HomeMy WebLinkAbout14 - Wireless Telecommunications Ordinance PA2012-057 - Public Comments"RECEIVED AFTER AGENDA
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January 14, 2014, City Council Agenda Item 14 Comments
The following comments on items on the Newport Beach City Council agenda are submitted by:
Jim Mosher ( iimmosher(a).vahoo.com ), 2210 Private Road, Newport Beach 92660 (949 -548 -6229)
Item 14. Wireless Telecommunications Facilities Ordinance (contd.)
These are some additional typos and comments on the portions of the draft ordinance not
carefully examined in the previously submitted comments (specifically with reference to
"handwritten" pages 26 -30 of the staff report).
1. Subsection 20.49.060.H.1.c: I understand the desire to avoid parks and residential
districts in the siting of wireless facilities. But I do not understand why "Public Facilities"
(a term not detailed in the "Definitions ") would be a location of last resort. I would think
one could easily imagine a situation where antennas located on the roof of a public
building would be the least intrusive way of providing coverage to the public — and also a
revenue source to the City (and citizens) impacted by it.
Note: regarding Section 20.49.060.1-1 in general (the "Required Findings" for
approval of an application), the Council members may find it helpful to compare
these to the findings the Council is required to make in Subsection 15.70.070.F.3
of the current code. The current finding that "The approved facility will not result
in conditions which are materially detrimental to nearby property owners,
residents, and businesses, nor to public health or safety' (which included impact
on views from neighboring private residences per Subsection 15.70.070.8.4)
may now be wrapped into the preliminary findings for the underlying use permit,
but there no longer seems an obvious requirement that the facility be necessary.
There seemed to be a sentiment on the Planning Commission that wireless
vendors should be allowed to construct new facilities even when there is no
demonstrated need, but the Council should note this is a shift in policy for
Newport Beach, and there is no legal requirement to allow the construction of
unnecessary cell sites. The landmark case MetroPCS, Inc. v. City & County of
S.F., 400 F.3d 715 (9th Cir. 2005) established the principle that local agencies
can deny a cell site application, consistent with federal law, if it does not remedy
a significant gap in coverage and do so in the least intrusive way possible.
2. Subsection 20.49.060.H.1.d: The fact that a Facility can seemingly fall into more than
one "Facility Class" makes the application of the proposed rule uncertain.
3. Subsection 20.49.060.H.2: Should "The Planning Commission' read "The Planning
Commission or the City Councir?
4. Section 20.49.080: The opening sentence is ungrammatical and should be corrected:
"AR appfisafiep In applying for a permit pursuant to this Chapter, all Telecom Facilities
located on City -owned or City -held Trust Property shall require a license agreement"
Note: assuming a license agreement is a contract, and that it is not pre- approved
in the City budget, the original City Charter would have required the City
January 14, 2014, Council agenda item 14 comments - Jim Mosher Page 2 of 2
Manager to obtain the consent of the City Council for use of public property,
which would necessarily involve approval by the Council at a public meeting.
Section 421 as modified at the November 2012 election appears to give the
flexibility to pass that Council responsibility on to the City Manager, as is done
here, but I think it is still in the interest of the people that the authority for
changing the use of public property be delegated very judiciously.
5. Section 20.49.090:
a. The first paragraph is awkwardly worded, and since it cites "the removal of
existing transmission equipment," it would imply permission is required to replace
antennas with ones that diminish any dimension of the facility by more than 5 %.
1 believe the Planning Commission's intent was to prevent unreviewed increases
in the size of facilities, not decreases. Some wordsmithing may be needed to
make that clear.
b. The last paragraph is ungrammatical and is probably trying to say: "Any permit
issued will be conditioned upon the accuracy of the application, and may be
revoked, and the Telecom Facility shall be removed and restored to its pre -
modification seaditien condition, if any material statement made with respect to
the Facility application is false or..."
6. Section 20.49.100: contains superfluous words: "At all times, the operator shall ensure
that its Telecom Facilities shall comply with the most current regulatory, operations
standaird , and radio frequency emissions standards adopted by the FCC."
7. Subsection 20.49.120.A.2: also contains a superfluous word: "Transfer the rights to use
the Telecom Facility to another Telecom Operator and the Telecom Operator
immediately commences use within a reasonable period of time as determined by the
Community Development Director."
Note: in connection with maintenance and removal of obsolete wireless facilities,
the Council should be aware that given the rapidly evolving technology, many
cities have provisions whereby the approvals are periodically reviewed (say,
once every ten years) to ensure the facility could not be updated to a less
intrusive configuration. I believe an earlier draft reserved such a right to the City
of Newport Beach, but it was removed due to protests from the industry. The
Council may, however, feel it is a good protection for the citizens.
S. The boilerplate "Section 14" of the ordinance (on "handwritten" page 30 of the staff
report) appears to suffer from a missing word in the third line from the end: "... and each
section, subsection, sentence clause or phrase hereof, irrespective of the fact..."