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HomeMy WebLinkAboutAGENDA REPORT 2001 0829 CC SPC ITEM 04AITEM q_ • ENNOMMUM MOORPARK CITY COUNCIL -- - AGENDA REPORT To: The Honorable City Council From: Wayne Loftus, Director of Community Development �i� I�k � Date: August 17, 2001 (CC Meeting of 8/29/01) Subject: Consider the Status of Interim Prohibition of Wireless Telecommunications Facilities and Extension of Ordinance No. 272 Enacting a Moratorium on the Issuance of Permits for Their Construction or Placement BACKGROUND On July 19, 2001, (continued from the regular City Council meeting of July 18, 2001) at a Special City Council meeting, an interim ordinance (Ordinance No. 272) was adopted to enact a forty -five (45) day moratorium on the issuance of permits for construction or placement of wireless telecommunications facilities. This interim ordinance also placed a moratorium on the acceptance and processing of applications for these facilities. The City Council enacted this interim ordinance because of concern over the high number of requests for wireless telecommunications facilities to be placed throughout the City and the lack of standards or criteria for their placement and appearance, especially when proposed in residential areas. Currently, wireless telecommunications facilities are evaluated and conditions are established through the processing of a Conditional Use Permit (CUP), regardless of the zone district that the facility will be located in. Conditions are recommended by staff on a case - by -case basis and determined by the Planning Commission or on appeal by the-City Council. The proposed extension of Ordinance No. 272 would provide the time to develop standards and criteria for the placement and appearance of wireless communications facilities which could result in a coordinated citywide plan of candidate locations and or aesthetic standards suitable to allow placement in highly visible and residential locations. Based upon Section 65858 S: \Community Development \Everyone \City Council Agenda Reports \cc 82901 stf rpt.wireless telecomm.d3.81701.doc ` The Honorable City Council Interim Prohibition of Wireless Telecommunications (Ordinance No. 272) August 17, 2001 Page 2 of the Government Code, the proposed extension of the moratorium may be for a period not to exceed ten (10) months and fifteen (15) days. The current moratorium expires on September 2, 2001. DISCUSSION The City Council, at their Special Meeting of July 19, 2001, accepted public testimony from several homeowners who live in proximity to the Peach Hill Reservoir site, at the end of Westport Street, where AT &T Wireless has requested to place a wireless telecommunications facility (CUP No. 2000 -07). This proposal involves the placement of three (3) 4 -foot high antenna panels, placed at a height above ground level of approximately twelve (12) feet, and a 120 - square foot equipment building on property owned by the Ventura County Waterworks District. Other prior approved installations have included tower antennas to a height of sixty (601) feet for the main structure with whip antennas attached to a height of seventy -two (721) feet. The initially approved antenna installations were screened with vegetation with several subsequent antenna structures required to assume the appearance of pine trees. Many of the antenna permits have been required to provide for co- location of competing wireless carriers to avoid the need for additional antennas. There are currently two (2) locations where approved and constructed wireless communications facilities are located; at the college water tank site at the east end of the City, north of Highway 118, and at the Ventura County Waterworks facility on Walnut Canyon Road. Both of these locations include communications towers in excess of sixty (60') feet in height, with towers configured to resemble pine trees located only at the Walnut Canyon Road location. The attached table provides a summary of the history of wireless communications facilities in the City of Moorpark, including those facilities which have been constructed, authorized but not permitted, are pending a decision or have been denied. There are currently four (4) applications for wireless telecommunications facilities on file with the City that have not received a decision, three (3) of which are incomplete for processing. Of the four (4) applications on file, two (2) are proposed for the Peach Hill reservoir site; one (1) is proposed for placement on an existing utility pole on Walnut Canyon Road, south of the future intersection of Country Club Drive and Walnut Canyon Road (Toll Bros.) ; and one (1) is proposed on the roof of the former Regal Cinemas building in Mission Bell Plaza. All of the S: \Community Development \Everyone \City Council Agenda Reports \cc - 082901 stf rpt.wireless telecomm.f.81701.doc The Honorable City Council Interim Prohibition of Wireless Telecommunications (Ordinance No. 272) August 17, 2001 Page 3 above - proposed facilities have been placed in suspension until the moratorium expires or adoption of standards and criteria occurs. Only one (1) approved facility, which is to be placed at the college reservoir site, is affected by the current moratorium. This facility (CUP No. 2000 -03) was approved by the Planning Commission on October 9, 2000, however neither a zone clearance or building permit has been requested. Included with this report as attachments are the proposed ordinance to extend the moratorium for a period of 135 days to end January 14, 2002, and a written report that was issued ten (10) days prior to the August 29, 2001, hearing. This "Ten Day" report outlines the measures that the city is taking to alleviate the need for the moratorium, including review of current Zoning Ordinance criteria, reviewing standards maintained by other agencies, and collecting information adequate to develop standards for review by the City Council. Staff has begun the process of gathering information from various sources including other cities, both in Ventura County and in urban areas throughout the state, concerning siting and aesthetic standards for the placement of wireless communications facilities. It is anticipated that a draft ordinance will be available for review by the City Attorney within sixty (60) days. It is suggested that any extension of the moratorium be established for a minimum of four (4) months and fifteen (15) days (135 days) to end on January 14, 2002. STAFF REMMENDATION 1. Open the Public Hearing, take public testimony and close the Public Hearing; 2. Adopt the attached Draft Ordinance, providing for an extension of Ordinance No. 272, enacting a moratorium on the issuance of permits for construction or placement of wireless communications facilities. (FOUR /FIFTHS VOTE REQUIRED) Attachments: 1) Ten (10) Day Report 2) Draft Ordinance to Extend Moratorium 3) Status of Wireless Communications Facilities - City of Moorpark 4) Letter from Paul B. Albritton, dated August 17, 2001 5) Letter from Paul B. Albritton, dated August 7, 2001 S: \Community Development \Everyone \City Council Agenda Reports \cc - 082901 stf rpt.wireless telecomm.f.81701.doc ? 0 G,0 _; REPORT BY THE CITY OF MOORPARK CONCERNING ITS INTERIM PROHIBITION ON WIRELESS FACILITIES In accordance with Government Code Section 65858(d), the City of Moorpark issues this report of the measures taken to alleviate the conditions which led to the City Council's adoption of Ordinance 272, enacting a moratorium on the issuance of permits for construction or placement of wireless telecommunications facilities in the City. Numbered below are facts cited by the City Council in support of its Ordinance 272, with a statement of the city's efforts to address each fact in italics after each fact. 1. The provisions of regulate the constructic telecommunication facilities review, study, and revision. fully take into account the manner of construction facilities, and the related concerns. the City Municipal Code that may )n and placement of wireless in the City are inadequate and need The current provisions also fail to impacts related to the location and of wireless telecommunications public health, safety, and welfare City staff continues to review the existing relevant provisions of the Municipal Code, both as written and as applied in the past. Staff also is reviewing and analyzing sample ordinances and regulations from other cities, both inside and outside of California, to determine what regulatory approach might best meet the city's goals. 2. The City Council has recently expressed grave concerns about the heavy construction and installation of wireless telecommunications facilities. The City Council also desires to evaluate and enhance the public works and aesthetic standards regarding such facilities, if necessary. The City has four (4) applications pending to construct new wireless facilities in the City. Also, the City anticipates receiving numerous additional applications for wireless facilities, as a consequence of the recent auctions of additional wireless service spectrum by the Federal S: \Community Development \Everyone \City Council Agenda Reports \ten day report.wireless.81701.d2.doc ATTACHMENT NO. 1 Report by the City of Moorpark Concerning Its Interim Prohibition on Wireless Facilities August 17, 2001 Page 2 Communications Commission. As noted above, staff is reviewing sample ordinances and regulations from other cities to determine what regulatory approach might best meet the city's goals and interests. 3. The City requires additional time to prepare, evaluate and adopt reasonable regulations regarding the placement and construction of wireless telecommunications facilities, so that such regulations are applied to wireless telecommunications providers in a nondiscriminatory manner. There are a wide variety of systems and approaches to local regulation of wireless facilities, and a careful balancing is required to meet the goals of the City and to comply with applicable law and FCC rules. Staff continues to review the Municipal Code, sample ordinances and regulations, and to check those samples against federal law, state law, and FCC rules. 4. In order to prevent frustration of these studies and the implementation of new regulations, the public interest, health, safety, and welfare require immediate enactment of this Ordinance. The absence of this Ordinance would impair the orderly and effective implementation of contemplated Municipal Code amendments, and any further authorization of these uses within the City during the period of the moratorium may be in conflict with or may frustrate the contemplated updates and revisions of the Municipal Code. Because four (4) wireless facility applications are currently pending, it remains likely that one or more of those applications may result in a facility that would be incompatible with the new regulations. Until staff and the City Council can complete their review and deliberations, this potential for frustration of the studies and implementation remains. 5. Due to multiple inquiries for permits allowing the construction of wireless telecommunications facilities in the City, the City finds that there is a current and immediate threat to the public health, safety, or welfare and that this Ordinance is necessary in order to protect the City from the potential effects of uncoordinated and conflicting construction of wireless telecommunication facilities in the City, multiple S: \Community Development \Everyone \City Council Agenda Reports \ten day report . wireless . 81701 . d2 . doc '� (,• Q Report by the City of Moorpark Concerning Its Interim Prohibition on Wireless Facilities August 17, 2001 Page 3 obstructions of traffic and commerce on city streets, the aesthetic impacts to the City, and other similar or related effects on property values and the quality of life in the city's neighborhoods. Until staff and the City Council can complete the review and deliberations necessary to adopt new regulations, it is not feasible to adopt new regulations, and the risks remain the same to the health, safety, and welfare of the citizens of Moorpark, as well as to the aesthetic interests of the City, the preservation of property values and quality. of the City's neighborhoods and commercial districts. S: \Community Development \Everyone \City Council Agenda Reports \ten day g report.wireless.81761.d2.doc ' ) C. U.. ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, EXTENDING ORDINANCE NO. 272, ENACTING A MORATORIUM ON THE ISSUANCE OF PERMITS FOR CONSTRUCTION OR PLACEMENT OF WIRELESS TELECOMMUNICATIONS FACILITIES IN THE CITY, AND DECLARING THE URGENCY THEREOF THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS: SECTION 1. Findings. The City Council hereby finds, determines and declares that: A. On July 18, 2001, the Moorpark City Council adopted as an urgency measure Ordinance No. 272 enacting a moratorium on the issuance of permits for construction or placement of wireless telecommunications facilities in the City, pending the study of the City's existing regulations and possible revision of same to ensure that the public health, safety, and welfare are not negatively impacted. B. City staff has submitted the report required by Government Code Section 65858(d) to be submitted before any extension of a previously adopted interim zoning ordinance. C. City's staff report indicates that further study concerning the City's existing regulations needs to be conducted or completed before any final recommendations can be submitted to the Council and certain of the circumstances that led to the adoption of Ordinance No. 272 remain unresolved. Therefore, it is appropriate to extend Ordinance No. 272 for the period of one hundred thirty -five (135) days to allow sufficient time for the city staff to complete their study and to propose any recommended regulations or amendments. D. The City Council finds that this Ordinance is necessary for the protection of the health, safety and welfare of the citizens of Moorpark, as well as, the preservation of the quality of the city's neighborhoods and commercial districts. ATTACHMENT NO. 2 °9L ;� (Y( Ordinance No. Page 2 E. The City Council finds, determines, and declares that a current and immediate threat to the public health, safety, or welfare exists, and the approval of additional permits or any other applicable land use entitlements, which are required for the construction or placement of new wireless telecommunications facilities within the City, would result in a threat to public health, safety, or welfare. The facts constituting such an urgency are set forth in Sections A -E, inclusive of this Ordinance. SECTION 2. Interim Regulations. Pursuant to the authority of Section 65858 of the Government Code of the State of California, and the inherent police powers of the City of Moorpark, Ordinance No. 272 is hereby extended for a period of one hundred thirty -five (135) days from its previous expiration date, now extending its expiration date through January 14, 2002. SECTION 3. Severability. If any section, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 4. Notice of Adoption. The City Clerk of the City of Moorpark is hereby directed to publish this Ordinance, or the title hereof as a summary, pursuant to state statute. SECTION 5. Vote Required. In accordance with Government Code §65858, as an urgency moratorium ordinance, this Ordinance requires a four - fifths (4/5) vote of the entire City Council. SECTION 6. Urgency Measure - Effective Date. This Ordinance shall be introduced, passed, and adopted at one and the same meeting as an urgency measure. As an urgency moratorium, this Ordinance shall become effective immediately and shall continue in full force and effect, unless amended or repealed, for a period of one hundred thirty -five (135) days. The reasons for F- F* City of Moorpark Status of Wireless Communications Facilities ATTACHMENT N0. 3 Permit Applicant Status Location Description Number CUP 95 -01 Cellular One Constructed Ventura County 60 -foot high monopole with 8 (Now AT &T) Waterworks District panel antennas and equipment Reservoir Facility building, with landscaping. east of Moorpark College CUP 96 -01 Pacific Bell Constructed Ventura County 60 -foot high monopole with 6 Mobile Services Waterworks District panel antennas and 2 Reservoir Facility east equipment cabinets with of Moorpark College landscaping. CUP 97 -04 Nextel Constructed Ventura County 60 -foot high monopole with 15 Communications Waterworks District #2, panel antennas, three omni 7150 Walnut Canyon Road antennas and equipment building, pine tree configuration with landscaping. CUP 97 -05 Cox Constructed Ventura County 6, 14 -foot high antennas and Communications Waterworks District equipment cabinets, with Reservoir Facility east landscaping. of Moorpark College CUP 99 -06 Pacific Bell Constructed Ventura County 70 -foot high antenna pole Wireless Waterworks District #2, with a total of 18 antennas. 7150 Walnut Canyon Road and equipment building, pine tree configuration with landscaping. CUP 00 -04 Tacit Constructed Ventura County 6, 15 -foot high antennas with Communications Waterworks District landscaping. for Verizon Reservoir Facility east Wireless of Moorpark College S.ICommunity DevelopmentlEveryonelCiry Council Agenda Reportstc- 010829 tablemireless Comm.doc Page 1 C" R City of Moorpark Status of Wireless Communications Facilities ATTACHMENT NO. 3 Permit Applicant Status Location Description Number CUP 00 -03 Compass Telecom Approved, no Ventura County 12 antennas on 12 -foot high Services permits Waterworks District support poles with issued Reservoir Facility landscaping. east of Moorpark College CUP 00 -07 Tetra Tech In process Peach Hill Reservoir -3 antenna panels on poles and (formerly site south of Westport equipment building with Tacit) for AT &T Street proposed landscaping. CUP 00 -08 The Consulting In process 7100 block of Walnut 38 -foot high utility pole Group for Canyon Road with 2 equipment cabinets Pacific Bell with screen wall. Wireless/ Cingular communications CUP 01 -01 InfraNext, Inc. In process Peach Hill Reservoir 3, 16 -foot high antenna poles for Sprint PCS site south of Westport and equipment area. Wireless Street CUP 01 -02 InfraNext, Inc. In process Roof of existing vacant 6 panel antennas with 5 for Sprint PCS movie theatre at 543 equipment cabinets. Wireless Los Angeles Avenue. CUP 98 -05 Air Touch Denied 13931 Los Angeles 15, 6-foot-high antennas. Cellular Avenue S:ICommunity DevelopmentlEveryonelCity Council Agenda Reportslcc- 010829 table wireless Comm.doc Page 2 MACKENZIE & ALBRITTON LLP ONE POST STREET, SLATE 500 SAN FRANCISCO, CAI.IFORMA 94104 TELEPHONE 415 / 288 -4000 F.4CS1M1LE 415 / 288 -4010 SENDFR'S EMAIL: PALBRI rTONOWALLP.COM August 17, 2001 VIA FACSINIILE AND E -MAIL Wayne Loftus Director of Community Development City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Joseph M. Montes, Esq. Burke, Williams & Sorensen 611 W. 6`h St. 25 "' Floor Los Angeles, CA 90017-3126 Re: Wireless Moratorium for the City Moorpark; CUP No. 2001 -07 Dear Messrs. Loftus and Montes: We are counsel to AT &T Wireless. On August 7, 2001 we wrote to you to express our client's concerns about the recently enacted and soon to be extended moratorium on approvals of wireless communications facilities within the City of (Moorpark (the "Moratorium ") and to exclude its pending application for a wireless telecommunications facility from the Moratorium. Please consider this letter as a formal request on behalf of our client, AT &T Wireless, for an exception from the Moratorium for the pending application for Peach Hill Reservoir (13200 Westport Street) CUP No. 2001 -07. The moratorium, if applied to delay issuance of the permit beyond applicable deadlines under the Permit Streamlining Act, will violate our client's rights under both state and federal law. Because our client's applications were pending when the City adopted the moratorium, on July 19, 2001, neither processing nor approval of the applications should be affected by the moratorium. "[A] moratorium, enacted after an application is complete, does not toll the time period for action on the application under [the Permit Streamlining Act]." Selimw v. City Council, 216 Cal.App.3d 259, 269 (4" Dist. 1989). Under the federal Telecommunications Act of 1996, the City must act on our client's siting requests "within a reasonable period of time," taking all relevant factors into consideration. 47 U.S.C. § 332(c)(7)(13)(ii). By delaying beyond the permitting deadlines imposed by California law, as discussed above, the City would violate the Telecommunications Act. ATTACHMENT 4 '14.'t. 1.ti Wayne Loftes Joseph Montes, Esq. August 17, 200 i Page 2 We regret that we have not received a response from you since our August 7, 2001 letter despite follow up phone calls. As previously mentioned, our client is concerned about the timely processing of its application. Please therefore let me know as soon as possibl:: whether the City will grant the requested exception from the moratorium. This letter should not be interpreted in any way as lessening our prior request to minimize any extension of the Moratorium. We look forward to your response and appreciate your kind attention to this matter. Very truly yours, J Paul B. Albritton cc: Daniel Smith, Esquire %'lark Loschky, Esquire Leslie Daigle ii 413-283AC` -_ 8 ",'01 f 28 PNA '2r5 MACKENZIE & ALBRITtON LLP ONE POYI*Sla-'tt.SLi t:SUO SAN t RANIC)C0. CA: i1 :0.tii A 94!04 NlIgLiSt 7, 00! VIA FACSIMILE AND EMAIL Wayne Loftus Director of Community Development City of ikloorpark 799 Moorpark Avenue Moorpark. California 93,021 .Joseph M. lvIontes, Esq. BM-ke, Williams & Sorensen 61 1 W. 6'" St. 25''' Floor Los Angeles, CA 90017-33 126 Re: Wireless Niloratorium for the Citti 1doorpark Dear \- lessrs. Loftus and t1de tes We are counsel to AT& l" Wireiess, with our princiaal area of practice in telecommunications law• particularly reai estate, access, and land use issues. We arc writing to express our client's concerns about the recently enacted and soon to be extended moratozium on approvals of wireless communications facilities, wi hin tile City of Moorpark (the \ "Ioratorium ") k-'e understand that a hearing on the extension; of'the Moratorium h:,s been scheduled tnr August 29. 2001 ATT Wireless seeks to exclude its pcn(ling application: for a mreless telecoinn;tznicat,, ons facility From tht N"Ioratorium and to limit the term of any extension to the Moratorium. 1 "i &T Wireless is a telephone c(nporati)n providing wireless lei COIriI1lUiniCatlOnS service; to the general public. It has been issued a Certificate of Public Convenience and Necessity by the California Public Utilities Commission and is also licensed and regulated by the Federal Communications Commission ("FCC "). Because AT&T Wireless is charged \, ith providing adequate service to the public, we are concerned about delays caused by any local moratorium on approval of wireless facilities. As explained below, the adoption and extension of the proposed moratorium;, as well as application of the Moratorium to the pending ATT Wireless application, violate both state and federal law. The Moratorium is not .Iustitied Under State Law First. as a mater of state law, it is not necessary or ..urgent" ti-ithin the meaning of the Government Code that the City suspend the issuance of'pennits while a wireless ordinance is drafted. Subdivision (c) ol'Governrnent Code Section 65858 states in part that the City may not adopt or extend any interim ordinance absent a finding of a "current and immediate threat to the public health, safety, or welfare" and that approval ol•additional use Permits "Would result in that threat to public health, safely, or welfare." (Emphasis added.) In other words, there must be facts which reasonably constitute an urgency to permit the imposition ofthe Moratorium. Sutter Bay Associates v. County of Sutter 68 Cal.Rptr.2d 492, 58 Cal.App.4th 860 (3rd Dist. 1997). Although the moratorium ordinance adopted by ATTACHMENT 5 ,'T 415 28� 40? si 8:` ?i�1 1 28 P,M 15 Wayne Loftes Joseph Montes, Fsq. iiuCIltSt 7, 2l)t)I Page 2 \iootpark recites such argency, there are insufficient facts stated to r�--asonahly suppor. a finding of u;-ency. We are aware of less than a handful of wireless telecommunications facility applications on file in the City of Moorpark: clearly an insufficient number to vvarraw a finding of a current and immediate threat to public health, safely or welli,re. Similarly, despite the City's "grave concerns" there is no heavy construction associated wilh the installation of anti proposed wireless telecommunications facility in "vloorpark and certainly none involved with tfle proposed ATT facility which involves pole mounted antennas around a water tank. Adoption of a moratorium is not a prerequisite to the development of an ordinance or wireless guidelines. ATT Wireless supports and is willing to provide technical assistance and cooperation to permit the City to expeditiously adopt "reasonable regulations regarding the placement and consul;ction of wireless telecommunica; ions, taciIities" as provided under the N•loratorium. However, in the interim: the City has at its disposal existing regulations which permit the imposition of adequate conditions to protect [lie health, safety and welfare of it citizerry through Conditional Use Permit requirements presently imposed on all wireless telecommunications lacilties (See Section 17.20.050 '`Communications Facility "). For example, to obtain a Conditional IJso Pennit, any wireless telecommunication; facility must be "compatible with the character of surrounding development ", "mint not he detrimental to the public interest, health, safety, convenience or welfare' and must be "compatible with the scale, visual character and design of surrounding properties" (Sze Section I7.44.030(A)(2) oh the City's Municipal Code). Protections ;:rider [h: cutnn[ NIt!IlK:1l al Code conCrnn there is no urgency to justi!v adopting a tnorasorium pending cotrnpletion of reasonable wireless regulations. The Moratorium and its Extension Violate the Telecommunications Act of 1996 AT&T Wireless, as a telephone utility, is subject to the Telecommunications Act of 1996 (the "Telecommunications Act"). To promote consistent national slandard� fir siting telccorrtmunications facilities. Congre -,s included the National wlre!ess Feleconunutnications Sitir,k Policy as Section 704 oFthe Telecommunications act. This Section, while preserving local govennnent control over traditional land use issues, sets forth certain imponant limitations: • The City muss act on siting r,-quests "within a reasonable period of time," taking all relevant factors into consideration.' • The City's land use controls "shall not prohibit or have the elluct oFprohibiting the provision of personal wireless, services." Based on the fore'oing provisions, cours have almost uniformly held that local moratoria %iolate the Telecommunications Act. "Generally, courts have found that the institution of moratoriums violates the "Telecommunications Act." Sprint Spectrum, L.P. v. Town of North Stoning-ton, 12 F. Supp. 2d 247, 256 (D. Conn. 1998). "[A] moratorium against the expansion of personal wireless services would violate the Telecommunications Act." Omnipoint Communications, inc. v. City of Scranton, 36 F. Supp. 2d 222, 232 -233 (M.D. Pa. 1999). 47 t,.S C. ` 332tc)t7)(13)(ii). 47 U S.0 C 332(c)(7)(13j(i)(I1). 'a::.�I� Ittc^ I�tar�?n_a 8 ajhr €I'c' ii 415- 288 -4010- 16'517;01 7.1 29 4;5 Wayne Loftes .Joseph Montes, F .,q. August 7. 2001 Page 3 In tact. moratoria both limo and short hav;; been struck down by co arts throughout the counirv. in Sprint Spectrum. 1.. P. ti. Town of Farmington, 1997 WL 631 104, "6 (D. Conn. i997), the federal district court held that a nine month moratorium enacted by the to,xn was in \ iolation of the Telecommunications Act. See also Sprint Spectrum, I.. P. v. Jefferson County, 968 F. Sapp. 1457 (N. D. Ala. 1997)(court struck down third in series of moratoria): Sprint Spectrum, L. P. v. Town of'W'est Seneca, 659 N.Y.S. 2d 687, 172 Misc. 2d 287, 289 (N.Y. Sup. 1997)(1hree month moratorium struck down, and six month time period from application date without decision deemed tuireasonably long). One early case did permit a city to institute a six -month moratorium upon the issuance of Permit-, for the installation of telecommunications equipment. See Sprint Spectrum v. City of .Medina, 924 F. Supp. 1036 (W.D. \N ash. 1996). However, the Medina decision has in etiery instance been strictly limited to its facts. The most critical tact relied upon by the court is that the City of \- ledina imposed its six -month moratorium Just five days after enactment of the TOICCOmmUniCalions .act of 1996, when the City expected a sudden "flung of application., " Medina, supra, 914 F. Supp. at 1037. The courts in Farmington and Jetierson. County reviewed the \ledina decision and lound it inapplicable to moratoria e „acted lifteen months and sixteen months after the passage of the Telecommunications .act. in the present case we are dewing with a moratorium imposed five years after the Telecommunications Act, and there is no sudden "flurry” ol' applications. Under all the cases that folio» `Medina, the \loratornur, would violate the Telecommunications Act. The City is suhject to suit in f derai coup for violating the Telecommunications Act_ with liability for a prevailing plaintiffs costs and attorney's fees. See 47 U.S.C. fi 332(c)(7)(B)(v): A'T &T wireless v. City of Atlanta, 210 F.3d 1322 (11" Circuit, 2000). The Moratorium Does Not Comply with the 1998 FCC- 1.S(;AC /CT1A Guidelines Section 1(I-1) of tho NMoratotiutn suggests that it is in accord with the Guidelines for Facilitv Sinn hi;plementation agreed to August 5, 1998 betsNeen the FCC; Local and Stat: Government Advisory Committee and the Cellular Telephone Communications Industry \ssociation (the "1998 Guidelines "). While ATT Wireless adheres to the premise of the 1998 Guidelines that "local governments and the wireless industry should work cooperatively to facilitate the siting of wireless telecommunications facilities" it is clear from the guidelines that moratoria should only be adopted when truly necessary and must comply with the Telecommunications Act. In compliance with the Telecommunications Act. the 1998 Guidelines provide that "during the time that a moratorium is in ef;ect, the local government should ... continue to accept and process applications" (1998 Guidelines Soc. I(C)). As noted above, in violation of both the State and Federal law, the Moratorium obligates City staff to refrain from processing pending applications. Further the 1998 Guidelines indicate that in those circumstances where a moratorium may he justified (which is not the present case) "the issues that can be addressed during a moratorium can be resolved within 180 days" (1998 Guidelines Sec. i(B)). In sum, the Moratorium does not comply with the 1998 Guidelines with respect to the processing of pending applications and the length of'the proposed extension. The Moratorium Should Not Affect Pending Applications AT &T Wireless has one application pending in the City, which the City has accepted as complete under the Permit Streamlining Act (Cal. Govt. Code 4ti 65920, et seq.). As a Pam A :rifton !ack2r_ e & Aibrition 415 -2Bt; -4310 :Z[BiMl _.1 :?G PIN! 5/5 Wayne Loftes Joseph vlontes. Esq. fiugust 7, 2001 Page 4 matter of state law, the City must act on this application within the deadlines imposed by the Pen-nit Streamlinin!? Act, without regard to the Moratorium. "[A] moratorium, enacted alter an application is complete, does not toll the time period for action on the application under [the Permit Streamlining Act]." Selinger %. City Council. 216 Cal. App. 3d 259, 269 (4" Dist. 1989). Because our client's application was deemed complete and was pending when the City adopted the Moratorium, on July 19, 2001, neither processing nor approval of the application should be affected by the Moratorium. In addition, as noted abovc, the 1zderal TeleconununWations Act requires the City to act on siting requests "within a reasonable period of time," taking all mlevant Iactors into consideration. 47 U.S.C. § 332(C)(7)(B)(ii). By delaying beyond the deadlines imposed by Calil;Olnia law,, as discussed above, the City would � iolate the Telecommunications Act. Conclusions Fhere it no evidence of urgency Justifying a blanket moratorium. The adoption and extension of the proposed moratorium, particularly as it applies to pending applications, iolates the terms of the 1998 Guidelines and the Telecommunications Act. For these reasons, %ke respectfully stlbtnit that the City should not extend the :Moratorium. In any event, the City Should process the pending A7 T Wireless application under the current Municipal Code, v ithout regard to the \loratortwn as adopted or extended. Very truly yours. l Vf Paid Albritton cc: Daniel Smith, Esquire Clark Loschky. Lsquire Leslie Daigle Robed Chacon Minutes of the City Council Moorpark, California Page 4 August 29, 2001 address the issue of how giving the City time to develop standards and criteria for the placement and appearance of wireless telecommunications facilities would impact AT &T. She referred to the letter from AT &T's attorneys addressing the legal ramifications of not processing their application in a timely manner. Gerald Goldstein, a Moorpark resident aesthetics for cellular towers. He possibility of undergrounding cell discussed the power line interference Avenue and how it affects reception of radio transmissions. discussed the discussed the sites, and he on Los Angeles cell phones and Ms. Traffenstedt announced two written statement cards were received from Moorpark residents who are in support of the extension of the moratorium ordinance. The names of those submitting written statement cards are as follows: Palma and Jim Friery Helen and Paul Stone In response to Councilmember Millhouse, Mr. Loftus replied that he does not have any data on what the useful life of a cellular antenna is once it is installed at a site. In response to Councilmember Millhouse, Mr. Sanders, attorney for Sprint PCS, replied that most of the leases on private property run between 20 and 30 years. He stated he would suspect that antennae in some form would last about that period of time. Mayor Hunter closed the public hearing. Mr. Montes read the title of Ordinance No. 273. MOTION: Councilmember Harper moved and Councilmember Mikos seconded a motion to introduce Ordinance No. 273 and waive full reading. The motion carried by unanimous voice vote. MOTION: Councilmember Harper moved and Councilmember Wozniak seconded a motion to adopt Ordinance No. 273. The motion carried by unanimous voice vote. 5. CLOSED SESSION: