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Agenda Item 24.
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| City Council Meeting |
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| Subject: |
Urgency Ordinance No.1208 for Permit Process, Design and Location Requirements for “Small Wireless Facilities"
The following Administrative Item Number 24, Urgency Ordinance for the Permitting Process for Small Cell Site Facilities - Adopt Urgency Ordinance No. 1208 to provide an immediate permitting process, and design and location requirements, for “small wireless facilities”, as defined, proposed to be installed in public rights-of-way, as made necessary by the F.C.C.’s adoption of its Declaratory Ruling and Third Report and Order which will take effect on January 14, 2019. This ordinance requires a four-fifths vote for adoption whereupon it will take effect immediately, has been amended to reflect an updated change to the attached Ordinance No. 1208.
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| RECOMMENDATION |
| Adopt Urgency Ordinance No. 1208 to provide an immediate permitting process, and design and location requirements, for “small wireless facilities”, as defined, proposed to be installed in public rights-of-way, as made necessary by the F.C.C.’s adoption of its Declaratory Ruling and Third Report and Order which will take effect on January 14, 2019. This ordinance requires a four-fifths vote for adoption whereupon it will take effect immediately. |
| BACKGROUND/DISCUSSION |
In order to expedite the deployment of so-called “5G” wireless technology and to move the concepts forward outside of the legislative process, the wireless industry was simultaneously working with the Federal Communications Commission (FCC) to enact a rulemaking that would facilitate the expansion of 5G technology. On September 27, 2018, the FCC released its Declaratory Ruling and Third Report and Order (“Order”). The Order significantly limits cities’ ability to manage small wireless facilities proposed to be installed in the public rights-of-way (“PROW”). A “small wireless facility” (“SWF”) is defined in the Order as a wireless facility in which each antenna can fit within an enclosure of no more than three (3) cubic feet in volume, and all other wireless equipment associated with the antenna, including the provider’s preexisting equipment, is cumulatively no more than twenty-eight (28) cubic feet in volume. Certain height restrictions also apply. The effective date of the order is January 14, 2019.
Since this FCC ruling was adopted in September 2018, there have been multiple lawsuits filed against the FCC to stop this order. After the FCC ignored the U.S. Conference of Mayors' and litigating cities' request for a stay, both groups filed a petition to the 10th Circuit of the U.S. Court of Appeals to stay the January 14 effective date. Late December 2018, the Court ordered the FCC to file its response to the stay motion by January 2, 2019. It is anticipated that the 10th Circuit will rule on the stay motion, on or before the January 14 deadline.
Summary of the Order:
Use of City infrastructure: This Order provides that cities must allow wireless providers’ use of city infrastructure in PROW for SWFs, subject only to specific public safety concerns, and aesthetic standards that are “reasonable”, “objective”, and published in advance.
Cap on fees: This Order declares that local agencies may not act in a proprietary capacity when setting recurring and non-recurring fees for use of its infrastructure for SWFs, and it sets forth “presumed reasonable” fee amounts designed to reimburse cities for their actual costs in processing applications and administering site management. These fees vary roughly from $500 per SWF (up to five SWFs) for a non-recurring permit fee, and $270 per year per SWF for right-of-way access. It is estimated that this will result in a nearly 90% cut to utility pole rents that wireless providers pay to local governments nationwide, totaling a loss of approximately $3 billion in annual revenue to local governments.
Strict application review periods (“shot clock”): With limited exceptions, this Order imposes a maximum period of sixty (60) days, from the current ninety (90) days, in which to fully process a complete application for a new small wireless facility in the PROW. This period is inclusive of all related, required approvals and administrative process.
Proposed Ordinance:
Existing provisions of the City Code will conflict with, or otherwise be inconsistent with, the requirements contained in the Order. The City currently has no standards for wireless installations involving attachments to City infrastructure in the PROW, such as light poles. Furthermore, there is no existing permit process other than the more generic encroachment permit process, that can be used to regulate small wireless facilities in the PROW. Therefore, the proposed ordinance provides the following: (i) a comprehensive permit process that includes submittal of detailed drawings, specifications, and site analyses; (ii) detailed locational and installation requirements designed to minimize visual impacts of these wireless facilities; and (iii) recurring and non-recurring fees that are no less than the fees identified in the Order as being presumed “reasonable.” The ordinance also provides for the City to enter into “master agreements” to accommodate SWFs. There are circumstances where master agreements will provide benefits to the City and wireless providers.
Environmental Assessment:
The City of Brea has determined that the proposed ordinance is categorically exempt from review under the California Environmental Quality Act ("CEQA") (California Public Resources Code Section 21000, et seq.), pursuant to State CEQA Regulation 15061(b)(3) (14 Cal. Code Regs. § 15061(b)(3)) covering activities with no possibility of having a significant effect on the environment. In addition, the City of Brea has determined that the ordinance is categorically exempt pursuant to Section 15301 of the CEQA Regulations applicable to minor alterations of existing governmental and/or utility-owned structures. |
| FISCAL IMPACT/SUMMARY |
Since the ordinance provides for the recovery of administrative costs, no significant fiscal impact is anticipated.
Staff recommends that the Urgency Ordinance be adopted and remain in place while the effects of the Order and the determination on the pending litigation are felt in Brea and surrounding cities. Based on those observations and decisions, staff will likely return to the Council with additional regulations and/or refinements to the regulations adopted herein. Staff anticipates that, as experience with these types of facilities grows, it will be possible to further shape the new regulations so as to minimize further the aesthetic impacts of wireless facilities in the PROW. |
| RESPECTFULLY SUBMITTED: |
William Gallardo, City Manager
Prepared by: Michael Ho, P.E., Deputy Director/City Engineer
Concurrence: Tony Olmos, P.E., Director of Public Works
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