effective 30 days after its passage and adoption. SECTION 7. PUBLICATION. No later than 15 days after its adoption, this Ordinance (or a summary) together with the names of each City Council members who voted for or against this Ordinance shall be published in the manner required by law. PASSED and ADOPTED this 7th day of May, 2' 9, \�//A ATT i Michael ' . b : . , City Clerk APPROVED AS TO FORM: Ordinance No. 2019-2457 May 7, 2019 J olis, Mayor 4 Amending NCMC 18.30.220 Passed and adopted by the Council of the City of National City, California, on May 7, 2019 by the following vote, to -wit: Ayes: Councilmembers Cano, Morrison, Quintero, Rios, Sotelo-Solis. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: ALEJANDRA SOTELO-SOLIS Mayor of the City of National City, California City Clerk of the City of National City, California By: I HEREBY CERTIFY that the foregoing ordinance was not finally adopted until seven calendar days had elapsed between the day of its introduction and the day of its final passage, to wit, on April 16, 2019 and on May 7, 2019. I FURTHER CERTIFY THAT said ordinance was read in full prior to its final passage or that the reading of said ordinance in full was dispensed with by a vote of not less than a majority of the members elected to the Council and that there was available for the consideration of each member of the Council and the public prior to the day of its passage a written or printed copy of said ordinance. I FURTHER CERTIFY that the above and foregoing is a full, true and correct copy of ORDINANCE NO. 2019-2457 of the City Council of the City of National City, passed and adopted by the Council of said City on May 7, 2019. By: City Clerk of the City of National City, California Deputy