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HomeMy WebLinkAbout02 URG ORD 1163 04-15-96NO' 2 /,-15-96 DATE' APRIL 15, 1996 Inter-Com TO: WILLIAM A. HUSTON, CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJEC~ EXTENSION OF INTERIM URGENCY ORDINANCE NO. 1163 - WIRELESS COMMUNICATION FACILITIES ~ RECOMMENDATION That the City. Counci1 take 'the following actions: 1. Determine by Minute Motion that Interim Urgency Ordinance No. 1167 have reading by title only. . Determine by Minute Motion that Interim Urgency Ordinance No. 1167 be introduced. . Determine by Minute Motion that Interim Urgency Ordinance No. 1167 be passed and adopted, extending the interim regulations for wireless communication facilities established by Interim Urgency Ordinance No. 1163 for an additional 22 months and 15 days. FISCAL IMPACT There are no fiscal impacts associated with the City Council's adoption of this interim urgency ordinance extension.. The proposed urgency ordinance is intended to extend interim regulations and guidelines to regulate the establishment of wireless communication facilities. BACKGROUND On March 4, 1996, the Community Development Department presented a report to the City Council which detailed the urgency for additional regulations and guidelines for wireless communication facilities in the City of Tustin. On that same date, the City Council adopted by minute order Interim Urgency Ordinance No. 1163, immediately establishing interim regulations for wireless communication facilities. The California Government Code prescribes that an interim urgency ordinance can be effective for a period of 45 days from the date of adoption, and can be subsequently extended for an additional 22 months and 15 days provided that noticing and public hearing procedures are followed for the original adoption of the interim City Council Report Wireless Communication Facilities April 15, 1996 Page 2 urgency ordinance and for the extension. Interim Urgency Ordinance No. 1163 is due to expire on April 19, 1996. If the extension ordinance is adopted, the interim regulations will remain in effect until March 4, 1998. These interim regulations are needed given the current and immediate threat to the public health, safety and welfare. This threat is due to conditions such as the proliferation, concentration and lack of operational control over wireless communication facilities. Since the March 4, 1996 adoption date of the original urgency ordinance, measures have been taken to alleviate these conditions which led to the adoption of the interim urgency ordinance. For example, the Community Development Department, in cooperation with a consultant, is continuing to work on an eighteen month process of comprehensively amending the Tustin Zoning Code. This comprehensive amendment will-include a new section on wireless communication facilities. Representatives of several wireless communication providers have requested the ~opportunity ~o' provide input in the development of these permanent regulations for wireless communication facilities. Staff will be encouraging this input and working closely with these individuals over the next several months. As the initial urgency ordinance is only effective for a total of 45 days and interim wireless communication regulations are needed to protect the publiC health, safety and welfare, the extension of Urgency Ordinance No. 1163 for an additional 22 months and 15 days through the adoption of Interim Urgency Ordinance No 1167 is recommended. ' ORDINANCE REVISIONS Interim Urgency Ordinance No. 1163 established regulations and guidelines for the establishment of public wireless communication facilities. Private facilities, however, were not subject to the provisions of the ordinance. Interim Urgency Ordinance No. 1167 would extend the effective time period of these regulations, but would apply to both public and private wireless communication facilities in the city of Tustin. In all other'respects the two ordinances are identical. ' The proposed Interim Urgency Ordinance was revised to reflect the licensing differences among the various wireless communication City Council Report Wireless Communication Facilities April 15, 1996 Page 3 providers which cloud the definitional distinction between public and private facilities. Whether public or private according to the definitions in the Ordinance, wireless communication facilities are similar physically and should be regulated consistently. STATE CODE REQUIREMENTS The City Council has the authority to adopt an interim urgency ordinance to protect the public health, safety and welfare. Interim urgency ordinances require a 4/Sths vote of the City Council and are effective immediately. The City Attorney has reviewed the proposed interim' urgency ordinance and finds it acceptable as to form. It has been determined that the proposed interim urgency ordinance is also exempt from the requirements of the. California Environmental Quality Act and therefore no environmental review is needed.. A'public hearing notice identifying the time, date and location of the public, hearing on this interim urgency ordinance was published in the Tustin Weekly and posted at Tustin City Hall and Police Department. Since the interim urgency ordinance is effective citywide, notices were not required to be mailed to property owners. CONCLUSION Interim regulations and guidelines for all wireless communication facilities are needed to protect the citizens of Tustin. The extension of Interim Urgency Ordinance No. 1163 would provide for continued interim regulations while more permanent regulations are being developed. Scott Reekstin Associate Planner Elizabeth A. Binsack Director of Community Development SR: \ccreport\wireless · sr2 Attachment: Ordinance No. 1167 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDINANCE NO. 1167 AN INTERIM URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF' TUSTIN, EXTENDING INTERIM URGENCY ORDINANCE NO. 1163 AND ADOPTING INTERIM REGULATIONS FOR WIRELESS COMMUNICATION FACILITIES IN THE CITY OF TUSTIN. The City Council of the City of Tustin DOES HEREBY ORDAIN as follows: Section 1. FindinGs. The City 'Council of the City of Tustin finds and determines .as follows: A, There has been an increase in the number of applications for, and inquiries regarding, proposed wireless communication facilities in the City of Tustin. A City consultant is currently reviewing and proposing changes to the Zoning Code that will address such facilities. S , Section 9271b of the Tustin City Code currently allows public utilities, including natural gas, electricity, telephone and public wireless communications, in all zoning districts without limitation as to height,. number, site location, or the requirement to obtain a use permit, thereby permitting an over-concentration of public wireless communication facilities. Over- concentration, and a lack of control over the conditions of operation of these facilities, can have a negative impact on adjacent uses, particularly residential uses. Ce D . The adoption of regulations and guidelines for the establishment of wireless communication facilities will serve to reduce the potential for negative impacts on the community. Failure to immediately implement wireless communication regulations through the adoption of an urgency ordinance will result in a substantial number of wireless communication facilities being installed without controls needed to protect the public health safety and welfare. ' E . F , The requirements and restrictions imposed by this ~Ordinance are necessary to protect the health, safety and welfare of the citizens of Tustin. The development of a permanent ordinance will require further study and analysis. The City Council has the authority to adopt an urgency ordinance pursuant to Government Code Section 65858 to protect the public 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Ordinance No. 1167 Page 2 safety, health, and welfare while the permanent ordinance is being developed. G , There is a current and immediate~threat to the public welfare, health, and safety due to the proliferation, concentration and lack of operational control over all wireless communication facilities. Therefore, the' City Council finds and declares that this Urgency Ordinance is required for the immediate preservation of the public peace, safety, and/or health of the citizens of Tustin. Section 2. Section 9242(b) (j), of Article 9, Chapter 2, Part 4 of the Tustin City Code; Section VI.C.13. of the Planned Community District Regulations for the Irvine Industrial Complex (Franklin and Walnut Avenues), adopted by Ordinance No. 611; and Subsection 1 of the Subsection entitled "Conditionally Permitted Uses" of Section I of Part I of the Planned Community District Regulations for the Irvine Industrial Complex (Red Hill, Warner, Bell, Mosher, and Morgan Avenues) adopted by Ordinance No. 400, are hereby'repealed in their entirety. Section 3. The following provisions are hereby adopted as interim regulations and guidelines for wireless communication facilitieS: "INTERIM WIRELESS COMMUNICATION FACILITY REGULATIONS AND ~UIDELINES" 1.0 PURPOSE The purpose of these interim regulations and guidelines is to regulate the establishment of all wireless communication. facilities until such time as the City of~ Tustin adopts ~a permanent ordinance pertaining to all wireless communication facilities, and to protect the public health, safety, general welfare, and quality of life of Tustin. citizens in the interim. The Tustin City Council has found and determined that these interim .~egulations and guidelines for wireless communication facilities are necessary to ~attain these goals. These regulations are intended to supersede applicable provisions of Tustin City Code Section 9271b pertaining to communications facilities, Ordinance No. 1097,. Tustin City Code Section 9242(b) (j) and any other applicable provisions contained within the Tustin City Code. 2.0 DEFINITIONS Unless otherWise stated, the following definitions pertain to this urgency ordinance. 28 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 Ordinance No. 1167 Page 3 "Antenna" means a device used in communications which tranSmits, or receives radio signals. "Antenna, Dish" means a dish-like antenna used to link communications sites together by wireless transmission of voice ~or data. Also called microwave antenna or microwave dish antenna. "Antenna, Panel" means an antenna or array of antennae that are flat and rectangular and designed to concentrate a radio signal in a particular area. Also referred to as directional antennae. "Antenna, Whip" means an antenna that transmits signals in 360 degrees. They are typically cylindrical in shape and are less than six inches in diameter and measure up to 18 feet in height. Also called omnidirectional, stick or pipe antennae. "Buildinq-mounted,, means mounted to the side of a building or to another structure such as a water tank, billboard, church steeple, freestanding sign, etc. "California Public Utilities Commission (CPUC)" means the governmental agency which-regulates the terms and conditions of public utilities in the State of California. "Cell Site" means a geographical area with a radius of two to eight miles that contains both transmitting and receiving antennae. "Cellular" means an analog or digital wireless ~communication ~e~~~ that is based on system of interconnected neighboring cell sites, each of which contains antenna. "Certificate of Public Convenience and Necessity,, means a certificate issued by the California Public Utilities Commission. "Co-location,, means the locating of wireless communications equipment from more than one provider on a single building- mounted, roof-mounted or ground-mounted wireless communication facility. "Electromaqnetic Field" means the local electric and magnetic fields caused by voltage and the flow of electricity that envelop the space surrounding an electrical conductor. "Enhanced Specialized Mobile Radio" means a digital wireless communication technology that specializes in providing dispatching services. "Flower Tower,, means a structure that integrates a monopole into a light pole or other utility pole. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance No. 1~7 Page 4 "Ground mounted" means mounted to a pole, monopole, lattice tower, or other freestanding structure specifically constructed for the purpose of supporting such antenna. "Lattice Tower" means a structure with· three or four steel support legs that supports a variety of antennae. These towers generally range in height from 60 to 200 feet and are constructed in areas where great height is needed, microwave antennas are required, or where the weather demands a more structurally-sound design. "Major Wireless Communication Facility" means a wireless communication facility that: Is ground mounted on property not within t~e public right- of-way; or . Is ground mounted within the public right-of-way but does not qualify as a microcell facility; or . Is building or roof mounted and exceeds ten feet in height and/or exceeds the maximum height permitted in the zoning district in which the facility is located. "Microcell" means a wireless communication facility that: Contains a maximum of four whip or panel antennae. Each whip antenna does not exceed 4" in diameter and four feet in length. Each panel antenna does not exceed two square feet in surface area. . Contains a maximum of one microwave antennae no larger than ten square feet in surface area. 3. Has an array of antennae less than ten feet in height. Is building or roof mounted or, if within the public right- of-way, is located on top of a light pole or telephone pole or a metal or precast concrete monopole (similar in design to a street light pole or street tree). , Has a total height, if building or roof mounted, that does not exceed the maximum height permitted in the applicable zoning district in which the facility is located. ~"Minor Wireless Communication Facility" means a wireless communication facility that: 1. Consists of a microcell; or .1 10 11 I12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance No. 1167 Page 5 . Is building or roof mounted and is less than ten feet in height and does not exceed the maximum height permitted in the zoning district in which the facility is located. "Monopole" means a structure composed of a single spire used to support antennae and related equipment. "Mounted" means attached or supported. "Personal Communication Services" means a digital wireless communication technology that has the capacity for multiple communications services and will provide a system in which calls w~ll be routed to individuals rather than places, regardless of location. "Private Wireless Communication Facility" means a wireless communication facility that has not been granted a Certificate of Public Convenience and Necessity by the CPUC. "Public Wireless Communication Facility" means a wireless communication facility that has been granted a Certificate of Public Convenience and Necessity by the CPUC. "Radiofrequency Radiation" means electromagnetic radiation in the portion of the spectrum from 3 kilohertz to 300 gigahertz. "Roof-mounted" means mounted above the eave line of a bUilding. "Stealth facility" means any communications facility which is designed to blend into the surrounding environment, typically one that is architecturally integrated into a building or other concealing structure. Also referred to as concealed antenna. "Wireless Communication Facility" means any public or private structure that supports antennae, microwave dishes and other related equipment that sends and/or receives radiofrequency signals. 3.0 APPLICABILITY a . Ail wireless communication facilities for which applications were approved and/or building permits issued by the Community Development Department on or prior to the adoption date of this ordinance shall be exempt from the interim regulations and guidelines contained herein, unless Section 3 0 (b) applies. b . Ail wireless communication facilities for which building permits have expired, .and have not been renewed on or prior to the adoption date of this ordinance, shall be required to comply with the interim regulations and guidelines contained herein. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance No. 1io7 Page 6 C . Ail wireless communication facilities for which applications were determined complete by the Community Development Department on or prior to the adoption date of this ordinance shall be exempt from the interim regulations and guidelines ~contained herein. de Ail wireless communication facilities for which applications were received by the community Development Department on or prior to the adoption date of this ordinance and determined complete within sixty (60) days following the adoption date of this ordinance shall be exempt from the interim regulations. and guidelines contained herein. Where the application is not determined complete within sixty (60) days following the adoption of this ordinance, the Wireless communication facility shall comply with the interim regulations and guidelines contained herein. e. Ail wireless communication facilities for which applications were received by the Community D~velopment Department following the adoption date of this ordinance, shall be required to comply with the interim regulations and guidelines contained herein. f. All wireless communication facilities to be located during the term of this Interim Ordinance within City of Tustin public right-of-way or on property owned by the City of Tustin shall be exempt from the interim regulations and'guidelines contained herein. 4.0 DEVELOPMENT CRITERIA FOR ALL WIRELESS COMMUNICATION FACILITIES a. ' Screening Criteria and. Guidelines 1) Wireless communication facilities shall have subdued colors and non-reflective materials which blend with surrounding materials and colors. 2') Wireless communication facilities shall be located in areas that will minimize their aesthetic intrusion on the surrounding community. Ground-mounted facilities should only be located in proximity to existing above-ground utilities, such as electrical tower or utility poles (which are not.'scheduled -for eventual removal or undergrounding), light poles, or trees of comparable heights. For building mounted. facilities, all screening shall be compatible with the existing architecture, '.color, texture and or materials of the building~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Ordinance No. 1167 Page 7 b . C o Site Selection Order of Preference 1) Wireless communication facilities shall be located in the following order of preference: a) On existing structures such as buildings, communication towers, church steeples and freestanding signs. b) c) In locations where the existing topography, vegetation, buildings, or other structures provide the greatest amount of screening. On vacant ground without significant'visual mitigation only in commercial'and industrial zoning districts. 2) As part of the application process, applicants for wireless communication facilities shall be required to provide written documentation demonstrating a good faith effort in locating facilities in accordance with the Site Selection Order of Preference. Other Criteria and Guidelines 1) 2) 3) Wireless communication facilities shall not bear any signs or advertising devices other than certification, warning, or other required seals or signage. Ail accessory equipment associated with the operation of the wireless communication facility shall be located within a building, enclosure, or underground vault that complies with the development standards of the zoning district in which the accessory equipment is located. Within 90 days of commencement of operations, · applicants for wireless communication facilities may be required to provide a preliminary report and field report prepared by a qualified engineer that shows the operation of the facility is in conformance with the standard established by the American National Standards Institute (ANSI) and Institute of Electrical and Electronics Engineers (IEEE) for safe human exposure to electromagnetic fields (EMF) and Radiofrequency radiation (RFR). 28 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance No. 1167 Page 8 5.0 LOCATIONAL CRITERIA FOR ALL WIRELESS COMMUNICATION FACILITIES a. No wireless communication facility shall be established: 1) Within any City of Tustin residential zone or land use district; or 2) On property that contains any legally-eStablished residential use. 6.0 LOCATIONAL GUIDELINES FOR MINOR WIRELESS COMMUNICATION FACILITIES a . Minor wireless communication facilities may be established on property within the City of Tustin that is not zoned or used for residential uses. b . Minor wireless communication facilities may be established within all public rights-of-way, subject to issuance of a City encroachment permit from the Public Works Department. 7.0 LOCATIONAL GUIDELINES FOR MAJOR WIRELESS COMMUNICATION FACILITIES Providers requesting permission to establish major ~wireless communication facilities in the' City of Tustin are strongly encouraged to find sites that are separated from residential areas to the greatest extent feasible. No major wireless- communication facility should be established within three hundred (300) feet of: 1) Any City of Tustin residential zone or land use district; b . 2) Any legally-established residential use. No major wireless communication facility should be established within one hundred (100) feet of any existing, legally established major wireless communication facility except when co-located on the same building or structure. C · For the purposes of this Ordinance, all distances shall bemeasured in a straight line without regard to intervening structures, from the nearest point of the proposed major wireless communication facility to the nearest property line of any land use, Land Use District, or zone described in Subsection (a) above, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance No. 1167 Page 9 , or to the nearest point of another major wireless communication facility described in Subsection (b). d. Major wireless communication facilities should be encouraged to locate on properties which are located ~ within the Industrial (M) and Planned Community Industrial (PC-IND) zoning districts. 8.0 HEIGHT CRITERIA FOR MAJOR WIRELESS COMMUNICATIONS FACILITIES No major wireless communication facility shall exceed sixty-five (65) feet in height from ground level, unless the maximum height permitted in the applicable zoning district in which the facility is located is greater than sixty-five (65) feet in height, in which case the major wireless communication facility shall not exceed the maximum height permitted in the applicable zoning district in which the facility is located. 9.0 REQUIREMENT FOR CONDITIONAL USE PERMIT Each major wireless communication facility established in the City of Tustin during the term of this Interim Ordinance must first receive Planning Commission approval of a conditional use permit as established by Tustin City Code Section 9291. 10.0 REQUIREMENT FOR DESIGN REVIEW During the term of this Interim Ordinance, Design Review approval shall be required prior 'to the establishment of any wireless communication facility in accordance with Tustin City Code Section 9272. In the event a conditional use permit and/or a variance is also required, the Design Review authority shall be deferred to the Planning Commission. 11.0 PRIVATE WIRELESS COMMUNICATION FACILITIES Private wireless communication facilities shall be subject to the provisions of this Interim Urgency Ordinance. 12.0 MONITORING PROGRAM Each wireless communiCation facility approved during the term of this Interim Ordinance shall be reviewed by the original approval authority (Community Development Director or Planning Commission) at the end of five (5) years from the date of design review and/or conditional use permit approval. The Director or Planning Commission, as aPplicable, may recommend a condition of approval to be able to modify existing conditions or impose new conditions as part of this review to protect the public' health, safety and general welfare, which condition shall be subject to the approval of the City Council. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance No. lzo7 Page 10,, 13.0 CONDITIONAL USE PERMIT EXPIRATION Each major wireless communication facility approved during the term.of this Interim Ordinance shall be approved for a period not to exceed the term of the lease, including any extension thereof, for the major wireless communication facility. A copy of said lease shall be submitted to the Community Development Director prior to the issuance of a building permit for the major wireless communiCation facility. If the lease is extended' or terminated, notice and evidence thereof shall be provided to the Community Development Director. Upon termination or expiration of the lease, the conditional use permit for the facility shall become null and void and the facility removed. 14.0 ABANDONMENT Lawfully erected wireless communication facilities that are no longer being used shall be removed promptly from the premises, and no later than ninety (90) days after the discontinuation of use. A wireless communication facility is considered abandoned if it no longer provides wireless communication service. Such removal shall be in accordance with proper health and safety requirements. A written notice of the determination of abandonment shall be sent or delivered to operator of the wireless communication facility. The operator shall have thirty (30) days to remove the facility or provide the Community Development DePartment with evidence that the use has not been discontinued. The Planning Commission shall review all evidence and shall determine whether or not the facility is abandoned. All facilities not removed within the required thirty (30) day period 'shall be in violation of.the Code and operators of the facility and the owners of the property shall be subject to penalties for violations under the enforcement and penalties provisions of this Ordinance. , 15.0 VIOLATIONS/PENALTIES Violations of this Ordinance shall constitute a misdemeanor punishable by fine or imprisonment or both. Each day the violation continues is punishable as a separate offense pursuant to Tustin City Code Section 1121. Sectio~ 4. 'This Ordinance is an Urgency Ordinance, enacted pursuant to Government Code Section 65858(b).~ The term of the Urgency Ordinance shall be for a period of 22 months and 15 days from the date of expiration of Interim Urgency Ordinance No. 1163, unless terminated. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance No. 1167 Page 11 Section 5. This Ordinance shall be adopted by a four- fifths (4/5) vote of the City Council and shall be effective immediately upon such vote. Section 6. Severability Ail of the provisions of .this urgency ordinance shall be construed together'in order to accomplish the purpose of these regulations. If any provision of this part is held by a court to be invalid or unconstitutional, such invalidity or unconstitutionality shall apply only to the particular facts, or if a provision is declared to be invalid or unconstitutional as applied to all facts, all of the remaining provisions of this ordinance shall continue to be fully effective. PASSED AND ADOPTED at a regular~meeting of the City Council held on the 15th day of_April, 1996.. ' MAYOR PAMELA STOKER CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) CERTIFICATION FOR ORDINANCE NO. 1167 PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Urgency Ordinance was passed and adopted at a regular meeting of the City Council held on the 15th day of April, 1996¥ by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: Pamela Stoker, City Clerk SR: sr: kd\l167, scr