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HomeMy WebLinkAboutAgenda Report - April 5, 2017 C-11TM CITY OF LODI COUNCIL COMMUNICATION AGENDA ITEM C41 AGENDA TITLE: Receive Report Regarding Communication Pertaining to Senate Bill 649 as Proposed to be Amended by RN 17 08941 (Hueso) — Wireless and Small Cell Telecommunications Facilities MEETING DATE: April 5, 2017 PREPARED BY: City Clerk RECOMMENDED ACTION: Receive report regarding communication pertaining to Senate Bill 649 as proposed to be amended by RN 17 08941 (Hueso) — Wireless and Small Cell Telecommunications Facilities. BACKGROUND INFORMATION: The City received a request for communication from the League of California Cities regarding SB 649 as proposed to be amended by RN 17 08941 (Hueso). There was a need to send a letter of opposition immediately in light of a pending hearing. SB 649 as proposed to be amended by RN 17 08941 would unnecessarily and unconstitutionally strip local authority over public property and shuts out public input and local discretion by eliminating consideration of the aesthetic and environmental impacts of "small cells." This proposal would prohibit local discretionary review of "small cell" wireless antennas, including equipment collocated on existing structures or located on new "poles, structures, or non -pole structures," including those within the public right-of-way and buildings. The proposal preempts adopted local land use plans by mandating that "small cells" be allowed in all zones as a use by -right, including all residential zones. As such, the proposal provides a de facto exemption to the California Environmental Quality Act (CEQA) for the installation of such facilities and precludes consideration by the public of the aesthetic, nuisance, and environmental impacts of these facilities, all of which are of particular importance when the proposed location of facilities is within a residential zone. SB 649's use of the Federal Communications Commission (FCC) definition of a "small cell" includes other "small cell" equipment such as electric meters, concealments, telecom demarcation boxes, ground- based enclosures, battery backup power systems, grounding equipment, power transfer switches, cutoff switches, cables, or conduits. The proposal allows for an unlimited number of antennas of less than three cubic feet each or six cubic feet for all antennas, while placing no height restrictions on the pole. While proponents argue that an individual "small cell" has very little impact, the cumulative size specifications of all the small cells and associated equipment far exceed the perceived impacts from a single cell. The proposal also unconstitutionally preempts local authority by requiring local governments to make available sites they own for the installation of a "small cell." While the city may place "fair and reasonable terms and conditions" on the use of city property, the proposal does not provide the city with any APPROVED: N:Wdministration\CLERK\Council\COUNCOM\Oppose SB 649.doc ity Manager Receive Report Regarding Communication Pertaining to Senate Bill 649 as Proposed to be Amended by RN 17 08941 (Hueso) — Wireless and Small Cell Telecommunications Facilities April 5, 2017 Page 2 discretion to deny a "small cell" to be located on city property except for fire department sites. In effect, this measure unconstitutionally gives control of public property to private telecommunications companies, while also precluding local governments from leasing or licensing publicly -owned property. This bill strips local government of the authority to protect the quality of life of our residents, and to protect public property and the public right-of-way from relatively unconstrained access by small cells. The attached letter, signed by the Mayor, was sent out on March 20, 2017. The request for opposition and text of the bill are also attached. This report is provided for informational purposes only, pursuant to policy. FISCAL IMPACT: Not applicable. FUNDING AVAILABLE: Not applicable. 9J" AkAi (3.__. nnifer M erraiolo ity Clerk CITY COUNCIL DOUG KUEHNE, Mayor ALAN NAKANISHI, Mayor Pro Tempore MARK CHANDLER BOB JOHNSON JOANNE MOUNCE CITY OF LODI CITY HALL, 221 WEST PINE STREET P.O. BOX 3006 LODI, CALIFORNIA 95241-1910 (209) 333-6702 / FAX (209) 333-6807 www.lodi.gov cityclerk©Iodi.gov March 20, 2017 The Honorable Ben Hueso California State Senate, District 40 State Capitol, Room 4035 Sacramento, CA 95814 VIA FAX: 916-651-4940 STEPHEN SCHWABAUER City Manager JENNIFER M. FERRAIOLO City Clerk RE: Senate Bill 649 as Proposed to be Amended by RN 17 08941 (Hueso) — Wireless and Small Cell Telecommunications Facilities — OPPOSE JANICE D. MAGDICH City Attorney The City of Lodi respectfully opposes your SB 649 and proposed amendments in RN 17 08941 (proposal) related to the permitting of wireless and small cell telecommunications facilities. This proposal unnecessarily and unconstitutionally strips local authority over public property and shuts out public input and local discretion by eliminating consideration of the aesthetic and environmental impacts of "small cells." This proposal would prohibit local discretionary review of "small cell" wireless antennas, including equipment collocated on existing structures or located on new "poles, structures, or non -pole structures," including those within the public right-of-way and buildings. The proposal preempts adopted local land use plans by mandating that "small cells" be allowed in all zones as a use by -right, including all residential zones. As such, the proposal provides a de facto exemption to the California Environmental Quality Act (CEQA) for the installation of such facilities and precludes consideration by the public of the aesthetic, nuisance, and environmental impacts of these facilities, all of which are of particular importance when the proposed location of facilities is within a residential zone. SB 649's use of the Federal Communications Commission (FCC) definition of a "small cell" includes other "small cell" equipment such as electric meters, concealments, telecom demarcation boxes, ground-based enclosures, battery backup power systems, grounding equipment, power transfer switches, cutoff switches, cables, or conduits. The proposal allows for an unlimited number of antennas of less than three cubic feet each or six cubic feet for all antennas, while placing no height restrictions on the pole. While proponents argue that an individual "small cell" has very little impact, the cumulative size specifications of all the small cells and associated equipment far exceed the perceived impacts from a single cell. The proposal also unconstitutionally preempts local authority by requiring local governments to make available sites they own for the installation of a "small cell." While the city may place "fair and reasonable terms and conditions" on the use of city property, the proposal does not provide the city with any discretion to deny a "small cell" to be Senate Bill 649 as Proposed to be Amended by RN 17 08941 (Hueso) — Wireless and Small Cell Telecommunications Facilities March 20, 2017 Page 2 located on city property except for fire department sites. In effect, this measure unconstitutionally gives control of public property to private telecommunications companies, while also precluding local governments from leasing or licensing publicly -owned property. This bill strips local government of the authority to protect the quality of life of our residents, and to protect public property and the public right-of-way from relatively unconstrained access by small cells. Local governments typically encourage new technology in their boundaries because of its potential to dramatically improve the quality of life for their residents. However, SB 649 goes too far by requiring local governments to approve "small cells" in all land use zones, including residential zones, through a ministerial permit, thereby shutting the public out of decisions that could affect the aesthetics of their community and the quality of their environment. Sincerely, lel Doug R'eceitpte Doug Kuehne Mayor, City of Lodi cc: Senator Cathleen Galgiani, Fax: (916) 651-4905 Assemblymember Jim Cooper, Fax: (916) 319-2109 Nidia Bautista, Consultant, Senate Energy, Utilities and Commerce Committee, nidia.bautista@sen.ca.gov Kerry Yoshida, Principal Consultant, Senate Republican Caucus, kerry.yoshida@sen.ca.gov Stephen Qualls, squalls@cacities.org Meg Desmond, League of California Cities ACTION ALERT!! SB 649 (Hueso) Wireless Telecommunications Facilities & Proposed Amendments to Install Small Cells By Right OPPOSE Background: The League is opposing SB 649 (Hueso) and proposed amendments in RN 17 08941 (proposal) related to the permitting of wireless and small cell telecommunications facilities. The proposal is up for a hearing on Tuesday, April 4, 2017 at 9am in Senate Energy, Utilities, and Commerce Committee. This proposal will unnecessarily and unconstitutionally strip local authority over public property and shuts out public input and local discretion by eliminating consideration of the aesthetic and environmental impacts of "small cells." The proposal includes language that would: • Prohibit local discretionary review of "small cell" wireless antennas, including equipment collocated on existing structures or located on new "poles, structures, or non -pole structures," including those within the public right-of-way; • Preempt adopted local land use plans by mandating that "small cells" be allowed in all zones, including residential zones, as a use by -right; • Provide a de facto exemption to the California Environmental Quality Act (CEQA) for the installation of such facilities and precludes consideration by the public of the aesthetic, nuisance impacts, and other environmental impacts of these facilities; • Includes equipment such as electric meters, concealments, telecom demarcation boxes, ground- based enclosures, battery backup power systems, grounding equipment, power transfer switches, cutoff switches, cables, or conduits in the definition of a "small cell." • Preempt local authority over public property by requiring local governments to make available sites they own for the installation of a "small cell." This measure would unconstitutionally give control of city property to private telecommunications companies; and ACTION: Please call your Senator as soon as possible to oppose SB 649 and its proposed amendments to prohibit local discretionary review of "small cell" wireless antennas, including equipment collocated on existing structures or located on new poles, structures, or non -pole structures. Tuesday, April 4, 2017 at 9am in Senate Energy, Utilities, and Commerce Committee. Here is the committee makeup: Member Bradford, Steven District Party Room 35 D 2062 [-Cannella, Anthony 12 R 5082 I Phone Fax p 916 6514035 1 916 6514935 [916 6514012 F916 6514912 Hertzberg, Bob 18 D 4038 916 6514018 916 6514918 Hill, Jerry Hueso, Ben (Chair) McGuire, Mike 13 D 5035 40 D 4035 2 D 5061 Morrell, Mike (Vice -Chair) 916 6514013 F916 651 4040 [16 6514002 916 6514913 916 651 4940 [16 6514902 23 R 3056 916 6514023 916 6514923 'Skinner, Nancy 1 9 D 2059 1 916 6514009 916 6514909 Stern, Henry iVidak, Andy Wiener, Scott 27 D 14 R 11 1 D 3070 F916 6514027 1 916 6514927 3082 F916 6514014 F916 6514914 4070 F916 651 4011 [ 916 651 4911 You can find your Legislator's contact information here: http://findyourrep.legislature.ca.gov/. Talking Points: • This proposal shifts local land use authority away from local governments and puts it squarely into the hands of private interests with complete disregard for any public input. • Local governments have a responsibility to protect the quality of life for our residents and to protect public property in the public right-of-way. • Local governments typically encourage new technology into their communities, but this proposal goes too far, shutting the public out of decisions that can affect their daily quality of life. SENATE BILL No. 649 Introduced by Senator Hueso (Principal coauthor: Assembly Member Quirk) (Coauthor: Senator Dodd) February 17, 2017 An act to amend Sections 65850.6 and 65964 of the Government Code, relating to telecommunications. LEGISLATIVE COUNSEL'S DIGEST SB 649, as introduced, Hueso. Wireless telecommunications facilities. Under existing law, a wireless telecommunications collocation facility, as specified, is subject to a city or county discretionary permit and is required to comply with specified criteria, but a collocation facility, which is the placement or installation of wireless facilities, including antennas and related equipment, on or immediately adjacent to that wireless telecommunications collocation facility, is a permitted use not subject to a city or county discretionary permit. Existing law defines various terms for these purposes. This bill would define the term "small cell" as a particular type of telecommunications facility for these purposes. Under existing law, a city or county, as a condition of approval of an application for a permit for construction or reconstruction of a development project for a wireless telecommunications facility, may not require an escrow deposit for removal of a wireless telecommunications facility or any component thereof, unreasonably limit the duration of any permit for a wireless telecommunications facility, or require that all wireless telecommunications facilities be limited to sites owned by particular parties within the jurisdiction of the city or county, as specified. 99 SB 649 — 2 — This bill would apply these prohibitions to the approval of small cell facilities as defined by this bill. Vote: majority. Appropriation: no. Fiscal committee: no. State -mandated local program: no. The people of the State of California do enact as follows: 1 SECTION 1. The Legislature finds and declares that, to ensure 2 that communities across the state have access to the most advanced 3 wireless communications technologies and the transformative 4 solutions that robust wireless connectivity enables, such as Smart 5 Communities and the Internet of Things, California should work 6 in coordination with federal, state, and local officials to create a 7 statewide framework for the deployment of advanced wireless 8 communications infrastructure in California that does all of the 9 following: 10 (a) Reaffirms local governments' historic role and authority 11 with respect to wireless communications infrastructure siting and 12 construction generally. 13 (b) Reaffirms that deployment of telecommunications facilities 14 in the rights-of-way is a matter of statewide concern, subject to a 15 statewide franchise, and that expeditious deployment of 16 telecommunications networks generally is a matter of both 17 statewide and national concern. 18 (c) Recognizes that the impact on local interests from individual 19 small wireless facilities will be sufficiently minor and that such 20 deployments should be a permitted use statewide and should not 21 be subject to discretionary zoning review. 22 (d) Requires expiring permits for these facilities to be renewed 23 so long as the site maintains compliance with use conditions 24 adopted at the time the site was originally approved. 25 (e) Requires providers to obtain all applicable building or 26 encroachment permits and comply with all related health, safety, 27 and objective aesthetic requirements for small wireless facility 28 deployments on a ministerial basis. 29 (f) Grants providers fair, reasonable, nondiscriminatory, and 30 nonexclusive access to locally owned utility poles, street lights, 31 and other suitable host infrastructure located within the public 32 right-of-way and in other local public places such as stadiums, 33 parks, campuses, hospitals, transit stations, and public buildings 99 — 3 — SB 649 1 consistent with all applicable health and safety requirements, 2 including Public Utilities Commission General Order 95. 3 (g) Provides for full recovery by local governments of the costs 4 of attaching small wireless facilities to utility poles, street lights, 5 and other suitable host infrastructure in a manner that is consistent 6 with existing federal and state laws governing utility pole 7 attachments generally. 8 (h) Permits local governments to charge wireless permit fees 9 that are fair, reasonable, nondiscriminatory, and cost based. 10 (i) Advances technological and competitive neutrality while not 11 adding new requirements on competing providers that do not exist 12 today. 13 SEC. 2. Section 65850.6 of the Government Code is amended 14 to read: 15 65850.6. (a) A collocation facility shall be a permitted use not 16 subject to a city or county discretionary permit if it satisfies the 17 following requirements: 18 (1) The collocation facility is consistent with requirements for 19 the wireless telecommunications collocation facility pursuant to 20 subdivision (b) on which the collocation facility is proposed. 21 (2) The wireless telecommunications collocation facility on 22 which the collocation facility is proposed was subject to a 23 discretionary permit by the city or county and an environmental 24 impact report was certified, or a negative declaration or mitigated 25 negative declaration was adopted for the wireless 26 telecommunications collocation facility in compliance with the 27 California Environmental Quality Act (Division 13 (commencing 28 with Section 21000) of the Public Resources Code), the 29 requirements of Section 21166 do not apply, and the collocation 30 facility incorporates required mitigation measures specified in that 31 environmental impact report, negative declaration, or mitigated 32 negative declaration. 33 (b) A wireless telecommunications collocation facility, where 34 a subsequent collocation facility is a permitted use not subject to 35 a city or county discretionary permit pursuant to subdivision (a), 36 shall be subject to a city or county discretionary permit issued on 37 or after January 1, 2007, and shall comply with all of the following: 38 (1) City or county requirements for a wireless 39 telecommunications collocation facility that specifies types of 40 wireless telecommunications facilities that are allowed to include 99 SB 649 — 4 — 1 a collocation facility, or types of wireless telecommunications 2 facilities that are allowed to include certain types of collocation 3 facilities; height, location, bulk, and size of the wireless 4 telecommunications collocation facility; percentage of the wireless 5 telecommunications collocation facility that may be occupied by 6 collocation facilities; and aesthetic or design requirements for the 7 wireless telecommunications collocation facility. 8 (2) City or county requirements for a proposed collocation 9 facility, including any types of collocation facilities that may be 10 allowed on a wireless telecommunications collocation facility; 11 height, location, bulk, and size of allowed collocation facilities; 12 and aesthetic or design requirements for a collocation facility. 13 (3) State and local requirements, including the general plan, any 14 applicable community plan or specific plan, and zoning ordinance. 15 (4) The California Environmental Quality Act (Division 13 16 (commencing with Section 21000) of the Public Resources Code) 17 through certification of an environmental impact report, or adoption 18 of a negative declaration or mitigated negative declaration. 19 (c) The city or county shall hold at least one public hearing on 20 the discretionary permit required pursuant to subdivision (b) and 21 notice shall be given pursuant to Section 65091, unless otherwise 22 required by this division. 23 (d) For purposes of this section, the following definitions apply: 24 (1) "Collocation facility" means the placement or installation 25 of wireless facilities, including antennas, and related equipment, 26 on, or immediately adjacent to, a wireless telecommunications 27 collocation facility. 28 (2) "Small cell" means a wireless telecommunications facility 29 within the volume limits established by the Federal 30 Communications Commission for small wireless antennas and 31 associated equipment in the First Amendment to Nationwide 32 Programmatic Agreement for the Collocation of Wireless Antennas 33 (47 C.ER. Part 1 Appendix B). 34 (2) 35 (3) "Wireless telecommunications facility" means equipment 36 and network components such as towers, utility poles, transmitters, 37 base stations, and emergency power systems that are integral to 38 providing wireless telecommunications services. 39 99 — 5 — SB 649 1 (4) "Wireless telecommunications collocation facility" means 2 a wireless telecommunications facility that includes collocation 3 facilities. 4 (e) The Legislature finds and declares that -a both small cell 5 and collocation facility, facilities, as defined in this section, has 6 have a significant economic impact in California ands are not a 7 municipal affair as that term is used in Section 5 of Article XI of 8 the California Constitution, buts are a matter of statewide concern. 9 (0 With respect to the consideration of the environmental effects 10 of radio frequency emissions, the review by the city or county shall 11 be limited to that authorized by Section 332(c)(7) of Title 47 of 12 the United States Code, or as that section may be hereafter 13 amended. 14 SEC. 3. Section 65964 of the Government Code is amended 15 to read: 16 65964. As a condition of approval of an application for a permit 17 for construction or reconstruction for a development project for a 18 wireless telecommunications facility, facility or small cell, as 19 defined in Section 65850.6, a city or county shall not do any of 20 the following: 21 (a) Require an escrow deposit for removal of a wireless 22 telecommunications facility or any component thereof. However, 23 a performance bond or other surety or another form of security 24 may be required, so long as the amount of the bond security is 25 rationally related to the cost of removal. In establishing the amount 26 of the security, the city or county shall take into consideration 27 information provided by the permit applicant regarding the cost 28 of removal. 29 (b) Unreasonably limit the duration of any permit for a wireless 30 telecommunications facility. Limits of less than 10 years are 31 presumed to be unreasonable absent public safety reasons or 32 substantial land use reasons. However, cities and counties may 33 establish a build -out period for a site. 34 (c) Require that all wireless telecommunications facilities be 35 limited to sites owned by particular parties within the jurisdiction 36 of the city or county. 0 99