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HomeMy WebLinkAboutAGENDA REPORT 2001 1205 CC REG ITEM 09EITEM ' CIF I.10ORrAM'., r � I Ci'.y Courc= of IZ -5 -2001 _ ACT`.)N: n4. Publw-Pewrir 4o 4,d�necF ��.L,s�lult Gx� MOORPARK CITY COUNCIL D4MnQAibr-:uw% Ond ^ r AGENDA REPORT gy :� TO: Honorable City Council FROM: Deborah S. Traffenstedt, Acting Director of Community Development �:DS 7 DATE: November 29, 2001 (CC Meeting of 12/5/01) SUBJECT: Consider Draft Ordinance Regulating Wireless Communications Facilities within the City of Moorpark by Adding Chapter 17.42 and Amending Chapters 17.08 and 17.20 of Title 17, Zoning, of the Moorpark Municipal Code (Zoning Ordinance Amendment No. 2001 -03) BACKGROUND The Planning Commission held a public hearing on November 19, 2001, and adopted Resolution No. PC- 2001 -418 recommending approval of the Wireless Communications Facilities Ordinance as amended (see Attachment I to this report for Planning Commission Resolution and revised draft ordinance) . The staff report submitted to the Planning Commission is included as Attachment II to this report and contains more detailed background information, including discussion of the interim moratorium ordinance. The moratorium on the acceptance and processing of permits as well as issuance of permits for construction or placement of Wireless Communications Facilities will expire on January 14, 2002, unless extended. Staff intends to include an item on the City Council's December 19, 2001 agenda to extend the moratorium until the new ordinance becomes effective (30 days after adoption). Staff modeled the draft ordinance under consideration after the City of Alhambra's ordinance, which has been in effect for approximately 18 months. Where the attached draft ordinance differs from the Alhambra ordinance is summarized in the Planningt Commission report and in the following Discussion section. The draft ordinance submitted to the City Council with the Planning Commission Resolution (Attachment I) will add a new Chapter 17.42, Honorable City Council December 5, 2001 Meeting Paae 2 entitled "Wireless Communications Facilities," to the City's Zoning Code. In addition, a definition for Wireless Communications Facilities has been proposed to be added to the definitions section in Chapter 17.08, and the two tables which list the uses permitted by zone in Chapter 17.20 are also proposed to be revised to show Wireless Communications Facilities as requiring a Planning Commission Conditional Use Permit (CUP). There are definitions and regulations for Minor and Mayor Facilities included in Chapter 17.42 and a Planning Commission CUP is required for both with the same application submittal requirements. The differences in the permitting process for Minor and Major Facilities are basically tied to how the facility is mounted (ground, building, utility, or roof) and the height, screening, and setback requirements. A Major Facility would be one with a higher aesthetic impact potential, such as ground mounted or roof mounted, may not be entirely screened from view, and the height may exceed the maximum building height of the zone. One example of a Major Facility is a Latticed Tower. Because of the higher aesthetic impact potential of a Major Facility, there is a recommended guideline included in the ordinance that a Major Facility should not be located within 200 feet of any property containing a residential use. As identified in the Planning Commission staff report, staff has determined that the proposed Zoning Code amendment is exempt from the California Environmental Quality Act based on Section 15308 of the State California Environmental Quality Act Guidelines (Actions by Regulatory Agencies for Protection of the Environment). DISCUSSION Following is a summary of the issues raised at the Planning Commission public hearing on November 19, that were requested by the Planning Commission to be addressed by staff: • Add language to address application information to be submitted pertaining to access to a site and security. (See Attachment I, page 10 of draft ordinance.) • Consider whether an exemption should be included for "Microcell" technology. (Staff does not currently support an exemption, but has modified the Minor Facilities definition and setback language to allow such facilities to be approved with a Planning Commission CUP to address aesthetic concerns. See Attachment I, pages 4 and 12 of draft ordinance, and following discussion.) • Consider an Administrative Permit process for pre- approved locations addressed in Section 17.42.090 of draft ordinance. (No change made to draft ordinance, see following discussion.) Honorable City Council December 5, 2001 Meeting Page 3 • Add language to permit a temporary wireless communications facility to be approved when the City Council has declared a state of emergency. (See Attachment I, page 20 of draft ordinance for language allowing the Director of Community Development or City Emergency Operations Center Director to approve a Temporary Use Permit for Wireless Communications Facilities needed during a declared emergency.) • Add language requiring the posting of a bond for removal of equipment should provider go out of business and equipment is abandoned. (See Attachment I, page 20 of draft ordinance for language added regarding CUP conditions of approval for removal of an abandoned Facility, including a requirement that a surety be provided prior to Building Permit approval to guarantee removal of equipment and structures if the City determines the Facility to be abandoned and a public nuisance per Chapter 1.12 of the Municipal Code. The Council may want to discuss whether a cash or bank account type of surety should be required, due to the problems associated with ensuring that a bond is not cancelled without notification to City.) • Review setback language in Section 17.42.050.E. (See Attachment I, page 12 of draft ordinance for edits to setback language to clarify setback when a Facility is proposed within 200 feet of a residential use.) • Make other minor corrections as discussed by staff at the November 19 public hearing. (See legislative format in Attachment I, draft ordinance, including editorial corrections.) The Planning Commission considered public testimony considering potential health and safety impacts and property value impacts. The Assistant City Attorney advised the Planning Commission that the City could not regulate such concerns and that the draft ordinance was primarily written so as to regulate aesthetic impacts. Letters were received from Verizon Wireless and from the legate counsel representing AT &T Wireless (see Attachment III). Verizon Wireless requested a continuance of the Planning Commission public hearing, which was not supported by staff or the Commission due to the pending expiration of the moratorium ordinance. The Assistant City Attorney advised the Planning Commission that no changes to the ordinance were appropriate in response to the AT &T Wireless comments. Representatives from Sprint gave verbal comments to the Planning Commission at the November 19 hearing. The Sprint representatives requested that "Microcell" technology be exempted and provided photo exhibits of existing "Microcell" installations (see Attachment III). To briefly summarize, the "Microcell" technology requested to be exempted by Sprint includes the attachment of antennas to existing utility poles (such as power Honorable City Council December 5, 2001 Meeting Page 4 poles, street lights and signal poles) along with a "Microcell" box also attached to a utility pole and a power distribution cabinet that is ground mounted and can be screened with landscaping. As summarized in the list of issues on the preceding page, staff is not recommending exempting Wireless Communication Facilities that are utility mounted, due to aesthetic concerns, although language has been added to the draft ordinance so as to not preclude these types of Minor Facilities. The Planning Commission considered the proposed amendment to Chapter 17.20 to allow Wireless Communications Facilities in all zones with a Conditional Use Permit and did not recommend any change. The Commission concurred that there were sufficient controls in the draft ordinance (new Chapter 17.42) to allow such Facilities to be conditionally permitted in all zones with a Planning Commission Conditional Use Permit (CUP). The City Council should also note that Lattice Towers are restricted by the language in the draft ordinance to only be conditionally permitted in the M- 2 (Limited Industrial) and I (Institutional) Zones. The Council may want to discuss whether any other zone districts would be appropriate for this type of a Major Facility. The Planning Commission also directed staff to schedule a Commission workshop, following City Council adoption of the Wireless Communications Facilities Ordinance, to discuss and provide recommendations for pre- approved locations as addressed in Section 17.42.090 of the draft ordinance. STAFF RECOMMENDATION 1. Open the public hearing, take public testimony, and close public hearing. 2. Waive full reading and introduce Ordinance No. for first reading. 3. Direct staff to schedule extension of the moratorium ordinance for the December 19, 2001 regular meeting. Attachments: I. Planning Commission Resolution and Draft Ordinance II. Planning Commission Staff Report III. Letters from Verizon Wireless and AT &T and Sprint "Microcell Exhibits RESOLUTION NO. PC- 2001 -418 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MOORPARK, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL OF THE CITY OF MOORPARK CONSIDER ADOPTION OF A ZONING ORDINANCE AMENDMENT (ZOA- 2001 -03) TO ADD CHAPTER 17.42 AND AMEND CHAPTERS 17.08 AND 17.20 OF TITLE 17, ZONING, OF THE MOORPARK MUNICIPAL CODE TO REGULATE WIRELESS COMMUNICATIONS FACILITIES (APPLICANT: CITY OF MOORPARK) WHEREAS, Public Notice having been given in time, form, and manner as required by law, the Planning Commission of the City of Moorpark held a Public Hearing on the proposed Zoning Ordinance Amendment at a special meeting of November 19, 2001, and has determined that the amendment is exempt from the provisions of the California Environmental Quality Act (CEQA) Guidelines, Section 15308; and WHEREAS, at its public hearing conducted on November 19, 2001, on the Zoning Ordinance text amendment, the Planning Commission took testimony from all those wishing to testify on the amendment, closed the public hearing on the matter and reached its decision on that date. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF MOORPARK, DOES RESOLVE AS FOLLOWS: SECTION 1. The Planning Commission finds that the proposed amendment to Title 17, Zoning, to regulate Wireless Communication Facilities is exempt from the California Environmental Quality Act based on Section 15308 of the State California Environmental Quality Act Guidelines. SECTION 2. The Planning Commission hereby recommends that the City Council approve adoption of an ordinance regulating Wireless Communications Facilities within the City of Moorpark by adding Chapter 17.42 and amending Chapters 17.08 and 17.20 of Title 17, Zoning, of the Moorpark Municipal Code, as shown on Exhibit A attached hereto and incorporated herein by this reference. ATTACHMENT J- i Resolution No. PC- 2001 -418 Page 2 PASSED, APPROVED, AND ADOPTED THIS 19th DAY OF NOVEMBER, 2001. AYES: Commissioners DiCecco, Haller and Landis, Vice Chair Otto, and Chair Parvin NAYES: ABSENT: ABSTAIN: Janice Parvin, Chair ATTEST: Deborah S. Traffenstedt Acting Director of Community Development Attachment: Exhibit A - Draft Ordinance WOR- m PRI- SERV\City Share \Comunity Development\Everyone\PC FINAL RESO \pc 418 ZOA 2001 -03 W ireless.doc ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, REGULATING WIRELESS COMMUNICATIONS FACILITIES WITHIN THE CITY OF MOORPARK BY ADDING CHAPTER 17.42 AND AMENDING CHAPTERS 17.08 AND 17.20 OF TITLE 17, ZONING, OF THE MOORPARK MUNICIPAL CODE WHEREAS, on July 19, 2001, the City Council adopted Interim Ordinance No. 272, enacting for a period of 45 days a moratorium on the issuance of permits for construction or placement of Wireless Telecommunications Facilities in the City and declaring the urgency thereof; and WHEREAS, on August 29, 2001, the City Council considered the status of interim prohibition of Wireless Telecommunications Facilities and extension of Ordinance No. 272, and adopted Ordinance No. 273, extending Ordinance No. 272 for a period of 135 days; and WHEREAS, on July 19, 2001, the Planning Commission conducted a duly noticed public hearing on a proposed ordinance to regulate Wireless Communications Facilities within the City of Moorpark and adopted a resolution recommending City Council approval of the draft ordinance; and WHEREAS, on December 5, 2001, the City Council conducted a duly noticed public hearing on a proposed ordinance to regulate Wireless Communications Facilities within the City of Moorpark and reached its decision. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council finds that the proposed amendment to Title 17, Zoning, is exempt from the California Environmental Quality Act based on Section 15308 of the State California Environmental Quality Act Guidelines. SECTION 2. Title 17, Zoning, of the Moorpark Municipal Code is hereby amended by adding Chapter 17.42 to read as follows: Ordinance No. Page 2 "Chapter 17.42 WIRELESS COMMUNICATIONS FACILITIES Sections: 17.42.010 PURPOSE. 17.42.020 DEFINITIONS. 17.42.030 APPLICABILITY. 17.42.040 DISTANCES. 17.42.050 REGULATIONS FOR BOTH MAJOR AND MINOR WIRELESS COMMUNICATIONS FACILITIES. 17.42.060 REQUIRED FINDINGS FOR BOTH MAJOR AND MINOR WIRELESS COMMUNICATIONS FACILITIES. 17.42.070 ADDITIONAL REGULATIONS FOR MINOR FACILITIES. 17.42.080 ADDITIONAL REGULATIONS FOR MAJOR FACILITIES. 17.42.090 PUBLIC PROPERTY FACILITIES. 17.42.100 APPEAL OR REVIEW AND NOTICES. 17.42.110 RESERVATION AND RIGHT TO REVIEW PERMITS. 17.42.120 FACILITY REMOVAL. 17.42.130 TEMPORARY USE DURING DECLARED EMERGENCY. 17.42.010 PURPOSE. A. The purpose of these requirements and guidelines is to regulate the location and design of Wireless Communications Facilities as defined herein to facilitate the orderly deployment and development of wireless communications services in the City of Moorpark, to ensure the design and location of Wireless Communications Facilities are consistent with policies of the City previously adopted to guide the orderly development of the City of Moorpark to promote the public health, safety, comfort, convenience, quality of life and general welfare of the City's residents, to protect property values and enhance aesthetic appearance of the City by maintaining architectural and structural integrity, and by protecting views from obtrusive and unsightly accessory uses and Facilities. B. In adopting and implementing the regulatory provisions of this Ordinance, it is the intent of the Moorpark City Council to further the objectives specified above, and to create reasonable regulations in conformance with the provisions of the Telecommunication Act of 1996 without unnecessarily burdening the federal interests in ensuring access to telecommunication services, in promoting fair and effective competition among competing communication service providers, and in eliminating local restrictions and regulations that, with regard to antennas, may preclude reception of an acceptable signal quality S ^,Community Development \Everyone \Ordinances \011205 CC Mtg Draft Wireless Communications Facilities Ord.doc P i ! = 1 Ordinance No. Page 3 or may unreasonably delay, prevent, or increase the cost of installation, maintenance, or use of such antennas. C. The Moorpark City Council has found and determined that these requirements and guidelines for Wireless Communications Facilities are necessary to attain such purposes. D. These regulations are intended to supersede any applicable provisions of Title 17, Zoning, hereinafter in this Chapter referred to as the Moorpark Zoning Code, pertaining to such antenna structures and appurtenant communication equipment and to establish minimum requirements and flexible guidelines for the governance of Wireless Communications Facilities, taking into consideration the rapid technological advances and the proliferation in use of Radio Communication services. 17.42.020 DEFINITIONS. For purposes c phrases and their herein. The word directory. If a Section 17.08.010 referenced. A this Ordinance, t derivations shall "shall" is always definition is not of the Moorpark he following words, terms, have the meanings given mandatory and not merely listed in this Chapter, Zoning Code shall be "Accessory Equipment" means any equipment installed, mounted, operated or maintained in close proximity to an Antenna Structure to provide power to the Antenna Structure or to receive, transmit, or store signals or information received by or sent from an antenna. "Antenna Structure" means an antenna, any structure designed specifically to support an antenna, and /or any appurtenances mounted on such structure or antenna. "Colocation" or "Colocated" means the location of multiple antennas which are either owned or operated by more than one (1) service provider at a single location and mounted to a common supporting structure, wall or building. "Commercial Mobile Service" means any mobile service that (1) is offered in return for monetary compensation, (2) is available to the public or a substantial portion of the public and (3) provides subscribers with the ability to access or receive communication from the public switched telephone network. Commercial Mobile Service includes, but is not limited SACommunity Development \Everyone \Ordinances \011205 CC Mtg Draft Wircicss Communications Facilities Ord.doc Ordinance No. Page 4 to, paging service, wireless data transmission, cellular telephone service, specialized mobile radio service (SMR) , and personal communications service (PCS). "Disguised Facility" means any Wireless Communications Facility, which is designed to blend into the surrounding land, typically one that is architecturally integrated into a building or other concealing structure. "Fixed Wireless Service" means any service providing Radio Communication to or from Antenna Structures at fixed and specified locations which are not designed to be moved during operation and which offers the ability to access or receive communication from the public switched telephone network. "Ground Mounted" means a Wireless Communications Facility that is Mounted to a pole, Lattice Tower or other freestanding structure that is specifically constructed for the purpose of supporting an antenna. "Lattice Tower" means a tower -like structure used to support antennae and comprised of up to two or more steel support legs. "Major Facility" means a Wireless Communications Facility that is either Ground Mounted or Roof Mounted; provided that the Roof Mounted Facility is not screened on all four sides by solid material that is architecturally compatible with the surrounding wand uses or exceeds the maximum building height of the applicable zoning district in which the Major Facility is located. "Microwave Communication" means the transmission or reception of Radio Communication at frequencies of a microwave signal (generally, in the 3GHz to 300GHz frequency spectrum). "Minor Facility" means a Wireless Communications Facility that is either (4+ Wall Mounted, 42} Utility Mounted, or 4-4+ Roof Mounted I l eempatible- ,„zth the surreunding -and uses, -- and- -dees- ner- e3ceeed � t-- he -faam-i> i building - height e€- the - applieab1e- zening distriems -in which- -t-he Miner F,aeility`is leaated as follows: (1) If Wall j Mounted, the Facility is architecturally compatible with the building structure and surrounding land uses; (2) If Utility Mounted, the Facility is required to be compatible with S \Community Development \Everyone \Ordinances \011205 CC Mtg Draft Wireless Communications facilities Ord.doc •` Ordinance No. Page 5 surrounding land uses, must be proposed for attachment to an existing above - ground structure, and comply with all other , provisions of Section 17.42.070.B, 17.42.070.C, and 17.42.070.D of this Code; and (3) If Roof Mounted, the entire Facility must be screened with solid material on four sides, must be architecturally compatible with surrounding land uses, and must not exceed the maximum building height of the applicable zone district in which the Facility is located. t "Mobile Service" means any temporary service providing Radio Communication to or from at least one (1) antenna that is designed to be moved during operation or used during halts at unspecified locations; or as otherwise defined in 47 USCS Section 153 and interpreted by the Code of Federal Regulations and the Federal Register. "Mounted" means any manner of attachment, support, or connection, whether on ground or on a structure. "Multipoint Distribution Service" means a microwave communication service that delivers video programming directly to subscribers, including multichannel, multipoint distribution services, instructional television fixed services, and local multipoint distribution services, or as otherwise defined by the Section 207 of the Telecommunications Act of 1996, Section 1.4000 of Title 47 of the Code of Federal Regulations and any interpretive decisions thereof issued by the Federal Communications Commission. "Radio Communication" means the transmission and /or reception of impulses, writing, signs, signals, pictures, and sounds of all kinds through space by means of electromagnetic waves. "Roof Mounted" means a Facility that is mounted on any structure that is not specifically constructed for the purpose of supporting antennae, in any manner that does not satisfy either the definition of Wall Mounted or Utility Mounted, and is typically mounted on the roof of a building. "Satellite Antenna" means a device used to transmit and /or receive radio or electromagnetic waves between terrestrially and orbitally -based uses. This definition is meant to include, but not limited to, what are commonly referred to as satellite earth stations, TVRO's (Satellite Television Receiving Antenna), and satellite microwave antennas. SACommunity Development \Everyone \Ordinances \Ol 1205 CC Mtg Draft Wireless Communications Facilities Ord.doc Ord- rance No. Page 6 "Stealth Facility" means any Wireless Communications Facility which is disguised to appear as another natural or artificial object that is prevalent in the surrounding environment or which is architecturally integrated into a building or other concealing structure. "Utility Mounted" means a Facility that is Mounted to an existing above - ground structure that is specifically designed and originally installed to support electrical power lines, cable television lines, street lighting, traffic signal equipment, park lighting or a structure on public or private property deemed by the City to be similar in nature. "Wall Mounted" means a Facility that is Mounted on any vertical surface or nearly vertical surface of a building or other existing structure that is not specifically constructed for the purpose of supporting an antenna i.e., the exterior walls of a building, an existing parapet, the side of a water tank, the face of a church steeple, or the side of a freestanding sign such that the highest point of the Antenna Structure is at an elevation equal to or lower than the highest point of the surface on which it is Mounted. "Wireless Communications Facility" or "Facility" means ar. Antenna Structure and any appurtenant Facility or Accessory Equipment located within City limits and that is used in connection with the provision of Wireless Service. "Wireless Service" means any type of Wireless Service providing Radio Communication that satisfies the definition of Commercial Mobile Service, Fixed Wireless Service, or Wireless Video Service. "Wireless Video Service" means any service providing Radio Communication, which delivers video programming. 17.42.030 APPLICABILITY. A. All Wireless Communications Facilities which are erected, located, Mounted or modified within the City of Moorpark on or following the effective date of this Ordinance shall comply with this Chapter, subject to the categorical exemptions under Paragraph (D) of this Section, provided that: 1. All Facilities for which applications were determined complete by the PngCommunity Development S: \Community Development\Everyone \Ordinances \011205 CC Mtg Draft Wireless Communications Facilities Ord.doc i �' Ordinance No. Page 7 Department prior to the effective date of this Ordinance shall be exempt from the regulations and guidelines of this Chapter and shall be subject to Chapter 17.52 of the Moorpark Zoning Code regulating nonconforming structures and uses and any other applicable permit requirements of the Moorpark Zoning Code. 2. All Facilities for which building permits were issued by the City of Moorpark prior to the effective date of this Ordinance shall be exempt from the regulations and guidelines of this Chapter, and shall be subject to the regulations and guidelines of Chapter 17.52 of the Moorpark Zoning Code, regulating nonconforming structures and uses, unless and until such time as Paragraph (A) of this Section applies. B. All Facilities for which building permits and any extension thereof have expired shall comply with the provisions of this Chapter. C. All Facilities constructed or erected prior to the effective date of this Ordinance that are in violation of applicable laws, ordinances, or other regulations shall be considered an illegal nonconforming Facility, no longer permitted, and shall be subject to abatement as a nonconforming use pursuant to Section 17.52.060 of the Moorpark Zoning Code. D. The following uses shall be exempt from the provisions of this Chapter until such time as federal regulations are repealed or amended to eliminate the necessity of the exemption: 1. Any Antenna Structure that is one (1) meter (39.37 inches) or less in diameter and is designed to receive direct broadcast satellite service, including direct -to -home satellite service, as defined by Section 207 of the Telecommunications Act of 1996, Title 47 of the Code of Federal Regulations, and any interpretive decisions thereof issued by the Federal Communications Commission; 2. Any Antenna Structure that is two (2) meters (78.74 inches) or less in diameter located in a commercial or industrial zone and is designed to transmit or receive Radio Communication by Satellite Antenna; 3. Any Antenna Structure that is one (1) meter (39.37 inches) or less in diameter or diagonal measurement and is designed to receive Multipoint Distribution Service, provided j S \Community Development \Everyone \Ordinances \01 1205 CC Mtg Draft Wireless Communications Facilities Ord.doc d : o Ordinance No. Page 8 that no part of the Antenna Structure extends more than eight feet (81) above the principal building on the same lot. E. The following uses shall be exempt from the provisions of his Chapter, so long as the Antenna Structure complies with all other zoning requirements: 1. Any Antenna Structure that is designed and used solely to receive UHF, VHF, AM, and FM broadcast signals from licensed radio and television stations. 2. Any Antenna Structure that is designed and used solely in connection with authorized operations of an amateur radio station licensed by the FCC (i.e., a "HAM" radio transmission). 17.42.040 DISTANCES. For the purpose of this Chapter, all distances shall be measured in a straight line without regard to intervening structures, from the nearest point of the proposed Major Facility to the relevant property line at a point five ( 5 ) feet above ground level. 17.42.050 REGULATIONS FOR BOTH MAJOR AND MINOR WIRELESS COMMUNICATIONS FACILITIES. A. Both Major and Minor Facilities shall be erected, located, Mounted, operated and maintained at all times in compliance with this Chapter and all applicable laws and regulations of the City, the State of California, and the United States of America. B. Both Major and Minor Facilities are conditionally permitted as a Wireless Communications Facility in the applicable zoning district as set forth in Section 17.20.050, Table 17.20.050, and Section 17.20.060, Table 17.20.060, of the Moorpark Zoning Code. C. Application Requirements and Procedures. 1. Both Major and Minor Facilities proposed to be erected, located, Mounted, operated and maintained at all times shall require a Conditional Use Permit (CUP) . Each applicant applying for a CUP shall submit a completed CUP application in accordance with the requirements set forth in Chapter 17.44 of S:\Community Development\Everyone \Ordinances \OI 1205 CC Mtg Draft Wireless Communications Facilities Ord.doc ordinance No. Page 9 the Moorpark Zoning Code, and such additional or different requirements as are made applicable by this Chapter. 2. The scaled Site Plan and Facility Elevations required for the City CUP application shall include the following information: a. The proposed location of the Wireless Communications Facility including access; b. The elevations of the Wireless Communications Facility with dimensions identified; structure(s); C. The height of any existing or proposed d. The location of any Accessory Equipment; e. The location of all guy - wires; f. The location of all above and below ground wiring and connection cables; g. The location of existing or proposed easements on the property; h. The height of any panels, microwave dishes, or whip antennas, above ground level; i. The distance between the Antenna Structure and any existing or proposed Accessory Equipment; and j. Any other necessary information as may be required by the Director of Community Development. 3. Any application that is improperly submitted or fails to contain all of the information as required by the Moorpark Zoning Code, including this Chapter, shall be deemed incomplete. 4. Each application shall contain a letter of justification accompanied by written documentation that explains and validates the applicant's efforts to locate the Facility in accordance with the screening and site selection guidelines set forth in Paragraph (D) of this Section. SACommunity Development\Everyone \Ordinances \011205 CC Mtg Drafl Wireless Communications Facilities Ord.doc ordnance No. Page 10 5. Each application shall contain a narrative and map that discloses the exact location and nature of any and all existing Facilities that are owned, operated or used by the applicant within the City of Moorpark, or within five (5) miles of its geographic borders, as well as any proposed or planned sites that may reasonably be known to the applicant at the time the application is made. 6. Each application shall contain a narrative and appropriate maps that disclose the geographic area(s) within the City of Moorpark that will be serviced by the proposed Facility, the geographic area(s) bordering the City of Moorpark, if any, that will be serviced by the proposed Facility, the nature of the service to be provided or purpose of the Facility, the reasons, if any, why the applicant cannot locate the Facility outside the City of Moorpark, and the efforts, if any, that applicant has made to locate the Facility outside the City of Moorpark. 7. Each application shall contain Aa radio - frequency (RF) report prepared by a qualified RF engineer acceptable to the City to demonstrate that the proposed Facility, as well as any Colocated Facilities, complies with current Federal RF emission standards. This RF report shall also include signal strength exhibits. 8. Each application shall contain — C-computerized visual assessments or other exhibits equivalent in a form and manner acceptable to the Director of Community Development showing the before and after visual appearances of the proposed Facility. j 9. Each application shall contain a description of the required maintenance visits to the site and security proposed to protect the site from vandalism and trespass. 410. Each application shall contain Aa preliminary environmental review in accordance with the City submittal requirements, with special emphasis placed upon the nature and extent of visual, public, health, and safety impacts. 141. Each application shall contain Eevidence of any required licenses and approvals to provide Wireless Services in the City. S•\Community Development\Everyone \Ordinances \011205 CC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 11 1-12. Notwithstanding any permit that may be granted in accordance with this Chapter, the Facility shall be erected, located, Mounted, operated and maintained at all times in compliance with this Chapter and all applicable laws, regulations and requirements of the Building Code, and every other code and regulation imposed or enforced by the City of Moorpark, the State of California, and the United States Federal Government. Applicants are separately required to obtain all applicable building and construction permits that may be required prior to erecting or installing the Facility. 1-213. The Director of Community Development shall determine applicable entitlement processing fees and deposits 4: or the application, as established by City Council resolution, including any applicable contract staff fees and /or deposits for the purpose of peer review of the CUP application submittals. D. General Development Requirements. The Facility shall comply with each of the following requirements: 1. A Facility shall not bear any signs or advertising devices other than certification, public safety, warning, or other required seals or required signage. 2. Any and all Accessory Equipment, or other equipment associated with the operation of the Facility, including but not limited to transmission cables, shall be located within a building, an enclosure, or underground vault in a manner that complies with the development standards of the zoning district in which such equipment is located. In addition, if equipment is located above ground, it shall be visually compatible with the surrounding buildings and either shrouded by sufficient landscaping to screen the equipment from view, or designed to match the architecture of adjacent buildings. If Accessory Equipment will be visible from a residential area or an arterial street, the applicant shall provide a solid masonry block wall that will screen the equipment from the residential area or another material, such as landscaping, that is acceptable to the Director of Community Development. If no recent and /or reasonable architectural theme is present, the Director of Community Development may require a particular design that is deemed suitable to the subject location. 3. The Facility's exterior finish shall be comprised of non - reflective material(s) and painted, screened, or S: \Community Devclopmcnt \Everyone \Ordinanccs \011205 CC Mtg Draft Wireless Communications Facilities Ord.doc Crdirance No. Page 12 camouflaged to blend with the materials and colors of surrounding buildings, structures, topography and vegetation. 4. All screening used in connection with a Wall Mounted and /or Roof Mounted Facility shall be compatible with the architecture, color, texture, and materials of the building or structure to which it is attached. 5. Facilities may not be illuminated unless specifically required by the Federal Aviation Administration or other governmental agencies. 6. The applicant and the property owner if different from the applicant shall consent to future Colocation of other Facilities on or with the applicant's Facility, unless technological requirements preclude that Colocation. E. Setback Requirements and Guidelines. If the Facility is proposed to be located in an Open Space, Agricultural or Residential zone or within two hundred (200) feet of a residential use in any zone district, then the Facility shall at a minimum comply with the main structure setback requirements for such zone as specified in Tables 17.24.020A and 17.24.0209 of the Moorpark Zoning Code, with the exception of Utility Mounted Facilities, if all other requirements in Sections 17.42.070.9, 17.42.070.C, and 17.42.070.D can be met. In Commercial and Industrial zones, the Facility shall at a minimum comply with the building setback requirements from the edge of roadway right -of -way as specified in Table 17.24.020E of the Moorpark Zoning Code, with the exception of Utility Mounted Facilities, if all other requirements in Sections 17.42.070.B, 17.42.070.C, and 17.42.070.D can be met. In all instances, the determination of need for a larger setback for the Facility shall be considered by the City in connection with the processing of the CUP. F. Screening and Site Selection Guidelines. In addition to the above requirements, the City shall consider the following factors in conjunction with the processing of a CUP. 1. The proposed Facility shall be designed to either be a Disguised Facility or Stealth Facility, taking in::o consideration alternate sites that are available, including Colocation. . j S: \Comunity Developmcnt \Everyone \Ordinances \011205 CC Mtg Draft Wireless Communications Facilities Ord.doc m ` Ordinance No. Page 13 2. The proposed Facility should be screened or camouflaged by existing or proposed new topography, vegetation, buildings, or other structures. Any such improvements shall be appropriate for and compatible with the site and surrounding area. 3. The total size of the proposed Facility should be compatible with surrounding and supporting structures. 4. If feasible, the location of the proposed Facility should conform to the following in order of preference: a. Colocated with an existing Facility or located at a pre- approved location; b. Attached to an existing structure such as an existing building, communication tower, church steeple or utility; C. Located in an industrial zoning district; d. Located in a commercial zoning district. 5. Proximity of the proposed Facility to residential structures and to boundaries of residentially zoned districts. 6. The availability of suitable alternative locations for the Facility. 7. The nature of existing uses on adjacent and nearby properties. 8. Proposed ingress and egress to the Facility. 17.42.060 REQUIRED FINDINGS FOR ALL WIRELESS FACILITIES. A. Wireless Communications Facilities Findings. Ir. addition to the required findings for Conditional Use Permits contained in Section 17.44.030.A.2 of the City of Moorpark Zoning Code, the following Findings are required for every Major and Minor Conditional Use Permit (CUP) for Wireless Communications Facilities: 1. That the proposed Facility will not create any significant blockage to public views; and S: \Community Development \Everyone \Ordinances \011205 CC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 14 2. That the proposed Facility will be an enhancement to the City due to its ability to provide additional communication capabilities; and 3. That the proposed Facility will be aesthetically integrated into its surrounding land uses and natural environment; and 4. That the proposed Facility will comply with FCC regulations regarding interference with the reception or transmission of other Wireless Service signals within the City and surrounding community; and 5. That the proposed Facility will operate in compliance with all other applicable Federal regulations for such Facilities, including safety regulations; and 6. That the public need for the use of the Facility has been documented. B. If the Planning Commission does not approve an application for such Conditional Use Permit, the Planning Commission shall make a written determination supported by findings as required by 47 U.S.C. § 332(c)(7)(B)(iii). 17.42.070 ADDITIONAL REGULATIONS FOR MINOR FACILITIES. In addition to the requirements of Sections 17.42.040 and 17.42.060 of this Chapter, the following requirements shall apply to the following types of Facilities: A. Minor Facility Height Requirements. Notwithstanding any other provision in the Moorpark Zoning Code, no Minor Facility shall exceed the maximum building height for the applicable zoning district unless such Facility receives Planning Commission approval, has been designed as a Disguised or Stealth Facility, and: 1. The applicant demonstrates that exceeding the height limitation is necessary for operation of the Facility; or 2. The Facility is Colocated, or contains adequate space suitable for future Colocation, and the height in excess of zoning requirements is necessary to the proposed shared use. B. Utility Mounted Facilities - Vertical Extensions. A Utility Mounted Facility may, if approved by the Planning S \Community Development \Everyone \Ordinances \01 1205 CC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 15 Commission, exceed the maximum building height limit for the applicable zoning district. The extent that the Utility Mounted Facility exceeds the height of the existing utility pole or structure and the need for such height increase shall be taken into consideration by the City in conjunction with the processing of the CUP for the Utility Mounted Facility. C. Utility Mounted Facilities - Horizontal Extension. The extent that the Utility Mounted Facility protrudes or extends horizontally from the existing utility pole or structure shall be taken into account by the City in conjunction with its processing of a CUP for a Utility Mounted Facility. A Utility Mounted Facility may not protrude or extend horizontally more than eighteen (18) inches from the existing utility pole or structure unless the applicant demonstrates a need for such extension. D. Additional Requirement for All Utility Mounted Facilities. Any Accessory Equipment accompanying or that forms part of the Utility Mounted Facility, and is located on the ground in the area surrounding the utility pole or structure, shall be visually compatible with the surrounding environment, shrouded by sufficient landscaping to screen the Accessory Equipment from view, and designed to match the architecture of adjacent buildings. If Accessory Equipment will be visible from a residential area or an arterial street, the applicant shall provide a solid masonry block wall that wi l screen the equipffient frees —the residential area or another material, such as landscaping, that will screen the equipment from view, as determined t=hat is acceptable -t-e� the Planning Commission. 17.42.080 ADDITIONAL REGULATIONS FOR MAJOR FACILITIES. In addition to the requirements of Sections 17.42.050 and X7.42.060, the following requirements shall apply to the following tvoes of Facilities: A. Location Requirements. 1. No portion or extension of a Major Facility shall protrude beyond property lines or extend into any portion of property where such Facility is not itself permitted; provided, however, that the City may approve the location of guy wires In a required setback if such approval is consistent with the guidelines and requirements set forth in this chapter. S \Community Development\Everyone\Ordinances\011205 CC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 16 2. Latticed Towers shall not be located in any Zone except M -2 and I, and shall not be located within enetwo hundred (200) feet of any property containing a residential structure. 3. A Ground Mounted Facility shall not be located in a required parking area, vehicle maneuvering area, vehicle/ pedestrian circulation area or area of landscaping such that it interferes with, or in any way impairs, the utility or intended function of such area. 4. A Ground Mounted Facility shall not be permitted unless the reviewing authority makes the additional finding that, based upon evidence submitted by the applicant, no existing building or support structure can reasonably accommodate the proposed Facility. Evidence supporting this finding will be reviewed by the reviewing authority and may consist of any of the following: a. No existing buildings or support structures are located within the geographic area proposed to be served by the applicant's Facility. b. Existing buildings or support structures are not of sufficient height or structural strength to satisfy the applicant's operational or engineering requirements. C. The applicant's proposed Facility would create electromagnetic interference with another Facility on an existing structure, or the existing Facility on a building or support structure would create interference with the applicant's proposed Facility. d. The costs, fees, or contractual provisions required by a property owner, or by an incumbent Wireless Service provider, in order to Colocate a new Facility on an existing building or structure, or to adapt an existing building or structure for the location of the new Facility, are unreasonable. e. There are other limiting factors that render existing buildings and structures unsuitable for use by the applicant. 5. If the proposed Major Facility cannot be Colocated, it must be sited at least 1,500 feet from any existing Major Facility unless the reviewing authority S. \Community Developmcnt\L•veryone \Ordinances \011205 CC Mtg Draft Wireless Communications Facilities Ord.doc } Ordinance No. Page 17 determines that a shorter distance is required for technological reasons, or that it would result in less visual obtrusiveness in the surrounding area. B. Additional Design Requirements. 1. A Ground Mounted Facility shall be secured from access by the general public with a fence of a type or other form or screening approved by the Planning Commission. 2. A Ground Mounted Facility shall be covered with a clear anti - graffiti material of a type approved by the Planning Commission. The Planning Commission may grant an exception to this requirement if the applicant demonstrates to the satisfaction of the Planning Commission that there is adequate security around the Facility to prevent graffiti. C. Height Requirements. Notwithstanding any other provision in the Moorpark Zoning Code, no Major Facility shall exceed the maximum building height for the applicable zoning district in which the Facility is proposed to be located, nor shall a Roof Mounted Facility exceed the height of the structure on which it is mounted by more than the minimum amount necessary for operation and safety, not to exceed ten (10) feet. Any application for a permit exceeding these height limits shall not be approved unless the Planning Commission determines that the Major Facility has been designed as a Disguised or Stealth Facility and: 1. The applicant demonstrates that exceeding the height limitation is reasonably necessary for operation of the Facility; or 2. The Facility is Colocated, or contains adequate space suitable for future Colocation, and the excess in height is reasonably necessary to the proposed shared use. D. Additional Screening and Site Selection Guidelines. The following screening and site selection guidelines shall be considered by the City in conjunction with the processing of all Major Facility CUPS: 1. A Major Facility should not be located within two hundred (200) feet of any property containing a residential use. SACommunity Dcvelopment\Everyone \Ordinances \011205 CC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 18 2. If technical data require the placement of a Major Facility to be located within 1,500 feet of an existing Major Facility, under Subsection 17.42.080.A.5, the new Major Facility should be located at least five hundred (500) feet from the existing Major Facility. 3. A Ground Mounted Facility should be located in close proximity to existing above ground utilities, such as electrical tower or utility poles (not scheduled for removal or undergrounding in the next eighteen (18) months), light poles, trees of comparable height, water tanks and other areas where the Facility will not detract from the image or appearance of the City. 4. A Roof Mounted Facility that extends above the existing parapet of the building on which it is mounted shall-should be screened by a material and in a manner that is compatible with the existing design, color and architecture of the building. 5. A Roof Mounted Facility, requiring the placement of any guy wires, supporting structures, or Accessory Equipment ehallshould be located and designed so as to minimize the visual impact as viewed from surrounding properties and public streets, including any pertinent public views from higher elevations. 6. No part of a Ground Mounted Facility should be located in any required setback. 17.42.090 PUBLIC PROPERTY FACILITIES. A. Pre - Approved Locations. 1. The City may approve by Resolution, following a duly noticed public hearing, a list of sites located on public property or within the public right -of -way and which are approved for Minor and Major Facilities. Each site shall include a description of permissible development and design characteristics, including but not limited to maximum height requirements. The City shall make said Resolution available to all persons upon request. The approved list of locations may be subsequently amended by Resolution from time to time. 2. All Facilities located on a public property site which is pre- approved in accordance with this Section following the effective date of this Ordinance must obtain approval of a • S \Community Development \Everyone \Ordinances \011205 CC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 19 CUP in accordance with the Moorpark Zoning Code, and any additional or different requirements made applicable by this Chapter. 3. All leases of a public property that is pre - approved in accordance with this Section shall be non - exclusive. The operator of a Facility located on such public property shall make the supporting structure of the Facility available to any other applicant wishing to Colocate to the extent technically feasible. B. Requirement for Separate Lease Agreement. Any lease of City -owned property for the purpose of erecting a Wireless Communications Facility shall require a negotiated lease agreement or other written license granted by the City of Moorpark. The existence of a lease agreement or license shall not relieve an applicant of any obligations to obtain appropriate permits hereunder or otherwise comply with the Moorpark Zoning Code. 17.42.100 APPEAL OR REVIEW AND NOTICES. Any applicant or the operator and /or owner of a Facility may appeal a final decision of the Director of Community Development or the Planning Commission. All appeals shall be processed in accordance with Moorpark Zoning Code Section 17.44.090 including payment of required fees. 17.42.120 RESERVATION OF RIGHT TO REVIEW PERMITS. A. Changed Circumstance. Any Conditional Use Permit granted or approved pursuant to this Chapter shall be granted or approved by the City and its Planning Commission with the reservation of the right and jurisdiction to review and modify the permit (including the conditions of approval) based on changed circumstances. Changed circumstances include, but are not limited to, the following in relation to the approved Facility as described and diagramed in the related Site Plan: increased height or size of the Facility; additional impairment of the views from surrounding properties; change in the type of antenna or supporting structure; changed color or materials; substantial change in location on the site; and an effective increase in signal output above or near the Maximum Permissible Exposure (MPE) limits imposed by the Revised Radio frequency Emissions Guidelines by the Federal Communications Commission. S \Community Development \Fveryone\Ordinances \011205 CC Mtg Draft Wircicss Communications Facilitics Ord.doc Ordinance No. Page 20 B. Additional Right to Revoke for Violation. The reservation of right to review any permit granted or approved hereunder by the City, its Planning Commission and /or City Council is in addition to, and not in lieu of, the right of the City, its Planning Commission and /or City Council to review and revoke or modify any permit granted or approved hereunder for any violations of the conditions imposed on such permit pursuant to Section 17.44.070 of the Moorpark Zoning Code. C. Modification of Permit /Colocation. Upon review, any changed circumstance as determined by the Director of Community Development shall require the application and approval of a modification to the original Conditional Use Permit, provided that any modification to accommodate Colocated Facilities may be approved administratively without the approval of the Planning Commission. 17.42.120 FACILITY REMOVAL. A. Discontinued Use. The operator of a lawfully erected Facility, and the owner of the premises upon which it is located, shall promptly notify the Director of Community Development in writing in the event that use of the Facility is discontinued for any reason. In the event that discontinued use is permanent, then the owner(s) and /or operator(s) shall promptly remove the Facility, repair any damage to the premises caused by such removal, and restore the premises as appropriate so as to be in conformance with applicable zoning codes. All such removal, repair and restoration shall be completed within ninety (90) days after the use is discontinued, and shall be performed in accordance with all applicable health and safety requirements. For purposes of this paragraph, a discontinued use shall be permanent unless the Facility is likely to be operative and used within the immediately following three -month neriod. B. Abandonment. A Facility that is inoperative or unused for a period of six (6) continuous months shall be deemed abandoned. An abandoned Facility shall be a public nuisance, subject to abatement pursuant to the provisions of Chapter 1.12 of the Moorpark Municipal Code. To facilitate removal of an abandoned Facility, all Wireless Communications Facility projects shall be conditioned to require a surety be provided to the City prior to building permit approval to guarantee removal of equipment and structures if the City determines the Facility to be abandoned and a public nuisance. S',Community Devclopment\Everyone\Ordinances\011205 CC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 21 C. Utilitv Mounted Facility Removal or Relocation. The CUP for all Utility Mounted Facilities shall be conditioned to require removal or relocation of equipment at the Facility owner's expense when a City- approved project requires relocation or undergrounding of the utility structure on which the Facility is mounted. 17.42.130 TEMPORARY USE DURING DECLARED EMERGENCY. A. Temporary Use. The Director of Community Development or City Emergency Operations Center Director shall have the authority to approve a Temporary Use Permit for Wireless Communications Facilities needed during a declared emergency. The Temporary Use Permit shall contain the conditions for removal of the temporary Facilities as soon as possible after the conclusion of the declared emerclencv." SECTION 3. Chapter 17.08, Section 17.08.010 is hereby amended to add the following definition: "`Wireless Communications Facility' means an Antenna Structure and any appurtenant Facility or Accessory Equipment located within City limits and that is used in connection with the provision of Wireless Service as is defined in Chapter 17.42 of this Code." SECTION 4. Chapter 17.20 is hereby amended consistent with Exhibit A, attached hereto and incorporated herein by reference, to amend Table 17.20.050 to add "Wireless Communications Facility" with a footnote regarding specific regulations for this use. SECTION 5. Chapter 17.20 is hereby amended consistent with Exhibit B, attached hereto and incorporated herein by reference, to amend Table 17.20.060 to add "Wireless Communications Facility" with a footnote regarding specific regulations for his use. SECTION 6. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter. The City Council hereby declares that it would have adopted this Chapter, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact S \Community Development�Lveryonc\Ordinanccs\011205 CC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 22 that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. SECTION 7. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 8. The City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark Star a newspaper of general circulation, as defined in Section 6008 of she Government Code, for the City of Moorpark, and which is hereby designated for that purpose. PASSED AND ADOPTED this ATTEST: Deborah S. Traffenstedt City Clerk day of Patrick Hunter, Mayor Attachments: Exhibit A - Revised Table 17.20.050 Exhibit B - Revised Table 17.20.060 2001. S•\Community Development \Everyone \Ordinances \011205 CC Mtg Draft Wireless Communications Facilities Ord.doc t Revised Table 17.20.050 Section 17.20.050 Permitted uses in open space, agricultural and special purpose zones. Permitted uses in open space, agricultural and special purpose zones are set out in Table 17.20.050. Note: An approved residential planned development permit is required for five (5) or more lots in the RA, RO, R- i and RE zones. The key for Table 17.20.050 is as follows: [Blank] Not permitted ♦ Permitted by zone clearance ■ Administrative permit • Planning commission- approved planned development permit 0 City council - approved planned development permit O Planning commission - approved conditional use permit City council- approved conditional use permit Table 17.20.050 PERMITTED USES IN OPEN SPACE, AGRICULTURAL AND SPECIAL PURPOSE ZONES EXHIBIT A �- OS AE RA RE RO R1 R2 RP D PPl I Agriculture and agricultural operations (no retail except as indicated). I Animal husbandry: Without structures With structures: total GFA per lot: Up to 1,000 sq. ft. Over 1,000 to 5,000 sq. ft. ♦ ♦ O Over 5,000 to 20,000 sq. ft. ♦ ♦ O Over 20,000 to 100,000 sq. ft. O O Over 100,000 sq. ft. O O Apiculture Fish farms O O O O O More animals than are permitted by Section 17.28.030C O O O Contractorsz service and storage yards and buildings O O O Crop production Wholesale nursery ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ O Firewood operations O O O Greenhouse, hothouses and the like: total GFA per lot :2 I I Up to 1,000 sq. ft. 1,000 to 20,000 sq. ft. ♦ ♦ O 20,000 to 100,000 sq. ft. O O O Over 100,000 sq. ft. O O Packing or prelim. processing, within structures: total GFA per lot:' Up to 5,000 sq. ft 5,001 to 20,000 sq. ft. • • O 20,001 to 100,000 s. ft. O O I O Over 100,000 sq. ft. O i Timber growing and harvesting, and compatible uses Dwellings, farm worker (more than one per lot O O O EXHIBIT A �- Revised Table 17.20.050 Wineries Up to 2,000 sq. ft. structure 2,001 to 20,000 s . ft. structure O O O Over 20,000 s. ft. structure O O i 0 With public tours or tasting rooms O O O Accessory structures To animal husbandry: SEE WITH STRUCTURES, ABOVE Dwelling, caretaker O O O More than one per lot O O O Offices O O O To crop production, including storage SEE GREENHOUSE Dwelling, farm worker: On lots of 40 acres or more O O O I On lots less than 40 acres O O O More than one per lot O O O I Offices O O O Produce stands, retail Accessory uses, including open storage Fuel storage Insecticides for pest control Packing, storage or prelim. processing of crops: Without structure' Airfields and landing pads and strips, private O O O O I O Animals, nonagricultural (see also Dwellings, accessory uses and structures SEE ANIMAL HUSBANDRY Kennels O O O Wild animals O Boardinghouses and bed - and - breakfast inns O O O O O i 0 Care facilities (see also H &SC and W &IC Day: Care of 12 or fewer persons (State law requirement related to day care facilities for 7 -42) ♦ ♦ ♦ ♦ ♦ ♦ ♦ i I i Care of 13 or more persons O O O O 1 O O O Intermediate: Care of 7 or more persons see definitions) O O O O O O ' i Residential: Care of 6 or fewer persons ♦ ♦ ♦ ♦ ♦ ♦ ♦ • Care of 7 or more persons O O 1 O O O O Cemeteries O O O O O O O O Accessory crematoria, columbaria and mausoleums O O O Churches, synagogue and other buildings used for religious worship O O O O O O O Clubhouses no alcoholic beverages) O O O O O O Communications facilities O O O O O O O O O O Drilling, temporary geologic (testing only) O O O O O i Dwelling, single -famil ' (R -P -D zone) ♦ ♦ ♦ ♦ ♦ ♦ ♦ • ♦ i Mobilehome, continuing nonconforming O O O O O O O O Affordable or elderly, built pursuant to Chapter 17.64 0 I 0 0 Dwellings, two - family, or two single- ♦ • Page 2 of 5 o %(- "y Revised Table 17.20.050 family dwellings Affordable or elderly, built pursuant to Chapter 17.64 i 0 0 Dwellings, multifamily • Affordable or elderly, built pursuant to Chapter 17.64 0 Dwellings, accessory structures For human habitation: Mobilehome/RV as temporary dwelling during construction ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ 1 Second dwellin ■ ■ ■ ■ ■ ■ ■ ■ Room additions ■ ■ ■ ■ ■ ■ ■ ■ Not for human habitation (with or without bathroom): ' Second story atio /deck ■ ■ ■ ■ ■ ■ ■ ■ Accessory structure over 120 s . ft. ■ ■ ■ ■ ■ ■ ■ ■ Over 1,000 sq. ft. per structure; or over 2,000 s . ft. per lot O O O 1 O ' O O O O Antenna, ground- mounted ' (noncommercial), above 40 ft.Z O O O O O O O O O Dwellings, accessory uses Animals'i Apiculture Aviaries O O 1 O O Farm animals (other than horses/ ponies) ♦ ♦ ♦ ♦ ♦ O Horses /ponies ♦ ♦ ♦ ♦ ♦ O Pet animals More animals than are permitted by Section 17.28.030C O O I O O O O O i Wild animals O ' O O Commercial uses, minor, for project residents i • Home occupation Storage, open"' Education and training Colleges and universities O O Schools, elementary and secondary (boarding and nonboardin O O 1 0 O O; O, O I Energy production from renewable sources O O O O Festivals and similar events, temporary outdoor • O O 1 O Government buildings O O O O O O O O Correctional institutions O i Fire stations O O O O O O O O O Law enforcement facilities O O O O O O I O Grading Within an overlay zone SEE CHAPTER 17.36 Hospitals I 1 O O Hospitals for large animals O I I I O Libraries O O O O O O O Mineral resource development O O O I Mining and accessory uses O O O Less than 9 months in duration O O O O Page 3 of 5 z i Revised Table 17.20.050 Public works maintenance ♦ ♦ ♦ ♦ ♦ I ♦ ♦ I ♦ Oil and gas exploration and production' O O O O Mobilehome arks O O O O O O Model homes /lot sales'; 2 years ♦ ♦ ♦ ♦ ♦ ♦ i i More than 2 years O O O O O O ' Motion picture and TV production, and related activities and structures O O O O O O O O O Temporary (maximum 42 days in any 180-day period) 1.2 ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ • I Pipelines and transmission lines, above round2 O O O O O O O O O O Public utility facilities, excluding offices and service yards' O O O O O O O O 1 O O Recreational sport and athletic facilities Ca s 2 O O O Campgrounds O O O O Community centers 1 O O O O O For farm workers and nonprofit farm community organizations O O 1 O Fields, athletic O O O O O O Geothermal spas Golf courses, except miniature gole O O O 1 O O O O O Parks ♦ O ♦ • ♦ ♦ I • • O With buildings O O O O O O O O O Periodic outdoorsporting events ! O Recreational vehicle parks2 O O ; O Recreation projects, city- initiated Caretaker recreational vehicle, accesso Retreats` Without sleeping facilities O O 1 O With sleeping facilities O O O O Riding stables O O O O With accessory lodging facilities O O Shooting ranges and gun clubs Signs (see also Section 17.20.040 and Chapter 17.40 ) ♦ ♦ ♦ ♦ ♦ ♦ ♦ I ♦ I Storage of building materials, temporary 2 ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ! Trees and native vegetation: Removal, relocation or damage' Within an overlay zone SEE CHAPTER 17.36 Uses and structures, accessory (other than to a ric. animals or dwellings) ♦ ! ♦ ♦ ♦ ♦ ♦ i ♦ ! ♦ O O ' To a use requiring a PD perirdt or CUP i Dwelling, caretaker SEE SECTION 17.44.080A Waste treatment and disposal O 1 O O 1 O 1 O Water production, storage and distribution facilities: Private purveyors" O O O O 1 O 1 O O O O 1 O Wireless communications facilities5 O O O O O O O O O O Notes for Table 17.20.050: Page 4of5 +;� Revised Table 17.20.050 1. See also Section 17.20.040. 2. There are specific regulations for this use; see Chapter 17.28. 3. See Chapter 17.32 for parldng standard. 4. Most public water facilities are exempt from these regulations. 5. There are specific regulations for this use: see Chanter 17.42. (Ord. 264 § 2 (part), 1999; Ord. 196 § 3 (part), 1994; Ord. 189 § 3 (8105 -4), 1994) Page 5 of 5 Revised Table 17.20.060 Section 17.20.060 Permitted uses in commercial and industrial zones. Permitted uses in commercial and industrial zones are set out in Table 17.20.060. Note: All uses located in the M -1 and M -2 zones which at the property line are adjacent to residentially zoned property shall require a city council- approved conditional use permit prior to occupancy of the building. The key for Table 17.20.060 is as follows: [Blank] Not permitted ♦ Permitted by zone clearance • Planning commission- approved planned development permit 0 City council- approved planned development permit O Planning commission- approved conditional use permit • City council- approved conditional use permit 0 Administrative permit required Temporary use permit Table 17.20.060 PERMITTED USES IN COMMERCIAL AND INDUSTRIAL ZONES EXHIBIT B C2 CO C1 CPD M1 M2 I GOT Airfields and landing ads and strips, private O O O Airports O O Alcoholic bevera e Establishments selling beer and/or wine with an eating lace 0 0 0 0 0 0 Establishments selling alcoholic beverages other than beer and wine with an eating lace ! ! ! ! ! ! Amusement and recreational facilities (see definitions in Ch. 17.08 • O • Amusement parks and carnivals O O Arcades O O Batting cages and golf driving ranges, indoor O O Bicycle racing tracks, outdoor O O Health club/ gymnasium see definitions • • O Martial arts and dance studios • • O Motion picture theaters, outdoor drive -in) O O Racetracks (for motorized vehicles), shooting ' ranges and stadiums PROHIBITED Art galleries, museums and artisan workshops ♦ 10 • O • Automobile repair, including component repair Automobile service stations • • i Banks and related financial offices and ' institutions • • • j • Barber, hairstylists, manicurists • Tanning centers • Bars, taverns and nightclubs' O O Botanical gardens • O • Care facilities: For 7 or more persons (see also H &SC and W &IC Da • • • • 1 • • Intermediate and residential O O i 1 O EXHIBIT B Revised Table 17.20.060 Care facilities: For 9 or more persons Da O Car washes, self - service or automatic O O Cemeteries, columbaria and mausoleums O O O Crematoria, accessory O O O Churches, synagogues and other buildings used for religious worship s O • • O O O i Clubhouses O • O O O O With alcoholic beverages • O O O O Club projects, temporary outdoor O O O O Communications facilities O O O O O O O Radio and television broadcasting stations O • • O O Conference center /convention center O O Contractor service and storage yards and buildings • Crop production Firewood operations O O Uses and structures, accessory Dwelling, farm worker maximum one per lot O O Fuel storage Offices O O Packing, preliminary processing, or storage of crops: Without structures` Produce stands, retail Dog and cat grooming O Dressmaking and tailor shops i • Drilling, temporary eolo is (testing only) O O Dwelling for superintendent or owner ! Dwelling, caretaker O Education and training Colleges and universities O • O Schools: Elementary and secondary (nonboarding on] za • • • • • O Schools: Professional, vocational, art, craft and self-improvement O O • • O Energy production from renewable sources O O Festivals and similar events, temporary outdoor O O Government buildings, excluding correctional institutions • • • • O • Fire stations • • • O O O Libraries and information center • Grading Within an overlay zone SEE CHAPTER 17.36 Grading not in conjunction with a development project Less than 5,000 cubic yards More than 5,000 cubic yards O Health club/ gymnasium see definitions • Health services such as professional offices and outpatient clinics • • • O O Ambulance services O • • O Hospitals O O 1 O Pharmacy, accessory retail, for prescription pharmaceuticals only • • • Page 2 of 7 Revised Table 17.20.060 Hotels, motels and bed - and - breakfast inns • • + Kennels (animal hospitals, boarding and O grooming--small animals Laboratories: research and scientific • • Medical and dental • • • • Laundry service laundromats • Laundry service (light) • • + • Libraries and information center • • • O ! Manufacturing associated with crafts and artisans O • Transmission and distribution equipment, and industrial apparatus Assembly, exhibits, demonstration O • O Manufacturing industries O • Alcoholic beverages Apparel and related products • • Bakery products Dressmaking and tailor shops • • • r Meat, seafood and poultry packing plants i Chemicals, gases and related products (see j definitions), excluding nerve gas O Slaughtering; refining and rendering of animal fats and oils ' Drugs, pharmaceuticals, perfumes, cosmetics and the like Sugar refmin • i • Soaps, detergents and cleaners Electrical and electronic machinery, equipment and supplies • • + Batteries O Household appliances O • Transmission and distribution equipment, and industrial apparatus O • Food and related products O • Alcoholic beverages Bakery products • • r Meat, seafood and poultry packing plants O Slaughtering; refining and rendering of animal fats and oils ' Sugar refmin Furniture and related fixtures • Instruments: measuring, analyzing and controlling • • Jewelry, silverware and plated ware • • Laundry service -- Laundromats ♦ r Laundry service - -light Laundry service - -heavy Leather and leather products • • i Tanning, curing and finishing of hides and skins i Lumber and wood products and processes • Cabinet work • • Plywood, particleboard and veneer manufacture; wood preserving I i Sawmills and planing mills Machinery, except electrical • r Office, computing and accounting machines • • ; Metal industries, primary Rolling, drawing and extruding O Metal products, fabricated • Ammunition Machine shops j • • Plating, polishing, anodizing, engraving and related operations O I • I Page 3 of 7 Revised Table 17.20.060 Musical instruments, including pianos and organs • • Paper and related products Parks -- public Products from paper and paperboard, including containers Parking lots • • • • Pens, pencils and other office and artists materials O ! Pharmacy, accessory retail, for prescription pharmaceuticals only • • i Personal goods • • Petroleum refining and related industries Photographic, medical and optical goods, and watches and clocks 1 • • 1 O Printing, publishing and related industries • • Print shops (up to 1,500 s . ft. of gross floor area • Rubber and plastics products O ' Tire retreading and recapping • Signs and advertising displays • • Stone, clay and glass products O Asbestos products Cement, concrete and plaster, and products fabricated therefrom O I Glass and glassware, pressed and blown, including flat glass I Glass products, made of purchased glass • • Rock crushing and sandblasting plants Textile mill products Tobacco products • Toys and amusement, sporting and athletic goods • • Transportation equipment O Motorcycles, bicycles and related parts • Martial arts and dance studios • Mineral resource development Mining and accessory uses Less than 9 months in duration O O Public works maintenance Oil and gas exploration and production' O O Motion picture and TV production, and related O O O O O O O activities and structures Temporary (maximum 47 days in any 180 -day ♦ ♦ ♦ ♦ ♦ A, period) 1.4 Offices: business, professional and • • • • O ; • administrative, except health and veterinary Ontical eoods I O Organizations (professional, religious, political, labor, trade, youth, etc. O Parks -- public Parking lots • • • • • O ! Pharmacy, accessory retail, for prescription pharmaceuticals only Photocopy/quick printers I • Photofinishing 1 -hour photo) • Pipelines and transmission lines, aboveground O O O O Produce stands, retail Propulsion (engine) testing Public utility facilities O O O O O O O Offices only • • • I • • 1 O • ! Page 4 of 7 + Revised Table 17.20.060 Service yards i ! • ! O • Recording studios and sound stages Office, computing and accounting machines • O O • Rental and leasing of durable goods Photo ra hic and optical goods O O O Bicycle rental • • Repair and reconditioning services O O • Automobile body work and painting O O O Automobile re air, including cornponent repair O O • Electrical and electronic machinery and equipment • • ! Heavy machinery repair, including trucks, tractors and buses I • I Instruments, including musical instruments i ! • • Office, computing and accounting machines • • Photo ra hic and optical goods • • ! Repair of personal goods such as jewelry, shoes ! and saddlery Restaurants, cafes and cafeterias Restaurants, cafes and cafeterias temporary outside eating Retail trade (see definitions in Chapter 17.08) includes retail -only nurseries and excludes lumber and building materials sales yards, pawnshops and liquor stores Antique store Outdoor sales area Outdoor sales area temporary Retail trade see definitions Christmas tree sales Feed stores Lumber and building materials sales yards Mail order houses nonstore Motor vehicle, mobilehome, recreational vehicle and boat dealers' Nurseries Uses and structures, accessory Outdoor sales and services, temporary (see definitions) Repair of products retailed Salvage yards, including automobile wrecking yards Service establishments Business (see definitions) Auction halls, not involving livestock Disinfecting and exterminating services Exhibits, building of Sign painting and lettering shops Personal (see defimitions) Signs (See also Section 17.20.040 and Chapter 17.40) Freestanding off -site advertising signs Swap meets Taxidermy Transportation services (see definitions) Bus and train terminals -00- .. MWEE Page 5 of 7 Ott: I ! I -00- .. MWEE Page 5 of 7 Ott: Revised Table 17.20.060 Stockyards, not primarily for fattening or selling livestock Truck storage, overnight • Trees and native vegetation: removal, relocation or dams e4 i Within an overlay zone SEE CHAPTER 17.36 Uses and structures, accessory SEE PRINCIPAL USE Dwelling, for superintendent or owner O O O O Dwelling, caretaker ' O O Game machines: three or fewer Recreational facilities, restaurants and cafes: for employees onl • • j Retail sale of products manufactured on -site Temporary buildings during construction Vaccination clinics, temporary, for pet animals Veterinary clinics, pet animals only' O O Warehousing and storage, including ministora e • • Automobile impound yards; dead storage of trucks, buses and the like Building materials, movers' equipment and the like: indoor • • Outdoor Fertilizer and manure Hazardous materials; including pesticides and herbicides ' Petroleum and gas (butane, propane, LPG, etc.); explosives and fireworks i Recreational vehicles ! • Storage of building materials, temporary Waste treatment and disposal see definitions Rec clin facilities and centers O • O Water production, storage and distribution facilities: Private purveyor S4,1 O O O ♦ ♦ O Wholesale trade • • Wireless communications facilities" O O O O O O O Zoological gardens, animal exhibits and I commercial aquariums O i O Notes for Table 17.20.060: 1. There are specific regulations for this use; see Chapter 17.28. 2. If there is an existing planned development permit for the site, the school facility could be permitted by approval of a modification to the existing permit. 3. For M -1, M -2 and C -O zones, a school facility would only be permitted where sponsored by or permitted within an industrial or commercial use on the same site. 4. See also Section 17.20.040. 5. Churches located in existing buildings with an approved planned development permit will require a modification to that permit. 6. If existing industrial building has approved IPD, restaurant will require approved minor modification to IPD. 7. Restaurants with temporary outside eating facilities shall receive a modification to the pianned Page 6 of 7 Revised Table 17.20.060 development permit. 8. Most public water facilities are exempt from these regulations. 9. The establishment must be an otherwise permitted or conditionally permitted use in the zone. 10. Applicable only to those properties within the boundaries of the Downtown Specific Plan Overlay Zone that have a base zoning of CO. 11. There are specific regulations for this use; see Chapter 17.42. (Ord. 265 § 2 (part), 1999; Ord. 247 § 1(E), 1998: Ord. 234 § 2, 1997; Ord. 233 § 3, 1997; Ord. 209 § 3, 1995; Ord. 200 § 3 (part), 1994; Ord. 189 § 3 (8105 -5), 1994) Page 7 of 7 ITEM J - �� CITY OF MOORPARK PLANNING COMMISSION AGENDA REPORT TO: Honorable Chair and Members of the Planning Commission FROM: Deborah S. Traffenst_e_dt, Acting Director of Community Development DATE: November 14, 2001 (PC Special Meeting of 11 -19 -2001) SUBJECT: Public Hearing for Consideration of Draft Ordinance Regulating Wireless Communications Facilities within the City of Moorpark by Adding Chapter 17.42 and Amending Chapters 17.08 and 17.20, of Title 17, Zoning, of the Moorpark Municipal Code (Zoning Ordinance Amendment No. 2001 -03) BACKGROUND On July 19, 2001, the City Council adopted Interim Ordinance No. 272, enacting for a period of 45 days a moratorium on the issuance of permits for construction or placement of wireless telecommunications facilities in the City and declaring the urgency thereof. On August 29, 2001, the City Council considered the status of interim prohibition of wireless telecommunications facilities and extension of Ordinance No. 272, and adopted Ordinance No. 273, extending Ordinance No. 272 for a period of 135 days (to end on January 14, 2002). The City Council's agenda report for the August 29 meeting and a copy of Ordinance No. 273 are included as attachments to this report (Attachments A and B) . DISCUSSION With the assistance of the City Attorney's office, staff has prepared a draft Wireless Communications Facilities Ordinance (Attachment C). The attached draft ordinance would add a new Chapter 17.42 to the City's Zoning Code and would also amend Chapter 17.08 to add a definition for "Wireless Communications Facilities" and amend Chapter 17.20 to incorporate Wireless Communications Facilities into Tables 17.20.050 and 17.20.060 as S: \Community Development \Everyone \Plan Reports \011119 PCStaffRpt wireless Communications Facilities 04 c r �� Planning Commission Agenda Report November 19, 2001 Special Meeting Zoning Ordinance Amendment No. 2001 -03 Wireless Communications Facilities Ordinance Page 2 a conditionally permitted use (requiring a Planning Commission Conditional Use Permit). The attached draft ordinance was based on the Wireless Communications Facilities Ordinance adopted by the City of Alhambra and drafted by Burke, Williams & Sorensen (our contract City Attorney). In comparison to the City of Alhambra's ordinance, staff has incorporated stricter language regarding setbacks and height and requirements for "Disguised Facility" or "Stealth Facility" design, included as an application requirement that the Director of Community Development shall determine any applicable contract staff fees and /or deposits for the purpose of peer review of the CUP application submittals, as well as incorporating language to achieve consistency with the other applicable sections of the Moorpark Municipal Code. Given the conditional use permit and siting (including setback) and design requirements, staff has listed Wireless Communications Facilities as conditionally permitted in all zones. The Planning Commission should discuss and provide guidance on the issue of which zones should have the Wireless Communications Facilities use shown as conditionally permitted. Staff's rationale in showing the Wireless Communications Facilities use as conditionally permitted for all zones was to be consistent with the existing "Communications Facilities" use and to maintain flexibility for the evolving design and size of these facilities. Please note the distinction between a "Minor Facility" and a "Major Facility" in the draft ordinance. The City Attorney's office has reviewed the draft ordinance (Attachment C) and has determined that the changes are acceptable and do not conflict with other laws. Because of the complexity of the subject and various federal regulations, including required conformance with the Telecommunications Act of 1996, staff has arranged for Bradley Wohlenberg, Assistant City Attorney, to attend the Planning Commission's November 19 Special Meeting. Mr. Wohlenberg drafted the City of Alhambra's Wireless Communications Facilities ordinance, and he reviewed the draft ordinance included as Attachment C to this report. Given the pending expiration of the interim ordinance and moratorium in January, the Planning Commission is being requested to adopt a resolution forwarding a recommendation to the City Council at either-the Special Meeting on November 19 or S: \Community Development \Everyone \Planning Commission Agenda Reports \ollilg PCStaffRpt Wireless Communications Facilities Ord.doc Planning Commission Agenda Report November 19, 2001 Special Meeting Zoning Ordinance Amendment No. 2001 -03 Wireless Communications Facilities Ordinance Page 3 the Planning Commission's Regular Meeting on November 26, 2001. The City Council's public hearing has already been noticed for December 5, 2001. If the new zoning ordinance is introduced for first reading on December 5 and second reading on December 19, staff will be recommending to the Council adoption of another ordinance extending the moratorium until the new ordinance takes effect (the minimum required extension would be through January 19) . Staff has determined that the proposed zoning Code amendment is exempt from the California Environmental Quality Act based on Section 15308 of the State California Environmental Quality Act Guidelines (Actions by Regulatory Agencies for Protection of the Environment). STAFF RECOMMENDATION 1. Open the public hearing, the public hearing; and 3. Adopt PC Resolution No. the draft ordinance. accept public comments, and close 2001- recommending approval of Attachments: A. City Council Agenda Report for August 29, 2001 Meeting B. Ordinance No. 273 C. Draft Planning Commission Resolution (Including Draft Wireless Communications Facilities Ordinance) S: \Community Development \Everyone \Planning Commission Agenda Reports \011119 PCStaffRpt Wireless Communications Facilities Ord.doc V fa. .ATTACHMENT A MOORPARK CITY COUNCIL AGENDA REPORT To: The Honorable City Council From: Wayne Loftus, Director of Community ITEM ./ - A • I. Development ; . kN; f.. I L.) 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 (601) 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 RECONMNDATION 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 r telecomm.f.81701.doc 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 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 report.wireless.81701.d2.doc 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 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 Ordinance No. Page 3 this urgency are declared and set forth in Section 1 of this Ordinance and are incorporated herein by reference. PASSED, APPROVED AND ADOPTED this 29th day of August, 2001. Patrick Hunter, Mayor ATTEST: Deborah S. Traffenstedt, City Clerk 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 42, 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 A S \Community DevelopmentEveryone\CGty Council Agenda Reportslcc• 010829 table wireless Comm doc 4 ^-ige 1 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 h SACommunity DevelopmentkEveryonelC ty Council Agenda Reports\cc. 010829 table wireless Comm doc Page I'V1ACHENZIE & ALBRITTON LLP ONE POST STREET, SUITE 500 SAN F2iii1CIsco. CALIFORNIA 91104 TEL EFFiJ „-E 415 / 2834CCO FACSIMILE Ili / 288 4M0 SE :,jrn'sE)AAIL'PAL3R:rTorq-? ALLP.CCbf August 17, 2001 VIA FACSIMILE AND E -MAIL Wayne Loftus Director of Community Development City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Joseph M. N•lontes, Esq. Burke, Williams & Sorensen 611 W. 6'h St. 25'h Floor Los Angeles, CA 90017 -; 126 Re: hVireless Moratorium for the City Moorpark; CUP No. 2001 -07 Dear I'Viessrs. Loftus and Nlontes: 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 Nlorator ium. 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 FIill Reservoir (13200 'Kestport Street) CUP No. 2001 -07. The moratorium, itapplied 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. "f A] moratorium, enacted after an application is complete, does not to!1 the time period for action on the application under [the Permit Streamlining Act]." SelinQer v. Citv Council, 216 Cal.App.3d 259, 269 (4'h 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)(B)(ii). By delaying beyond the permitting deadlines imposed by California law, as discussed above, the City would violate the Telecommunications Act. ATTACHMENT 4 Nk'avne Loftes Joseph hlontes, Esq. August 17, 200 i Page 2 We regret that we have not received a response fronn 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 possible whether the City will grant the requested exception from the moratorium. This letter should rot be interpreted in any way as lessening our prior request to minimize an }' extension of the Moratorium. We look forward to your response and appreciate your kind attention to this matter. Very truly yours, : 1 •Y 1 Paul B. Albritton cc: Daniel Smith, Esquire ;!'lark Loscliky, Esquire Le :lie Daigl° _ - -j `t . r a S a' D =�� Diu 2„ = �,, __ �5 MACKENZIE a ALBRrrTON LLP \�. FitAN(A -:c,1. CA�trnk\I: � Q-H01 !.0 simA 115 2S3 JC•:fl arr�t;ct - 7t i)1 VIA FACSINMILE AND EMAIL Wayne Loftus Director of Community Development City of Nloorpark 709 Moorpark Avenue Moor-park, California 93021 Joseph M. Moutes, Esq. Burke, W'Illiams &- Sorensen ()I 1 W. 6:" St. ?5' F11Or Lcs Angeles, CA 90017 -: 1'0 Re: Wireless Moratorium for the CitN Nlonrparh near \lessrs. Loftus and 1\10,Ves We arc counsel to ATSiT V-*!:21es;. with otir hiinctpa! area of practice ra ;eiecommur.i_ationS 1 2w. harnc ;;larly real eua'e, access, and land use issues We are writing empress Our client's concerns about the recently enacted and soon to he extended moratorium on appro,.als ofwireless communication; facilities A-01r. t:-,e City of Moorpark ithe-MoratO.iunl•'t W—, understand lha: a hearing on the e.vten,ion of the Moratorium a: he; n SChe(ILI!12 i for Att,us: 29. 20C; l ATT Wl!-- °leis seeks to exc!ude its pending c} rlica:n,r: tar a Aire!ess fik rn th.-- Nlorat ; ;:-iL:m and to limit the tetra G''any eater. wn to the MOratorium &-T Wire!ess is a telephone corporattoil pro-, lihno wireless tel.COInIllLI111Ca1h0ni >erviie:i to the genera! public. It has been issued a Certificate ol' 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 NVIreless is charged %. oh prw iding adequate service to the public, we are concerned about delays cans; d by any focal morworiuln on approval of wireie >• facilities. As explainal bell•,,, 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 Justified Under State Law First, as a matter of state law. it is not necessary or "urgent" within the meaning of the Go,,ernment Code that the City suspend the issuance ofpen-nits while a wireless ordinance Is drafted. Subdivision (c) ofGovern-ment Code Section 65858 states ir. 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 ofadditional use permits "would result in that threat to public health, safety, or welfare." (Emphasis added.) In other words, there must be facts which reasonably constitute an urgency to permit the imposition of the Moratorium. Sutter Bav Associates v. County of Sutter 68 Cal.Rptr.2d 492, 58 Cal.App.4th 860 (3rd Dist. 1997). Although the moratorium ordinance adopted by ATTAC>iU*MNT 5 AUol1St 7, Pa: 2 �tloo:-nark reco s ,�u :ll -.!r2en,:y, there: i1:', lllsUffiCl�l11 (itt ; :� :rated tit CJaSO ;Ia'aIY s iplle)� l I &nc %.)I U ;_Z'. :1' y'. IVe- at: awire nt less than a hal !ful of >t J.— e, lClecotl'ln ; :tlica1) --)n facilov application: on file in the city of Moorpark.' clearly an insufficient number to v.armn: a lidding 01'a current and immediate threat to puhlic health, safety or vvelfa ~e. .Similarly, despite the City's "grave concerns" there is no heavy construction associaied with the instalfation of and proposod wireless telecommunications ,acuity in Nloorpark and certainly none Involved with the proposed ATT facility which involves pole mounted antennas around a +eater tank. Adoption, of a moratorium is not a prerequisite (o the development of an ordinance or vireless i'uidelines ATT Wireless supports and is willing to provide technical assistance and cooperation to peimii the C it( to expcclitious1y adopt "reasonable regulation, regarding Ole placement mid constmction ol'vireless telecommtinica -.tons facilities" as prm lded under the :Moratorium. However, in the interim, thr City has at its disposal existing regulations .vhich permit the imposition of adequate conditions to protect the health. safety and welfare of it,, citizenry throttgh Conditional Use Permit requirements presently imposed on all ,. %ireless telecommunication,, facilities (See Section 17. 0.050 `Communication, FaCILIV ") For e-<arnple, to obtain a Conditions Use Permit. any vvirele.�-.> l;�'ec,unmunicalions facility must be "compatlbl: vyith the character of surrounding :!eyelopinent -, "crust not t-e det :arewal to the public interest, healtil, ,a:et.,'. convenience rn welfare" anal must he "compatible with the scale, visual char :cter and desi�,-n of ;urruundine proporu.." (tine Senon 17.44.030(A)(2 of the Ciiy', -Municipal Ceder. Prozzmlons under tee current kILMicipal Coci: confirm there is no uzgency to justify adopting a moratorium pending completion of reasonable wireless reguldtioai The Moratorium, and its Extension Violate the Telecommunicatir i ns Act of 1996 T,� 111 lisle;. :, as a tel.phone wilt , is subject to the Teizcommuricattnn, Act of 19W, " Telecornml,^i--d! ion-, Act'') To promo!,- -Ions tent nai ona! standards for :;i,.,:onnrnumcaiions f ,:IIiIIes, C on2re -,.i =!U::ed the Nationai \t, i re! -S T eic:Cii1111111LJ1tCdtiiln-, Slting Mic) a, Sectlon 704 Ali the T,°lecoi- .unanicaiion> Act. i nip section, while preservl.n local goVetllnleat corilml over (raditioral land use issues, sei> fore certain unponant limitations: • The City must act on siting requests '-within a reasonable period of time," taking all relevant factors into consideration.' • The City's land use control, '':hail nil; prohibii or have the ef*l-Ict of'proilibiting th, provision of personal wireless. services." Based on the Eiregoirg provisions, courts have ninicst uniformly held that local moratoria v lolate the Telecommunications Act. "Generally, courts have found Chat the institution of moratoriums violate; the Telecommunications Act." Snrint Spectrum, L.P. v. Town of North Stoninizton, 12 F. Supp. 2d 247, 256 (D. Conn. 1998). -[A] moratorium against the expansion of personal wireless services would violate the Telecoininunications Act." Omninoint Communications, Inc. v. City of Scranton, 36 F. Supp. 2d 222, 232 -233 (Nf.D. Pa. 1999) 47 l; S C 332(c)t7x13;(iii. ' 47 1 S.0 332(c:t7)(t3)(i)(11). V.atine L�;te: tcs :)it �lontes, F:1. i1�I1±I .'. Z00 P:: u: 3 Li G1, 1. Pioraloria hrnh Jong and short hate 1,,-en struck down by courts throughout the In Si)rint Spectrum. L P. ,. Town of Farmington, 1997 WL 631104, *6 (D. Conn. 1997), the i:deral i;istric; court held that a nine month moratorium enacted by the to-mi was to %iolatton ofthe Felecomnulnications Act. See alsoSm-int Spectrum, L. P. V. J.:ffers,m C'rnlntL, 968 F. Supp. 14-5­1 (\. D. Ala. 1997)(court stntck down third in series of moratoria); Sprint Spectrum, L P. v. Town of West Seneca, 659 \N.Y.S. 2d 637, l 72 iVtisc. 21120, 289 (N.Y. Sup. 1997)(three month moratorium struck d,)\vn, and six month time period f;om application date % ithout decision deetned unreasonably long). Ogle early case did permit a city to institute a six -month moratorium upon the issuance of pert-,tits for the installation ofielecommrtnications equipment. See Sprint t)ectnlm v. City 0! *Nlediria, 924 F. Supp 1036 tW D. Wash. 1996). Houeyer. the \vIedina docision has in every instance been strictiv limited to its facts. The most critical tact relied upon by the c..urt is that the ('ivy cC Medina imposeld its six -month moratoriun just five days atter enactment of the Telecommunications Act of 1996, when the City expected a sudden ­tluny ofappllcauon: " Medina, supra, 924 F. Supp. at 1037. The courts in Farmington and Jetl'ersor, C'^Unly reviewed the Medina decision and li)und it inapplicable to moratoria c.lacted tlfteen mouths and sixteen months after the passage of the Telecommunications .pct. In tine -resent c.tse we are dea!tag with a moratorium Impo zd f.ve years after the Tel -cornmurrican.-ns ,let, and tiler: i; no sudden "Ourry" ol'appllcations. Under all the .:a�ec that tbllo % Lledira, the Nloratotium would %mlate the Telecommunications Act. The Cal, s .subject to Ault to federal cud:rt (nr : iol,ttirg the Telecommunicat 0111 Act, with liability fc: a pre�asting plziffln E co .,ts and attorney's fees. Se e 17 U.S.C. 332(c)(7)(B)(v}: AT &T Wire;ess %. ('I IN of Atlanta, 21 1 F.3d 1322 (11" Circuit, 2000). The Moratorium noes Not Comply -Oth the 1998 FCC- 1_S(;AC /CT1A Guidelines Se tio;t 111­1) of the MOM101llnn suggests tr: it is in a--cord with the Guidelines for Facilitv aitm Intnlztnentation agreed to August 5, I')9,S bet•.%een the FCC* Local and Slat: (,orern!nent Advisory Committee and the Cellular Telephone Communications Industry Asz�ocia ;ion (the "19(j5 Guidelines "). While ATT Wireless adheres to the premise o!'the 1998 Guidelines that "local govemments and the wireless industry should work cooperatively to facilitate the siting of wireless telecommunications facilities" it is clear fmm the guidelines that moratoria should only be adopted when truly necessary and must comply with the Telecomm Lill icali011i Act. In compliance with the Telecommunications Act, the 191)1 Guidelines provide that — durng the time that a moratorium is in effect, the local got ernment should ... continue to accept and process applications" (1998 Guidelines Sec. 1(C)). As noted abov:, in violation of both the State and Federal law, the Moratorium obligates City staff to refrain from processing pending applications. Further the 1998 Guideline, 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 net comply with the 1998 Guidelines with respect to the processing of pending applications and the length ofthe proposed extension. The Moratorium Should Not Affect Pending Appfications AT&T V, ireless has one application pending in the City, which the City has accepted as complete under the Permit Suea171ining Act (Cal. Govt. Code s 65920, et seq.). As a Wayne Loftes Jos'..-'h iviorttes. Esgi. .august 7, 2001 Page 4 t^atler of state law, the City ntust act on this application within the deadlines imposed by the Permit Streamlining Act, %3ithout 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 Acti." Selinzer % City Council, 216 Cal. App. 3d 259, 269 (41' 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 iMaratorium. In addition, as noted above, the federal Telecommunications Act requires the City to act on siting requests "within a reasonable period of time," taking all relevant factors into consideration. 47 U.S.0 ` 332(C)(7)(B)(ii). By delaying.beyond the deadlines imposed by Califointa law, as discussed above. the City woul;l � iolate the Tel eCOmmUnIcations Act. Conclusions There h no evidence of urgency lu >tifying a blanket moratorium. The adoption and extension of the proposed moratorium, particularly as it applies to pending applications, vlo!ates the terms of the 199S Guidelines and the Telecommunications Act. For these reasons, ue respectfully submit that the City should not extend the Moratorium. ]n any e%em, tht City should process the pending .ITT Wireless applicarion under the current Municipal lode, without regard it) the \Jorarorum as adopted or e.ttended Very truly yours, Pail AlbiittOn cc: Daniel Smith, Esquire Mark Loschky. Esquire Leslie Daigle Robert Chacon 4E ATTACHMENT$ ORDINANCE NO. 273 AN ORDINANCE OF THS 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. Ordinance No. 273 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 Section 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 Ordinance No. 273 Page 3 this urgency are declared and set forth in Section 1 of this Ordinance and are incorporated herein by reference. PASSED, APPROVED AND ADOPTED this 29th day of August, 2001. ATTEST: Deborah S. Traffenst t, City Clerk Ordinance No. 273 Page 4 STATE OF CALIFORNIA ) COUNTY OF VENTURA ) CITY OF MOORPARK ) ss. I, Deborah S. Traffenstedt, City Clerk of the City of Moorpark, California, do hereby certify under penalty of perjury that the foregoing Ordinance No. 273 was adopted by the City Council of the City of Moorpark at a meeting held on the 29th day of August, 2001, and that the same was adopted by the following vote: AYES: Councilmembers Harper, Mikos, Millhouse, Wozniak, and Mayor Hunter NOES: None ABSENT: None ABSTAIN: None WITNESS my hand and the official seal of said City this 6th day of September, 2001. Deborah S. Traffenstedt, City Clerk (seal) ATTACHMENT C RESOLUTION NO. PC -2001- A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MOORPARK, CALIFORNIA, RECOMMENDING THAT THE CITY COUNCIL OF THE CITY OF MOORPARK CONSIDER ADOPTION OF A ZONING ORDINANCE AMENDMENT (ZOA- 2001 -03) TO ADD CHAPTER 17.42 AND AMEND CHAPTERS 17.08 AND 17.20 OF TITLE 17, ZONING, OF THE MOORPARK MUNICIPAL CODE TO REGULATE WIRELESS COMMUNICATIONS FACILITIES (APPLICANT: CITY OF MOORPARK) WHEREAS, Public Notice having been given in time, form, and manner as required by law, the Planning Commission of the City of Moorpark held a Public Hearing on the proposed Zoning Ordinance Amendment at a special meeting of November 19, 2001, and has determined that the amendment is exempt from the provisions of the California Environmental Quality Act (CEQA) Guidelines, Section 15308; and WHEREAS, at its public hearing conducted on November 19, 2001, on the Zoning Ordinance text amendment, the Planning Commission took testimony from all those wishing to testify on the amendment, closed the public hearing on the matter and reached its decision on that date. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF MOORPARK, DOES RESOLVE AS FOLLOWS: SECTION 1. The Planning Commission finds that the proposed amendment to Title 17, Zoning, to regulate Wireless Communication Facilities is exempt from the California Environmental Quality Act based on Section 15308 of the State California Environmental Quality Act Guidelines. SECTION 2. The Planning Commission hereby recommends that the City Council approve adoption of an ordinance regulating Wireless Communications Facilities within the City of Moorpark by adding Chapter 17.42 and amending Chapters 17.08 and 17.20 of Title 17, Zoning, of the Moorpark Municipal Code, as shown on Exhibit A attached hereto and incorporated herein by this reference. Resolution No. PC -2001- Page 2 PASSED, APPROVED, AND ADOPTED THIS 19th DAY OF NOVEMBER, 2001. AYES: NAYES: ABSENT: ABSTAIN: Janice Parvin, Chairperson ATTEST: Deborah S. Traffenstedt Acting Director of Community Development Attachment: Exhibit A - Draft Ordinance & \Community Development\Everyone\Zone Ordinance Amendments\pc ResoZOA2001- 03Wireless.doc ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, REGULATING WIRELESS COMMUNICATIONS FACILITIES WITHIN THE CITY OF MOORPARK BY ADDING CHAPTER 17.42 AND AMENDING CHAPTERS 17.08 AND 17.20 OF TITLE 17, ZONING, OF THE MOORPARK MUNICIPAL CODE WHEREAS, on July 19, 2001, the City Council adopted Interim Ordinance No. 272, enacting for a period of 45 days a moratorium on the issuance of permits for construction or placement of Wireless Telecommunications Facilities in the City and declaring the urgency thereof; and WHEREAS, on August 29, 2001, the City Council considered the status of interim prohibition of Wireless Telecommunications Facilities and extension of Ordinance No. 272, and adopted Ordinance No. 273, extending Ordinance No. 272 for a period of 135 days; and WHEREAS, on July 19, 2001, the Planning Commission conducted a duly noticed public hearing on a proposed ordinance to regulate Wireless Communications Facilities within the City of Moorpark and adopted a resolution recommending City Council approval of the draft ordinance; and WHEREAS, on December 5, 2001, the City Council conducted a duly noticed public hearing on a proposed ordinance to regulate Wireless Communications Facilities within the City of Moorpark and reached its decision. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council finds that the proposed amendment to Title 17, Zoning, is exempt from the California Environmental Quality Act based on Section 15308 of the State California Environmental Quality Act Guidelines. SECTION 2. Title 17, Zoning, of the Moorpark Municipal Code is hereby amended by adding Chapter 17.42 to read as follows: Ordinance No. Page 2 "Chapter 17.42 WIRELESS COMMUNICATIONS FACILITIES Sections: 17.42.010 PURPOSE. 17.42.020 DEFINITIONS. 17.42.030 APPLICABILITY. 17.42.040 DISTANCES. 17.42.050 REGULATIONS FOR BOTH MAJOR AND MINOR WIRELESS COMMUNICATIONS FACILITIES. 17.42.060 REQUIRED FINDINGS FOR BOTH MAJOR AND MINOR WIRELESS COMMUNICATIONS FACILITIES. 17.42.070 ADDITIONAL REGULATIONS FOR MINOR FACILITIES. 17.42.080 ADDITIONAL REGULATIONS FOR MAJOR FACILITIES. 17.42.090 PUBLIC PROPERTY FACILITIES. 17.42.100 APPEAL OR REVIEW AND NOTICES. 17.42.110 RESERVATION AND RIGHT TO REVIEW PERMITS. 17.42.120 FACILITY REMOVAL. 17.42.010 PURPOSE. A. The purpose of these requirements and guidelines is to regulate the location and design of Wireless Communications Facilities as defined herein to facilitate the orderly deployment and development of wireless communications services in the City of Moorpark, to ensure the design and location of Wireless Communications Facilities are consistent with policies of the City previously adopted to guide the orderly development of the City of Moorpark to promote the public health, safety, comfort, convenience, quality of life and general welfare of the City's residents, to protect property values and enhance aesthetic appearance of the City by maintaining architectural and structural integrity, and by protecting views from obtrusive and unsightly accessory uses and Facilities. B. In adopting and implementing the regulatory provisions of this Ordinance, it is the intent of the Moorpark City Council to further the objectives specified above, and to create reasonable regulations in conformance with the provisions of the Telecommunication Act of 1996 without unnecessarily burdening the federal interests in ensuring access to telecommunication services, in promoting fair and effective competition among competing communication service providers, and in eliminating local restrictions and regulations that, with regard to antennas, may preclude reception of an acceptable signal quality \ \MOR_PRl_SGRV\City Share \Community Development \F,vcryone \Ordinances \01 I 119 PC Mtg Draft Wireless Communications Facilities . Ord.doc Ordinance No. Page 3 or may unreasonably delay, prevent, or increase the cost of installation, maintenance, or use of such antennas. C. The Moorpark City Council has found and determined that these requirements and guidelines for Wireless Communications Facilities are necessary to attain such purposes. D. These regulations are intended to supersede any applicable provisions of Title 17, Zoning, hereinafter in this Chapter referred to as the Moorpark Zoning Code, pertaining to such antenna structures and appurtenant communication equipment and to establish minimum requirements and flexible guidelines for the governance of Wireless Communications Facilities, taking into consideration the rapid technological advances and the proliferation in use of Radio Communication services. 17.42.020 DEFINITIONS. For purposes ( phrases and their herein. The word directory. If a Section 17.08.010 referenced. )f this Ordinance, t derivations shall "shall" is always definition is not of the Moorpark he following words, terms, have the meanings given mandatory and not merely listed in this Chapter, Zoning Code shall be "Accessory Equipment" means any equipment installed, mounted, operated or maintained in close proximity to an Antenna Structure to provide power to the Antenna Structure or to receive, transmit, or store signals or information received by or sent from an antenna. "Antenna Structure" means an antenna, any structure designed specifically to support an antenna, and /or any appurtenances mounted on such structure or antenna. "Colocation" or "Colocated" means the location of multiple antennas which are either owned or operated by more than one (1) service provider at a single location and mounted to a common supporting structure, wall or building. "Commercial Mobile Service" means any mobile service that (1) is offered in return for monetary compensation, (2) is available to the public or a substantial portion of the public and (3) provides subscribers with the ability to access or receive communication from the public switched telephone network. Commercial Mobile Service includes, but is not limited \ \MOR_PRI_SERV\City Share \Community Development \Everyonc\Ordinances \011119 PC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 4 to, paging service, wireless data transmission, cellular telephone service, specialized mobile radio service (SMR), and personal communications service (PCS). "Disguised Facility" means any Wireless Communications Facility, which is designed to blend into the surrounding land, typically one that is architecturally integrated into a building or other concealing structure. "Fixed Wireless Service" means any service providing Radio Communication to or from Antenna Structures at fixed and specified locations which are not designed to be moved during operation and which offers the ability to access or receive communication from the public switched telephone network. "Ground Mounted" means a Wireless Communications Facility that is Mounted to a pole, Lattice Tower or other freestanding structure that is specifically constructed for the purpose of supporting an antenna. "Lattice Tower" means a tower -like structure used to support antennae and comprised of up to two or more steel support legs. "Major Facility" means a Wireless Communications Facility that is either Ground Mounted or Roof Mounted; provided that the Roof Mounted Facility is not screened on all four sides by solid material that is architecturally compatible with the surrounding land uses or exceeds the maximum building height of the applicable zoning district in which the Major Facility is located. "Microwave Communication" means the transmission or reception of Radio Communication at frequencies of a microwave signal (generally, in the 3GHz to 300GHz frequency spectrum). "Minor Facility" means a Wireless Communications Facility that is either (1) Wall Mounted, (2) Utility Mounted, or (3) Roof Mounted in such a manner that the entire Facility is screened by solid material on four sides, is architecturally compatible with the surrounding land uses, and does not exceed the maximum building height of the applicable zoning district in which the Minor Facility is located. "Mobile Service" means any temporary service providing Radio Communication to or from at least one ( 1) antenna that is \ \MOR PRI_SERV\City Share \Community Development \Everyone \Ordinances \011119 PC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 5 designed to be moved during operation or used during halts at unspecified locations; or as otherwise defined in 47 USCS Section 153 and interpreted by the Code of Federal Regulations and the Federal Register. "Mounted" means any manner of attachment, support, or connection, whether on ground or on a structure. "Multipoint Distribution Service" means a microwave communication service that delivers video programming directly to subscribers, including multichannel, multipoint distribution services, instructional television fixed services, and local multipoint distribution services, or as otherwise defined by the Section 207 of the Telecommunications Act of 1996, Section 1.4000 of Title 47 of the Code of Federal Regulations and any interpretive decisions thereof issued by the Federal Communications Commission. "Radio Communication" means the transmission and /or reception of impulses, writing, signs, signals, pictures, and sounds of all kinds through space by means of electromagnetic waves. "Roof Mounted" means a Facility that is mounted on any structure that is not specifically constructed for the purpose of supporting antennae, in any manner that does not satisfy either the definition of Wall Mounted or Utility Mounted, and is typically mounted on the roof of a building. "Satellite Antenna" means a device used to transmit and /or receive radio or electromagnetic waves between terrestrially and orbitally -based uses. This definition is meant to include, but not limited to, what are commonly referred to as satellite earth stations, TVRO's (Satellite Television Receiving Antenna), and satellite microwave antennas. "Stealth Facility" means any Wireless Communications Facility which is disguised to appear as another natural or artificial object that is prevalent in the surrounding environment or which is architecturally integrated into a building or other concealing structure. "Utility Mounted" means a Facility that is Mounted to an existing above - ground structure that is specifically designed and originally installed to support electrical power lines, cable television lines, street lighting, traffic signal K \ \MOR_PRI_SERV\City Share \Community Devclopment \Everyone \Ordinances \011119 PC Mig Draft Wireless Communications F'acilitics Ord.doc Ordinance No. Page 6 equipment, park lighting or a structure on public or private property deemed by the City to be similar in nature. "Wall Mounted" means a Facility that is Mounted on any vertical surface or nearly vertical surface of a building or other existing structure that is not specifically constructed for the purpose of supporting an antenna i.e., the exterior walls of a building, an existing parapet, the side of a water tank, the face of a church steeple, or the side of a freestanding sign such that the highest point of the Antenna Structure is at an elevation equal to or lower than the highest point of the surface on which it is Mounted. "Wireless Communications Facility" or "Facility" means an Antenna Structure and any appurtenant Facility or Accessory Equipment located within City limits and that is used in connection with the provision of Wireless Service. "Wireless Service" means any type of Wireless Service providing Radio Communication that satisfies the definition of Commercial Mobile Service, Fixed Wireless Service, or Wireless Video Service. "Wireless Video Service" means any service providing Radio Communication, which delivers video programming. 17.42.030 APPLICABILITY. A. All Wireless Communications Facilities which are erected, located, Mounted or modified within the City of Moorpark on or following the effective date of this Ordinance shall comply with this Chapter, subject to the categorical exemptions under Paragraph (D) of this Section, provided that: 1. All Facilities for which applications were determined complete by the Planning Department prior to the effective date of this Ordinance shall be exempt from the regulations and guidelines of this Chapter and shall be subject to Chapter 17.52 of the Moorpark Zoning Code regulating nonconforming structures and uses. 2. All Facilities for which building permits were issued by the City of Moorpark prior to the effective date of this Ordinance shall be exempt from the regulations and guidelines of this Chapter, and shall be subject to the regulations and guidelines of Chapter 17.52 of the Moorpark \ \MOR_[ RI_SERV\City Share \Community Development \Evcryonc \Ordinances\011119 PC Mtg Draft Wircicss Communications Facilities Ord.doc Ordinance No. Page 7 Zoning Code, regulating nonconforming structures and uses, unless and until such time as Paragraph (A) of this Section applies. B. All Facilities for which building permits and any extension thereof have expired shall comply with the provisions of this Chapter. C. All Facilities constructed or erected prior to the effective date of this Ordinance that are in violation of applicable laws, ordinances, or other regulations shall be considered an illegal nonconforming Facility, no longer permitted, and shall be subject to abatement as a nonconforming use pursuant to Section 17.52.060 of the Moorpark Zoning Code. D. The following uses shall be exempt from the provisions of this Chapter until such time as federal regulations are repealed or amended to eliminate the necessity of the exemption: 1. Any Antenna Structure that is one (1) meter (39.37 inches) or less in diameter and is designed to receive direct broadcast satellite service, including direct -to -home satellite service, as defined by Section 207 of the Telecommunications Act of 1996, Title 47 of the Code of Federal Regulations, and any interpretive decisions thereof issued by the Federal Communications Commission; 2. Any Antenna Structure that is two (2) meters (78.74 inches) or less in diameter located in a commercial or industrial zone and is designed to transmit or receive Radio Communication by Satellite Antenna; 3. Any Antenna Structure that is one (1) meter (39.37 inches) or less in diameter or diagonal measurement and is designed to receive Multipoint Distribution Service, provided that no part of the Antenna Structure extends more than eight feet (81) above the principal building on the same lot. E. The following uses shall be exempt from the provisions of this Chapter, so long as the Antenna Structure complies with all other zoning requirements: 1. Any Antenna Structure that is designed and used solely to receive UHF, VHF, AM, and FM broadcast signals from licensed radio and television stations. \ \MOR_PRI_SERV\City Share \Community Developmen t\ Ever yone \Ordinances\011119 PC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 8 2. Any Antenna Structure that is designed and used solely in connection with authorized operations of an amateur radio station licensed by the FCC (i.e., a "HAM" radio transmission). 17.42.040 DISTANCES. For the purpose of this Chapter, all distances shall be measured in a straight line without regard to intervening structures, from the nearest point of the proposed Major Facility to the relevant property line at•a point five (5) feet above ground level. 17.42.050 REGULATIONS FOR BOTH MAJOR AND MINOR WIRELESS COMMUNICATIONS FACILITIES. A. Both Major and Minor Facilities shall be erected, located, Mounted, operated and maintained at all times in compliance with this Chapter and all applicable laws and regulations of the City, the State of California, and the United States of America. B. Both Major and Minor Facilities are conditionally permitted as a Wireless Communications Facility in the applicable zoning district as set forth in Section 17.20.050, Table 17.20.050, and Section 17.20.060, Table 17.20.060, of the Moorpark Zoning Code. C. Application Requirements and Procedures. 1. Both Major and Minor Facilities proposed to be erected, located, Mounted, operated and maintained at all times shall require a Conditional Use Permit (CUP). Each applicant applying for a CUP shall submit a completed CUP application in accordance with the requirements set forth in Chapter 17.44 of the Moorpark Zoning Code, and such additional or different requirements as are made applicable by this Chapter. 2. The scaled Site Plan and Facility Elevations required for the City CUP application shall include the following information: a. The proposed location of the wireless Communications Facility; \ \MOR_PRI_SERV\City Share \Community Development \Everyone \Ordinances \OI 1 119 PC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 9 b. The elevations of the Wireless Communications Facility with dimensions identified; structure(s); C. The height of any existing or proposed d. The location of any Accessory Equipment; e. The location of all guy- wires; f. The location of all above and below ground wiring and connection cables; g. The location of existing or proposed easements on the property; h. The height of any panels, microwave dishes, or whip antennas, above ground level; i. The distance between the Antenna Structure and any existing or proposed Accessory Equipment; and j. Any other necessary information as may be required by the Director of Community Development. 3. Any application that is improperly submitted or fails to contain all of the information as required by the Moorpark Zoning Code, including this Chapter, shall be deemed incomplete. 4. Each application shall contain a letter of justification accompanied by written documentation that explains and validates the applicant's efforts to locate the Facility in accordance with the screening and site selection guidelines set forth in Paragraph (D) of this Section. 5. Each application shall contain a narrative and map that discloses the exact location and nature of any and all existing Facilities that are owned, operated or used by the applicant within the City of Moorpark, or within five (5) miles of its geographic borders, as well as any proposed or planned sites that may reasonably be known to the applicant at the time the application is made. 6. Each application shall contain a narrative and appropriate maps that disclose the geographic area(s) within the City of Moorpark that will be serviced by the proposed Facility, ANIOR_PRl_SERV\City Share \Community Development \Everyone \Ordinances\011119 PC Mtg Draft Wireless Communisations Facilities Ord.doc Ordinance No. Page 10 the geographic area(s) bordering the City of Moorpark, if any, that will be serviced by the proposed Facility, the nature of the service to be provided or purpose of the Facility, the reasons, if any, why the applicant cannot locate the Facility outside the City of Moorpark, and the efforts, if any, that applicant has made to locate the Facility outside the City of Moorpark. 7. A radio - frequency (RF) report prepared by a qualified RF engineer acceptable to the City to demonstrate that the proposed Facility, as well as any Colocated Facilities, complies with current Federal RF emission standards. This RF report shall also include signal strength exhibits. 8. Computerized visual assessments or other exhibits equivalent in a form and manner acceptable to the Director of Community Development showing the before and after visual appearances of the proposed Facility. 9. A preliminary environmental review in accordance with the City submittal requirements, with special emphasis placed upon the nature and extent of visual, public, health, and safety impacts. 10. Evidence of any required licenses and approvals to provide Wireless Services in the City. 11. Notwithstanding any permit that may be granted in accordance with this Chapter, the Facility shall be erected, located, Mounted, operated and maintained at all times in compliance with this Chapter and all applicable laws, regulations and requirements of the Building Code, and every other code and regulation imposed or enforced by the City of Moorpark, the State of California, and the United States Federal Government. Applicants are separately required to obtain all applicable building and construction permits that may be required prior to erecting or installing the Facility. 12. The Director of Community Development shall determine applicable entitlement processing fees and deposits for the application, as established by City Council resolution, including any applicable contract staff fees and /or deposits for the purpose of peer review of the CUP application submittals. D. General Development Requirements. The Facility shall comply with each of the following requirements: AMOR _PRI_SERV\City Share\ Community Dcvelopmcnt \Everyonc \Chdinances \011119 PC Mtg Draft Wircicss Communications Facilities Ord.doc Ordinance No. Page 11 1. A Facility shall not bear any signs or advertising devices other than certification, public safety, warning, or other required seals or required signage. 2. Any and all Accessory Equipment, or other equipment associated with the operation of the Facility, including but not limited to transmission cables, shall be located within a building, an enclosure, or underground vault in a manner that complies with the development standards of the zoning district in which such equipment is located. In addition, if equipment is located above ground, it shall be visually compatible with the surrounding buildings and either shrouded by sufficient landscaping to screen the equipment from view, or designed to match the architecture of adjacent buildings. If Accessory Equipment will be visible from a residential area or an arterial street, the applicant shall provide a solid masonry block wall that will screen the equipment from the residential area or another material that is acceptable to the Director of Community Development. If no recent and /or reasonable architectural theme is present, the Director of Community Development may require a particular design that is deemed suitable to the subject location. 3. The Facility's exterior finish shall be comprised of non - reflective material(s) and painted, screened, or camouflaged to blend with the materials and colors of surrounding buildings, structures, topography and vegetation. 4. All screening used in connection with a Wall Mounted and /or Roof Mounted Facility shall be compatible with the architecture, color, texture, and materials of the building or structure to which it is attached. 5. Facilities may not be illuminated unless specifically required by the Federal Aviation Administration or other governmental agencies. 6. The applicant and the property owner if different from the applicant shall consent to future Colocation of other Facilities on or with the applicant's Facility, unless technological requirements preclude that Colocation. E. Setback Requirements and Guidelines. If the Facility is located in an Open Space, Agricultural or Residential zone or within two hundred (200) feet of a residential use, then the Facility shall at a minimum comply with the main structure \ \MOR_PRI_SERV\City Share \Community Development \Everyone \Ordinances \01 1 119 PC Mig Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 12 setback requirements for such zone as specified in Table 17.24.020A of the Moorpark Zoning Code. In Commercial and Industrial zones, the Facility shall at a minimum comply with the building setback requirements from the edge of roadway right -of -way as specified in Table 17.24.020B of the Moorpark Zoning Code. In all instances, the determination of need for a larger setback for the Facility shall be considered by the City in connection with the processing of the CUP. F. Screening and Site Selection Guidelines. In addition to the above requirements, the City shall consider the following factors in conjunction with the processing of a CUP. 1. The proposed Facility shall be designed to either be a Disguised Facility or Stealth Facility, taking into consideration alternate sites that are available, including Colocation. 2. The proposed Facility should be screened or camouflaged by existing or proposed new topography, vegetation, buildings, or other structures. Any such improvements shall be appropriate for and compatible with the site and surrounding area. 3. The total size of the proposed Facility should be compatible with surrounding and supporting structures. 4. If feasible, the location of the proposed Facility should conform to the following in order of preference: a. Colocated with an existing Facility or located at a pre- approved location; b. Attached to an existing structure such as an existing building, communication tower, church steeple or utility; C. Located in an industrial zoning district; d. Located in a commercial zoning district. 5. Proximity of the proposed Facility to residential structures and to boundaries of residentially zoned districts. 6. The availability of suitable alternative locations for the Facility.. \ \MOR_PRI_SERV\City Share \Community Dcvelopmcnt \Everyone \Ordinances \OI 1119 PC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 13 7. The nature of existing uses on adjacent and nearby properties. 8. Proposed ingress and egress to the Facility. 17.42.060 REQUIRED FINDINGS FOR ALL WIRELESS FACILITIES. A. Wireless Communications Facilities Findings. In addition to the required findings for Conditional Use Permits contained in Section 17.44.030.A.2 of the City of Moorpark Zoning Code, the following Findings are required for every Major and Minor Conditional Use Permit (CUP) for Wireless Communications Facilities: 1. That the proposed Facility will not create any significant blockage to public views; and 2. That the proposed Facility will be an enhancement to the City due to its ability to provide additional communication capabilities; and 3. That the proposed Facility will be aesthetically integrated into its surrounding land uses and natural environment; and 4. That the proposed Facility will comply with FCC regulations regarding interference with the reception or transmission of other Wireless Service signals within the City and surrounding community; and 5. That the proposed Facility will operate in compliance with all other applicable Federal regulations for such Facilities, including safety regulations; and 6. That the public need for the use of the Facility has been documented. B. If the Planning Commission does not approve an application for such Conditional Use Permit, the Planning Commission shall make a written determination supported by findings as required by 47 U.S.C. § 332(c)(7)(B)(iii). 17.42.070 ADDITIONAL REGULATIONS FOR MINOR FACILITIES. In addition to the requirements of Sections 17.42.040 and 17.42.060 of this Chapter, the following requirements shall apply to the following types of Facilities: \\M OR PRI_SERV\City Share \Community Development \Everyonc\Ordinances \011119 PC Mig Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 14 A. Minor Facility Height Requirements. Notwithstanding any other provision in the Moorpark Zoning Code, no Minor Facility shall exceed the maximum building height for the applicable zoning district unless such Facility receives Planning Commission approval, has been designed as a Disguised or Stealth Facility, and: 1. The applicant demonstrates that exceeding the height limitation is necessary for operation of the Facility; or 2. The Facility is Colocated, or contains adequate space suitable for future Colocation, and the height in excess of zoning requirements is necessary to the proposed shared use. B. Utility Mounted Facilities — Vertical Extensions. A Utility Mounted Facility may, if approved by the Planning Commission, exceed the maximum building height limit for the applicable zoning district. The extent that the Utility Mounted Facility exceeds the height of the existing utility pole or structure and the need for such height increase shall be taken into consideration by the City in conjunction with the processing of the CUP for the Utility Mounted Facility. C. Utility Mounted Facilities - Horizontal Extension. The extent that the Utility Mounted Facility protrudes or extends horizontally from the existing utility pole or structure shall be taken into account by the City in conjunction with its processing of a CUP for a Utility Mounted Facility. A Utility Mounted Facility may not protrude or extend horizontally more than eighteen (18) inches from the existing utility pole or structure unless the applicant demonstrates a need for such extension. D. Additional Requirement for All Utility Mounted Facilities. Any Accessory Equipment accompanying or that forms part of the Utility Mounted Facility, and is located on the ground in the area surrounding the utility pole or structure, shall be visually compatible with the surrounding environment, shrouded by sufficient landscaping to screen the Accessory Equipment from view, and designed to match the architecture of adjacent buildings. If Accessory Equipment will be visible from a residential area or an arterial street, the applicant shall provide a solid masonry block wall that will screen the equipment from the residential area or another material that is acceptable to the Planning Commission. \\MOR_PRI_SEM.City Sharc \Community Developmcnl \Everyone \Ordinances \011119 PC Mig Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 15 17.42.080 ADDITIONAL REGULATIONS FOR MAJOR FACILITIES. In addition to the requirements of Sections 17.42.050 and 17.42.060, the following requirements shall apply to the following types of Facilities: A. Location Requirements. 1. No portion or extension of a Major Facility shall protrude beyond property lines or extend into any portion of property where such Facility is not itself permitted; provided, however, that the City may approve the location of guy wires in a required setback if such approval is consistent with the guidelines and requirements set forth in this chapter. 2. Latticed Towers shall not be located in any Zone except M -2 and I, and shall not be located within one hundred (100) feet of any property containing a residential structure. 3. A Ground Mounted Facility shall not be located in a required parking area, vehicle maneuvering area, vehicle/ pedestrian circulation area or area of landscaping such that it interferes with, or in any way impairs, the utility or intended function of such area. 4. A Ground Mounted Facility shall not be permitted unless the reviewing authority makes the additional finding that, based upon evidence submitted by the applicant, no existing building or support structure can reasonably accommodate the proposed Facility. Evidence supporting this finding will be reviewed by the reviewing authority and may consist of any of the following: a. No existing buildings or support structures are located within the geographic area proposed to be served by the applicant's Facility. b. Existing buildings or support structures are not of sufficient height or structural strength to satisfy the applicant's operational or engineering requirements. C. The applicant's proposed Facility would create electromagnetic interference with another Facility on an existing structure, or the existing Facility on a building or \ \MOR_PRI_Sf:RV\City Sharc\Community Development \Everyone \Ordinances \011119 PC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 16 support structure would create interference with the applicant's proposed Facility. d. The costs, fees, or contractual provisions required by a property owner, or by an incumbent Wireless Service provider, in order to Colocate a new Facility on an existing building or structure, or to adapt an existing building or structure for the location of the new Facility, are unreasonable. e. There are other limiting factors that render existing buildings and structures unsuitable for use by the applicant. 5. If the proposed Major Facility cannot be Colocated, it must be sited at least 1,500 feet from any existing Major Facility unless the reviewing authority determines that a shorter distance is required for technological reasons, or that it would result in less visual obtrusiveness in the surrounding area. B. Additional Design Requirements. 1. A Ground Mounted Facility shall be secured from access by the general public with a fence of a type or other form or screening approved by the Planning Commission. 2. A Ground Mounted Facility shall be covered with a clear anti - graffiti material of a type approved by the Planning Commission. The Planning Commission may grant an exception to this requirement if the applicant demonstrates to the satisfaction of the Planning Commission that there is adequate security around the Facility to prevent graffiti. C. Height Requirements. Notwithstanding any other provision in the Moorpark Zoning Code, no Major Facility shall exceed the maximum building height for the applicable zoning district in which the Facility is proposed to be located, nor shall a Roof Mounted Facility exceed the height of the structure on which it is mounted by more than the minimum amount necessary for operation and safety, not to exceed ten (10) feet. Any application for a permit exceeding these height limits shall not be approved unless the Planning Commission determines that the Major Facility has been designed as a Disguised or Stealth Facility and: M \ \MOR_PRI_SERV\City Share \Community Development \Everyone \Ordinances\011119 PC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 17 1. The applicant demonstrates that exceeding the height limitation is reasonably necessary for operation of the Facility; or 2. The Facility is Colocated, or contains adequate space suitable for future Colocation, and the excess in height is reasonably necessary to the proposed shared use. D. Additional Screening and Site Selection Guidelines. The following screening and site selection guidelines shall be considered by the City in conjunction with the processing of all Major Facility CUPs: 1. A Major Facility should not be located within two hundred (200) feet of any property containing a residential use. 2. If technical data require the placement of a Major Facility to be located within 1,500 feet of an existing Major Facility, under Subsection 17.42.O8O.A.5, the new Major Facility should be located at least five hundred (500) feet from the existing Major Facility. 3. A Ground Mounted Facility should be located in close proximity to existing above ground utilities, such as electrical tower or utility poles (not scheduled for removal or undergrounding in the next eighteen (18) months), light poles, trees of comparable height, water tanks and other areas where the Facility will not detract from the image or appearance of the City. 4. A Roof Mounted Facility that extends above the existing parapet of the building on which it is mounted shall be screened by a material and in a manner that is compatible with the existing design, color and architecture of the building. 5. A Roof Mounted Facility, requiring the placement of any guy wires, supporting structures, or Accessory Equipment shall be located and designed so as to minimize the visual impact as viewed from surrounding properties and public streets, including any pertinent public views from higher elevations. 6. No part of a Ground Mounted Facility should be located in any required setback. \ \MOR_PRI_SF.RV\City Share \Community Developmcnt\Everyonc\Ordinances\O I 1119 PC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 18 17.42.090 PUBLIC PROPERTY FACILITIES. A. Pre - Approved Locations. 1. The City may approve by Resolution, following a duly noticed public hearing, a list of sites located on public property or within the public right -of -way and which are approved for Major Facilities. Each site shall include a description of permissible development and design characteristics, including but not limited to maximum height requirements. The City shall make said Resolution available to all persons upon request. The approved list of locations may be subsequently amended by Resolution from time to time. 2. All Facilities located on a public property site which is pre- approved in accordance with this Section following the effective date of this Ordinance must obtain approval of a CUP in accordance with the Moorpark Zoning Code, and any additional or different requirements made applicable by this Chapter. 3. All leases of public property that is pre - approved in accordance with this Section shall be non - exclusive. The operator of a Facility located on such public property shall make the supporting structure of the Facility available to any other applicant wishing to Colocate to the extent technically feasible. B. Requirement for Separate Lease Agreement. Any lease of City -owned property for the purpose of erecting a Wireless Communications Facility shall require a negotiated lease agreement or other written license granted by the City of Moorpark. The existence of a lease agreement or license shall not relieve an applicant of any obligations to obtain appropriate permits hereunder or otherwise comply with the Moorpark Zoning Code. 17.42.100 APPEAL OR REVIEW AND NOTICES. Any applicant or the operator and /or owner of a Facility may appeal a final decision of the Director of Community Development or the Planning Commission. All appeals shall be processed in accordance with Moorpark Zoning Code Section 17.44.090 including payment of required fees. \ \%40R_PRI_SERV\City Share \Community Development \Everyone \Ordinances \OI 1119 PC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 19 17.42.120 RESERVATION OF RIGHT TO REVIEW PERMITS. A. Changed Circumstance. Any Conditional Use Permit granted or approved pursuant to this Chapter shall be granted or approved by the City and its Planning Commission with the reservation of the right and jurisdiction to review and modify the permit (including the conditions of approval) based on changed circumstances. Changed circumstances include, but are not limited to, the following in relation to the approved Facility as described and diagramed in the related Site Plan: increased height or size of the Facility; additional impairment of the views from surrounding properties; change in the type of antenna or supporting structure; changed color or materials; substantial change in location on the site; and an effective increase in signal output above or near the Maximum Permissible Exposure (MPE) limits imposed by the Revised Radio frequency Emissions Guidelines by the Federal Communications Commission. B. Additional Right to Revoke for Violation. The reservation of right to review any permit granted or approved hereunder by the City, its Planning Commission and /or City Council is in addition to, and not in lieu of, the right of the City, its Planning Commission and /or City Council to review and revoke or modify any permit granted or approved hereunder for any violations of the conditions imposed on such permit pursuant to Section 17.44.070 of the Moorpark Zoning Code. C. Modification of Permit/ Colocation. Upon review, any changed circumstance as determined by the Director of Community Development shall require the application and approval of a modification to the original Conditional Use Permit, provided that any modification to accommodate Colocated Facilities may be approved administratively without the approval of the Planning Commission. 17.42.120 FACILITY REMOVAL. A. Discontinued Use. The operator of a lawfully erected Facility, and the owner of the premises upon which it is located, shall promptly notify the Director of Community Development in writing in the event that use of the Facility is discontinued for any reason. In the event that discontinued use is permanent, then the owner(s) and /or operator(s) shall promptly remove the Facility, repair any damage to the premises caused by such removal, and restore the premises as appropriate so as to be in conformance with applicable zoning codes. All \\MOR_PRI_SERV\City Sharc \Community Devclopment \Everyonc \Ordinanccs \011119 PC Mtg Draft Wirelm Communications Facilities Ord.doc Ordinance No. Page 20 such removal, repair and restoration shall be completed within ninety (90) days after the use is discontinued, and shall be performed in accordance with all applicable health and safety requirements. For purposes of this paragraph, a discontinued use shall be permanent unless the Facility is likely to be operative and used within the immediately following three -month period. B. Abandonment. A Facility that is inoperative or unused for a period of six (6) continuous months shall be deemed abandoned. An abandoned Facility shall be a nuisance, subject to abatement pursuant to the provisions of Chapter 1.12 of the Moorpark Municipal Code." SECTION 3. Chapter 17.08, Section 17.08.010 is hereby amended to add the following definition: "'Wireless Communications Facility' means an Antenna Structure and any appurtenant Facility or Accessory Equipment located within City limits and that is used in connection with the provision of Wireless Service as is defined in Chapter 17.42 of this Code." SECTION 4. Chapter 17.20 is hereby amended consistent with Exhibit A, attached hereto and incorporated herein by reference, to amend Table 17.20.050 to add "Wireless Communications Facility" with a footnote regarding specific regulations for this use. SECTION 5. Chapter 17.20 is hereby amended consistent with Exhibit B, attached hereto and incorporated herein by reference, to amend Table 17.20.060 to add "Wireless Communications Facility" with a footnote regarding specific regulations for this use. SECTION 6. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance for any reason is held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Chapter. The City Council hereby declares that it would have adopted this Chapter, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. t1 t s \ \MOR_PRI_SERV\City Share \Community Development \Everyone \Ordinances \0l 1119 PC Mtg Draft Wireless Communications Facilities Ord.doc Ordinance No. Page 21 SECTION 7. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 8. The City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark Star a newspaper of general circulation, as defined in Section 6008 of the Government Code, for the City of Moorpark, and which is hereby designated for that purpose. PASSED AND ADOPTED this day of Patrick Hunter, Mayor ATTEST: Deborah S. Traffenstedt City Clerk Attachments: Exhibit A — Revised Table 17.20.050 Exhibit B — Revised Table 17.20.060 2001. \ \MOR_PRI_SERV\City Share \Community Dcvelopmcnt \Everyone \Ordinances \011119 PC Mtg Draft Wireless Communications Facilities ` Ord.doc Revised Table 17.20.050 Section 17.20.050 Permitted uses in open space, agricultural and special purpose zones. Permitted uses in open space, agricultural and special purpose zones are set out in Table 17.20.050. Note: An approved residential planned development permit is required for five (5) or more lots in the RA, RO, R -1 and RE zones. The key for Table 17.20.050 is as follows: [Blank] Not permitted ♦ Permitted by zone clearance ■ Administrative permit • Planning commission- approved planned development permit 0 City council- approved planned development permit O Planning commission - approved conditional use permit �! City council- approved conditional use permit Table 17.20.050 PERMITTED USES IN OPEN SPACE, AGRICULTURAL AND SPECIAL PURPOSE ZONES EXHIBIT A ' `� ` OS AE RA RE RO RI R2 RP D TP 1 Agriculture and agricultural operations (no retail except as indicated). Animal husbandry: Without structures With structures: total GFA per lot: Up to 1,000 sq. ft. Over 1,000 to 5,000 sq. ft. ♦ O Over 5,000 to 20,000 sq. ft. ♦ O Over 20,000 to 100,000 sq. ft. O O Over 100,000 sq. ft. O O Apiculture Fish farms O O O O O More animals than are permitted by Section 17.28.030C O O O Contractors service and storage yards and buildings O O O Crop production Wholesale nursery ♦ ♦ ♦ ♦ O Firewood operations O O 1 O Greenhouse, hothouses and the like: total GFA per lot:Z Up to 1,000 sq. ft. 1,000 to 20,000 sq. ft. O 20,000 to 100,000 sq. ft. O 1 O O Over 100,000 sq. ft. O O Packing or prelim. processing, within structures: total GFA per lot:3 Up to 5,000 sq. ft 5,001 to 20,000 sq. ft. • • O 20,001 to 100,000 sq. ft. O O O Over 100,000 sq. ft. O Timber growing and harvesting, and compatible uses Dwellings, farm worker (more than one per lot) O O O EXHIBIT A ' `� ` Revised Table 17.20.050 Wineries Up to 2,000 sq. ft. structure 2,001 to 20,000 sq. ft. structure O O O Over 20,000 sq. ft. structure O O O With public tours or tasting rooms O O O Accessory structures To animal husbandry: SEE WITH STRUCTURES, ABOVE Dwelling, caretaker O O O More than one per lot O O O Offices O O O To crop production, including storage SEE GREENHOUSE Dwelling, farm worker: On lots of 40 acres or more O O O On lots less than 40 acres O O O More than one per lot O O O Offices O O O Produce stands, retail Accessory uses, including open storage Fuel storage Insecticides for pest control Packing, storage or prelim. processing of crops: Without structure' Airfields and landing pads and strips, private O O O O O Animals, nonagricultural (see also Dwellings, accessory uses and structures) SEE ANIMAL HUSBANDRY Kennels O O O Wild animals O Boardinghouses and bed -and- breakfast Inns O O O O O O Care facilities (see also H &SC and W &IC) Day: Care of 12 or fewer persons (State law requirement related to day care facilities for 7 - -12) Care of 13 or more persons O O O O O O O Intermediate: Care of 7 or more persons (see definitions) O O O O O O Residential: Care of 6 or fewer persons ♦ ♦ ♦ ♦ ♦ ♦ ♦ • Care of 7 or more persons O O O O O O Cemeteries O O O O O O O O Accessory crematoria, columbaria and mausoleums O O O Churches, synagogue and other buildings used for religious worship O O O O O O O Clubhouses (no alcoholic beverages) O O O O O O Communications facilities O O O O O O O O O O Drilling, temporary geologic (testing only) O O O O O Dwelling, single-family"' (R -P -D zone) ♦ ♦ ♦ ♦ ♦ ♦ ♦ • Mobilehome, continuing nonconforming O O O O O O O O Affordable or elderly, built pursuant to Chapter 17.64 0 [] [] Dwellings, two - family, or two single- ♦ • Page 2 of 5 Revised Table 17.20.050 family dwellings Affordable or elderly, built pursuant to Chapter 17.64 p p Dwellings, multifamily • Affordable or elderly, built pursuant to Chapter 17.64 0 Dwellings, accessory structures For human habitation: Mobilehome/RV as temporary dwelling during construction Second dwelling ■ ■ ■ ■ ■ ■ ■ ■ Room additions ■ ■ ■ ■ ■ ■ ■ ■ Not for human habitation (with or without bathroom): Second story patio /deck ■ ■ ■ ■ ■ ■ ■ ■ Accessory structure over 120 sq. ft. ■ ■ ■ ■ ■ ■ ■ ■ Over 1,000 sq. ft. per structure; or over 2,000 sq. ft. per lot O O O O O O O O Antenna, ground- mounted (noncommercial), above 40 ft.Z O O O O O O O O O Dwellings, accessory uses ♦ ♦ ♦ ♦ ♦ ♦ ♦ Animals Apiculture Aviaries O O O O Farm animals (other than horses /ponies) ♦ ♦ ♦ ♦ ♦ O Horses /ponies ♦ ♦ ♦ ♦ ♦ O Pet animals More animals than are permitted by Section 17.28.030C O O O O O O O Wild animals O O O Commercial uses, minor, for project residents • Home occupation Storage, open" Education and training Colleges and universities O O Schools, elementary and secondary (boarding and nonboarding) O O O O O O O Energy production from renewable sources O O O O Festivals and similar events, temporary outdoor • O O O Government buildings O O O O O O O O Correctional institutions O Fire stations O O O O O O O O O Law enforcement facilities O O O O O O O Grading ♦ ♦ ♦ Within an overlay zone SEE CHAPTER 17.36 Hospitals O O Hospitals for large animals O O Libraries O O O O O O O Mineral resource development O O O Mining and accessory uses O O O Less than 9 months in duration O O O O Page 3 of 5 Revised Table 17.20.050 Public works maintenance Oil and gas exploration and production O O O O Mobilehome parks O O O O O O Model homes/lot sales'; 2 years More than 2 years O O O O O O Motion picture and TV production, and related activities and structures O O O O O O O O O Temporary (maximum 42 days in any 180 -day period) 1.2 ♦ ♦ ♦ ♦ ♦ Pipelines and transmission lines, aboveground O O O O O O O O O O Public utility facilities, excluding offices and service yards' O O O O O O O O O O Recreational sport and athletic facilities Camps O O O Campgrounds O O O O Community centers O O O O O For farm workers and nonprofit farm community organizations O O O Fields, athletic O O O O O O Geothermal spas Golf courses, except miniature gol O O O O O O O O Parks ♦ O ♦ ♦ ♦ ♦ ♦ • O With buildings O O O O O O O O O Periodic outdoor sporting events O Recreational vehicle parks O O O Recreation projects, city- initiated Caretaker recreational vehicle, accessory2 Retreats': Without sleeping facilities O O O With sleeping facilities O O O O Riding stables O O O O With accessory lodging facilities O O Shooting ranges and gun clubs Signs (see also Section 17.20.040 and Chapter 17.40) ♦ ♦ ♦ ♦ Storage of building materials, temporary z ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ Trees and native vegetation: Removal, relocation or damage -;-T Within an overlay zone SEE CHAPTER 17.36 Uses and structures, accessory (other than to agric. animals or dwellings) ♦ ♦ ♦ ♦ ♦ ♦ ♦ ♦ O O To a use requiring a PD permit or CUP Dwelling, caretaker SEE SECTION 17.44.080A Waste treatment and disposal O O O O O Water production, storage and distribution facilities: Private pury eyors . O O O O O O O O O O Wireless communications facilities5 O O O O O O O O O O Page 4 of 5 Revised Table 17.20.050 Notes for Table 17.20.050: 1. See also Section 17.20.040. 2. There are specific regulations for this use; see Chapter 17.28. 3. See Chapter 17.32 for parking standard. 4. Most public water facilities are exempt from these regulations. 5. There are specific regulations for this use; see Chapter 17.42. (Ord. 264 § 2 (part), 1999; Ord. 196 § 3 (part), 1994; Ord. 189 § 3 (8105 -4), 1994) Page 5 of 5 Revised Table 17.20.060 Section 17.20.060 Permitted uses in commercial and industrial zones. Permitted uses in commercial and industrial zones are set out in Table 17.20.060. Note: All uses located in the M -1 and M -2 zones which at the property line are adjacent to residentially zoned property shall require a city council - approved conditional use permit prior to occupancy of the building. The key for Table 17.20.060 is as follows: [Blank] Not permitted ♦ Permitted by zone clearance • Planning commission - approved planned development permit 0 City council- approved planned development permit O Planning commission- approved conditional use permit !! City council- approved conditional use permit 0 Administrative permit required Temporary use permit Table 17.20.060 PERMITTED USES IN COMMERCIAL AND INDUSTRIAL ZONES EXHIBIT B C2 CO C1 CPD M1 M2 I COT- Airfields and landing pads and strips, private O O O Airports O O Alcoholic beverage Establishments selling beer and/or wine with an eating place 0 0 0 0 0 0 Establishments selling alcoholic beverages other than beer and wine with an eating place • • Amusement and recreational facilities (see definitions in Ch. 17.08) • O • Amusement parks and carnivals O O Arcades O O Batting cages and golf driving ranges, indoor O O Bicycle racing tracks, outdoor O O Health club /gymnasium (see definitions) • • O Martial arts and dance studios • • O Motion picture theaters, outdoor (drive -in) O O Racetracks (for motorized vehicles), shooting ranges and stadiums PROHIBITED Art galleries, museums and artisan workshops ♦ 10 • O • Automobile repair, including component repair Automobile service stations • • Banks and related financial offices and institutions • • • • Barber, hairstylists, manicurists • Tanning centers • Bars, taverns and nightclubs O O Botanical gardens • O • Care facilities: For 7 or more persons (see also H &SC and W &1C) Day ' • • • • • Intermediate and residential O O O EXHIBIT B Revised Table 17.20.060 Care facilities: For 9 or more persons (Day) p Car washes, self - service or automatic O O Cemeteries, columbaria and mausoleums O O O Crematoria, accessory O O O Churches, synagogues and other buildings used for religious worships O • • O O O Clubhouses O • O O O O With alcoholic beverages • O O O O Club projects, temporary outdoor O O O O Communications facilities O O O O O O O Radio and television broadcasting stations O • • O O Conference center /convention center O O Contractor service and storage yards and buildings • Crop production Firewood operations O O Uses and structures, accessory Dwelling, farm worker (maximum one per lot) O O Fuel storage Offices O O Packing, preliminary processing, or storage of crops: Without structures° Produce stands, retail Dog and cat grooming • O Dressmaking and tailor shops • Drilling, temporary geologic (testing only) O O Dwelling for superintendent or owner • Dwelling, caretaker O Education and training Colleges and universities O • O Schools: Elementary and secondary (nonboarding only)z,3 • • • • • O Schools: Professional, vocational, art, craft and self - improvement O O • • O Energy production from renewable sources O O Festivals and similar events, temporary outdoor O O Government buildings, excluding correctional institutions • • • • O • Fire stations • • • O O O Libraries and information center Grading 0 Within an overlay zone SEE CHAPTER 17.36 Grading not in conjunction with a development project Less than 5,000 cubic yards More than 5,000 cubic yards O Health club /gymnasium (see definitions) • Health services such as professional offices and outpatient clinics • • • O O Ambulance services O • • O Hospitals O O O Pharmacy, accessory retail, for prescription pharmaceuticals only • • • Page 2 of 7 f�y,a Revised Table 17.20.060 Hotels, motels and bed - and - breakfast inns • • Kennels (animal hospitals, boarding and grooming - -small animals) O Laboratories: research and scientific • • Medical and dental • • • • Laundry service (laundromats) • Laundry service (light) • Libraries and information center • • • • Manufacturing associated with crafts and artisans Assembly, exhibits, demonstration O Manufacturing industries Apparel and related products *1 • Dressmaking and tailor shops • • Chemicals, gases and related products (see definitions), excluding nerve gas Drugs, pharmaceuticals, perfumes, cosmetics and the like • • Soaps, detergents and cleaners Electrical and electronic machinery, equipment and supplies • • Batteries O Household appliances O • Transmission and distribution equipment, and industrial apparatus O • Food and related products O • Alcoholic beverages Bakery products • • Meat, seafood and poultry packing plants O Slaughtering; refining and rendering of animal fats and oils Sugar refining Furniture and related fixtures • Instruments: measuring, analyzing and controlling • • Jewelry, silverware and plated ware • • Laundry service-- laundromats Laundry service - -light Laundry service - -heavy Leather and leather products • • Tanning, curing and finishing of hides and skins Lumber and wood products and processes • Cabinet work • • Plywood, particleboard and veneer manufacture; wood preserving Sawmills and planing mills Machinery, except electrical • Office, computing and accounting machines • • Metal industries, primary Rolling, drawing and extruding O Metal products, fabricated • Ammunition Machine shops • • Plating, polishing, anodizing, engraving and related operations O • Page 3 of 7 Revised Table 17.20.060 Musical instruments, including pianos and organs • • Paper and related products Products from paper and paperboard, including containers • • Pens, pencils and other office and artists materials • • Personal goods • • Petroleum refining and related industries Photographic, medical and optical goods, and watches and clocks • • O Printing, publishing and related industries • • Print shops (up to 1,500 sq. ft. of gross floor area) • Rubber and plastics products O Tire retreading and recapping • Signs and advertising displays • • Stone, clay and glass products O Asbestos products Cement, concrete and plaster, and products fabricated therefrom O Glass and glassware, pressed and blown, including flat glass Glass products, made of purchased glass • • Rock crushing and sandblasting plants Textile mill products Tobacco products • Toys and amusement, sporting and athletic goods • • Transportation equipment O Motorcycles, bicycles and related parts • Martial arts and dance studios • Mineral resource development Mining and accessory uses Less than 9 months in duration O O Public works maintenance Oil and gas exploration and production O O Motion picture and TV production, and related activities and structures O O O O O O O Temporary (maximum 47 days in any 180 -day period) 1.4 Offices: business, professional and administrative, except health and veterinary • • • • O • Optical goods O Organizations (professional, religious, political, labor, trade, youth, etc.) O Parks -- public Parking lots • • • • • O • Pharmacy, accessory retail, for prescription pharmaceuticals only Photocopy /quick printers • Photofinishing (1 -hour photo) • Pipelines and transmission lines, aboveground O O O O Produce stands, retail Propulsion (engine) testing Public utility facilities O O O O O O O Offices only • • • • • O • Page 4 of 7 3, ` Revised Table 17.20.060 Service yards • O Recording studios and sound stages • O O Rental and leasing of durable goods O O O Bicycle rental • Repair and reconditioning services O O • Automobile body work and painting O O O Automobile repair, including component repair O O • Electrical and electronic machinery and equipment • • Heavy machinery repair, including trucks, tractors and buses • Instruments, including musical instruments • • Office, computing and accounting machines • • Photographic and optical goods • • Repair of personal goods such as jewelry, shoes and saddlery • • Restaurants, cafes and cafeterias • Restaurants, cafes and cafeterias temporary outside eating • • • • • Retail trade (see definitions in Chapter 17.08) includes retail -only nurseries and excludes lumber and building materials sales yards, pawnshops and liquor stores • Antique store Outdoor sales area f Outdoor sales area temporary Retail trade (see definitions) • • Christmas tree sales Feed stores O Lumber and building materials sales yards O O Mail order houses (nonstore) • • Motor vehicle, mobilehome, recreational vehicle and boat dealers' O Nurseries O Uses and structures, accessory SEE PRINCIPAL USE Outdoor sales and services, temporary (see definitions) Repair of products retailed Salvage yards, including automobile wrecking yards Service establishments Business (see definitions) • • • Auction halls, not involving livestock O O • O Disinfecting and exterminating services O O O O Exhibits, building of • • O Sign painting and lettering shops • • • Personal (see definitions) • • Signs (See also Section 17.20.040 and Chapter 17.40) Freestanding off -site advertising signs O Swap meets O O O O Taxidermy • Transportation services (see definitions) O • Bus and train terminals O O Page 5 of 7 'c Revised Table 17.20.060 Stockyards, not primarily for fattening or selling livestock Truck storage, overnight • Trees and native vegetation: removal, relocation or damage Within an overlay zone SEE CHAPTER 17.36 Uses and structures, accessory SEE PRINCIPAL USE Dwelling, for superintendent or owner O O O O Dwelling, caretaker O O Game machines: three or fewer Recreational facilities, restaurants and cafes: for employees only • • Retail sale of products manufactured on -site Temporary buildings during construction ♦ Vaccination clinics, temporary, for pet animals Veterinary clinics, pet animals only O O Warehousing and storage, including ministorage • • Automobile impound yards; dead storage of trucks, buses and the like Building materials, movers' equipment and the like: indoor • • Outdoor Fertilizer and manure Hazardous materials; including pesticides and herbicides Petroleum and gas (butane, propane, LPG, etc.); explosives and fireworks Recreational vehicles • Storage of building materials, temporary Waste treatment and disposal (see definitions) Recycling facilities and centers O • O Water production, storage and distribution facilities: Private purveyors`'$ O O O ♦ ♦ O Wholesale trade • • Wireless communications facilities O O O O O O O Zoological gardens, animal exhibits and commercial aquariums O O 77 Notes for Table 17.20.060: 1. There are specific regulations for this use; see Chapter 17.28. 2. If there is an existing planned development permit for the site, the school facility could be permitted by approval of a modification to the existing permit. 3. For M -1, M -2 and C -O zones, a school facility would only be permitted where sponsored by or permitted within an industrial or commercial use on the same site. 4. See also Section 17.20.040. 5. Churches located in existing buildings with an approved planned development permit will require a modification to that permit. 6. If existing industrial building has approved IPD, restaurant will require approved minor modification to IPD. 7. Restaurants with temporary outside eating facilities shall receive a modification to the planned Page 6 of 7 Revised Table 17.20.060 development permit. 8. Most public water facilities are exempt from these regulations. 9. The establishment must be an otherwise permitted or conditionally permitted use in the zone. 10. Applicable only to those properties within the boundaries of the Downtown Specific Plan Overlay Zone that have a base zoning of CO. 11. There are specific regulations for this use; see Chapter 17.42. (Ord. 265 § 2 (part), 1999; Ord. 247 § 1(E), 1998: Ord. 234 § 2, 1997; Ord. 233 § 3, 1997; Ord. 209 § 3, 1995; Ord. 200 § 3 (part), 1994; Ord. 189 § 3 (8105 -5), 1994) Page 7of7 •r�t;f NOTE PAGES 000161 THROUGH 000164 WERE INCLUDED IN THE PACKET IN ERROR AND WERE REMOVED FROM THIS PACKET INTENTIONALLY FROM : FAX N0. : Apr. 03 2001 01:38PM P2 {/WVOnwireless Verizon Wireless 15505 Sand Canyon Avenue Budding 0-1 Irvine, California 92618 November 19, 2001 Phone 949 286-7000 VIA 1; ACSIAflLE: (805) 529 -8270 Members of the Planning Commission City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Re: Wireless Communications Ordinance; Planning Commission Meeting Scheduled for September 19, 2001 Dear Commission Members: Verizon Wireless is a telephone corporation providing telecommunications services to the general public and to emergency personnel. It has been issued a Certificate of Public Convenience and Necessity by the California Public Utilities Commission ( "CPUC ") and is also licensed and regulated by the Federal Comn u iwAtions Commission ("FCC"). The company received a copy of your proposed wireless ordinance on November 16, 2001. We simply do not have enough time to provide meaningful commentary and request that the draft ordinance be continued. We would like to work with you at the Planning Commission level to craft a fair and reasonable policy. I may be reached at (949) 286 -8768 if you have any questions. I look forward to worming with you. Very� yours, Leslie Daigle For Verizon Wireless ATTACHMENT =- Paul Albritton -- Mackenzie R Albritton 4 415 - 288 -4010 MACKENZI E & A LBRITTON ONE POST STREET, SUITE 500 SAN FIt4NCISCO, CALIFORNIA 94104 TELEPHONE 415 / 288 -4000 FACSIMILE 415/2884010 1201 ill 9/01 ©410 PM D1/3 FACSIMILE TRANSMISSION COVER SHEET DATE: Monday, November 19, 2001 TO: Wayne Loftus, City of Moorpark TOTAL PAGES (including this page): 3 FROM: Paul Albritton -- Mackenzie & Albritton FAX: 805 529 -8270 MESSAGE: RE: Moorpark Wireless Telecommunications Ordinance If ar.y paves are not received or are illegible, please contact (415) 2884000 This transmission is intended for the sole use of the irufi,icival and entity to whorn it is addressed and may contain information that is privileged. confidential and exempt from disclosure under applicable law You arc hereby notified that any dtsseminat ion. distribution or duplication of this transinisnon by xrueouc other than the in:cnded addressee or its designated agen- is sinctly prohibited If your receipt of this transmission is in emir. please notify this firm irnmediatcly by collect call and send the onginal transmission to us by return mail at the above zddics Paul Albritton -- Mackenzie & Albritton 4 415 - 288 -4010 7111/19/01 T410 PM 0213 MACKENZIE & ALBRITTON LLP ONE POST STREET. SurrE 500 SA.V FRANCISCO. CALIFORNIA 94104 TELEPHONE, 41512884000 FA c-I M.111 4151288-4010 SENDER'SEMAIT.: PALBRITTONUNiAI.1 P.0010 November 18, 2001 VIA }FACSIMILE AND EMAIL Wavnc Loftus Director of Community Development Cite of Moorpark 799 Moorpark Avenue Moorpark. California 93021 Bradley Wohlenberg, Esq. Burkc. Williams & Sorensen 611 W. N' St. 25t° Floor Los Angeles, CA 90017-' 3 126 Re: Draft Ordinance Regulating Wireless Communications Facilities with the City of Moorpark Gentlemen: We write to you again as counsel to AT &T Wireless. We are in receipt (last Thursday upon public release), of the first draft of Zoning Ordinance Amendment 1\o. 2001 -03: the Draft Ordinance Regulating Wireless Communications Facilities ( "WCFs ") within the City of 'Moorpark (the "Ordinance ") which is the subject of tonight's Planning Commission Special Meeting. We have numerous comments on the Ordinance which we would like to convey to you and the Planning Commission. We regret that the late release of the draft Ordinance did not permit its to provide you with our full comments today: we intend to provide you with those comments in the next fcw days following review by our client. Below is a quick summary of our comments. We ask that you share this summary with the Planning Commission members. 1. The Ordinance must not impose discretionary review on WCFs located in the public Right -of -Way. California state law grants ATT Wireless a state mandated franchise to place antennas in the public right of way subject only to regulation by cities of the time, place and manner of such installations (usually in the form of an encroachment permit). Similarly, recent Federal Court rulings have found over management of public right of way by cities to violate the Telecommunications Act. 2. Applying a burdensome CUP process to all WCFs may effectively prevent installation of needed facilities in violation of the Telecommunications Act. The City cited a flurry of site applications as justification for its moratorium. Applying the CUP process to all WC1-s will overburden staff and unreasonably delay approval in violation of the Federal Telecommunications Act. The required application, conditions and findings for approval of a WCF are extremely burdensome under the Ordinance as drafted. Specific design and siting regUirements need to be eliminated in favor of more general guidelines which provide flexibility to Cite planners and accommodate varied wireless technologies including microcells. The City Paul Albntton -- MacKenzie & Albntton 4 415 - 288 -4010 mi111/19101 04:11 PM ["313 \,\'avne Loftus Bradley Wohlenberg, Esq. November 19, 2001 Page 2 should use the Ordinance as an opportunity to provide carriers with incentives to develop thoughtfully located and aesthetically acceptable WCFs through an expedited administrative review process which protects the interests of the City. As noted, the discretionary CUP process cannot apply to WCFs in the right -of -way. 3. The need for ATT Wireless infrastructure is established by State and Federal law and is not subject to local review. The public need for the wireless services provided by ATT Wireless has been certified by the California Public utilities Commission. ATT Wireless is further charged with providing adequate service to the public under both State and F ederal law. Determination of the need for infrastructure to adequately provide wireless services to the public is properly left to ATT Wireless as a public utility, and is not the purview of local land use authority. Signal strength and radio propagation maps are an oversimplified measure of the infrastructure requirements for ATT Wireless provision of needed reliable wireless telephone service and cannot be used as a litmus test for WCF site location. Thank you for your consideration of the foregoing points. We will provide you with our comprehensive review of the Ordinance this week and look forward to working with you in crafting a workable Telecommunications Ordinance for the City of Moorpark. Very truly yours, Paul Albritton cc: Daniel Smith, Esquire Leslie Daigle Existing View One Proposed Shown without new IandScajomg View One LA36XCI66 e. October 10, 2001 ;u Proposed- (4) SECTOR ANTENNAS Lookang North from Mandeville Canyon Rd View One MANDEVILLE CANYON RD. 2494 112 MANDEVILLE CANYON RD Page 1 of 2 f +)l C C-, 5-:-W, Suit 604 1- A,,, I r t. l A 4i1047 i TED TOK10 TANAKA AFiiC',,TLOTSa Existing View Two Proposed Shown without new landscaping View Two T. k .1 . yf t. LA36XCI66 _ ._. s October 10, 2001 Proposed- (4) SECTOR ANTENNAS Looking East from Mandeville Canyon Rd View Two MANDEVILLE CANYON RD. 2494 112 MANDEVILLE CANYON RD Page 2 of 2 0W01M mMr6nwoi WPLY,SLY iot H A As,ollAILI S :SAC C._� r tau _..d. Y�� i 404 I_. A,R.I,,. C S 90-1_ TED TOK10 TANAKA AR(;W'Fr ;[A[ Existing View One Proposed Shown without new landscaping View One Proposed- (4) SECTOR ANTENNAS Looklnq South -West from Mancev.lte Canyon Rd View One e gin MURLT.511 11(I('N d 575-W (....... N�•u ir...d, i ,.f n04 1 u. 1 4.1.., CA Y'.04S LA36XC220 WESTRIDGE RD. _ _._ 1701 1/2 WESTRIDGE RD _ October 10, 2001 Page 1 of 2 TED TOKIO TANAKA AR ;. C S� Existing View Two Proposed Shown without new landscaping. View Two LA36XC220 October 10, 2001 Proposed- (4) SECTOR ANTENNAS Looking South -Fast from Westridge Rd View Two WESTRIDGE RD. 1701 1/2 WESTRIDGE RD. Page 2 of 2 �Iy u 1tlf��ri�� 41naivi5trv.ot'p a Aawi lAl�, W (,rni urt 9r.y4—J. wilt 604 1 A,,K,I,. CA "045 TED TGKIG TANAKA .'.H� •.' C'SS I Sprint MICROCELI 4 tj ark Eg" 19T 5w m0q. M. APING - IV Tl� 41 I Per I Sprint MICROCELI I Sprint Existing View Two Proposed Shown without new landscapnrg View Two LA36XC222 October 10, 2001 Proposed- (4) SECTOR ANTENNAS Looking South -West from Westboro St View Two WESTBORO ST. 12851 112 WESTBORO ST. Page 2 of 2 02 aORI Y SIYKt tt R $ ASSIII i %rF5 ri -ry R..lr .,d. S 1, 6 IA 1 o, A,Rr'_ C A i 11141 - - TED TOKiO TANAKA ARCI-11 i ^C i SIU . ; r4�� � �v� ;�: :.- ,_ ,�,�:.. x; Z , ��� ���„ t;� +�; i '��.,,�, �� J r Y :YC, y�7��jJ,' • • • ,i. 4� YMN�""'�"'.. -- - � ' r,,; - .... >�C eta. _ ( 1� - a.,<<�,f� � r' ;i... .. . \5, *�"�� .�, '��-+ ,` � .s rl�' , . ..� ; •, • `rte . 11x' • '.� • �•''. a a ^,�'(y�. A; •i`.�''� .! ,: .yy at ,•7Zi' A e '��' `l ,,'Its ��. K•:�:rY' _ _ , i f .. 'mot , ph � ' ,r ,�. f" . s .. 1�;�'�...• - • �•. � MICROCELL lm . a�t /`.�,. . ,'t r 1 •• � PONEiTbISTRIBaRON �.,,' . ., •, •�►-. G - . ` CABINET BEHIND IOWL ,y LANDSCAPING " Sprint. �.t Yr - 4I •f. •per .� Q1�•' ' . r h MICROCEI L ' C4�81►�Y1REH w r' ?4 "l*DSCAPING ,r `. ;. .•y� � *� FYI .. _,•, r Sprint. Al r r • � r Y h MICROCEI L ' C4�81►�Y1REH w r' ?4 "l*DSCAPING ,r `. ;. .•y� � *� FYI .. _,•, r Sprint. Al Existing View Two Proposed Shown without new landscaping View Two LA36XC220 October 10, 2001 Proposed- (4) SECTOR ANTENNAS Looking South-East from Westridge Rd View Two WESTRIDGE RD. 1701 112 WESTRIDGE RD Page 2 of 2 11 MORFYISEIMOUR & A%so( IAA!� 5-57 W C-1.,y 5­1 6U- I o. AngO­ (A -OJIS TED TOKio TANAKA _7 LA36XC220 October 10, 2001 Proposed- (4) SECTOR ANTENNAS Looking South-East from Westridge Rd View Two WESTRIDGE RD. 1701 112 WESTRIDGE RD Page 2 of 2 11 MORFYISEIMOUR & A%so( IAA!� 5-57 W C-1.,y 5­1 6U- I o. AngO­ (A -OJIS TED TOKio TANAKA Existing View One Proposed Shown without new landscaping View One LA36XC220 October 10, 2001 Proposed- (4) SECTOR ANTENNAS Looking South -West from Mandeville Canyon Rd View One WESTRIDGE RD. 1701 1 -2 VVESTRIDGE RD. Page 1 of 2 M ORtY /Si Yf1UCR h .A \10C1AI F•. VS'. W Gnrun A—I-v J. S.- 604 Lot CA 930 +5 f4;1'a+ TED TOKIO TANAKA AR'l -H - FCFSii a • .X LA36XC220 October 10, 2001 Proposed- (4) SECTOR ANTENNAS Looking South -West from Mandeville Canyon Rd View One WESTRIDGE RD. 1701 1 -2 VVESTRIDGE RD. Page 1 of 2 M ORtY /Si Yf1UCR h .A \10C1AI F•. VS'. W Gnrun A—I-v J. S.- 604 Lot CA 930 +5 f4;1'a+ TED TOKIO TANAKA AR'l -H - FCFSii Existing View Two Proposed Shown without new landscaping. View Two Proposed- (4) SECTOR ANTENNAS Looking East from Mandeville Canyon Rd. View Two M(JRFY,5f YVOCR & A\ Sn(:!AffS 5757 W. Cc—,v Boul,—d• 5ua< 604 1 9OU45 LA36XC166 MANDEVILLE CANYON RD. 2494 1/2 MANDEVILLE CANYON RD. ■■�� October 10, 2001 Page 2 of 2 TFD TOKIO TANAKA ARC �l r 'SiG Sprint. ~� r'• [' • MICROCELi; r .�OVYER&SiRIVT10M .. CABINET BEMIlf NEW • - Sprint. i t �: �j i� S� t2j`} y. 1 �� �I , �.y, :'1, .. :'a 'e `_.;ter �. �., >: y _ �. f* �f! ' .. MACKENZIE & ALBRITTON LLP ONE POST STRUT, SUITE 500 SAN FRANCISCO, CALIFORNIA 94104 TELEPHONF. 415 / 288.4000 FACSIMILE 415 1288-4010 SENDER'S EMAIL: PAI.RRITTONCWMALLP.COM November 30, 2001 VIA FEDERAL EXPRESS Wayne Loftus Director of Community Development City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Bradley Wohlenberg, Esq. Burke, Williams & Sorensen 611 W. 6'h St. 25'h Floor Los Angeles, CA 90017 -3126 Dt-b 17 II „� -C ... - a. A,: f Re: Draft Ordinance Regulating Wireless Communications Facilities with the City of MooMark Gentlemen: On November 19, 2001 we wrote to you as counsel to AT &T Wireless with our preliminary comments to the first draft of Zoning Ordinance Amendment No. 2001 -03; Draft Ordinance Re2ulatinQ Wireless Communications Facilities ( "WCFs ") within the Citv of Moorpark (the "Ordinance "). In our letter we stated three major concerns with the Ordinance as follows: 1. The Ordinance must not impose discretionary review on WCFs located in the public Right -of -Way. 2. Applying a burdensome CUP process to all WCFs may effectively prevent installation of needed facilities in violation of the Telecommunications Act of 1996 (the "Telecom Act "); and 3. The need for AT &T Wireless infrastructure is established by State and Federal law and is not the subject of local review. As you are aware, there is an exponential increase in public demand and need for wireless service. The service provided by AT &T Wireless is not simply a matter of convenience. Cellular telephones have a long history of providing a necessary method of communication in the event of fires and earthquakes, including the Loma Prieta and Northridge earthquakes, and are a critical component of many emergency response systems. AT &T Wireless and other carriers provide vital communication when other methods fail; the recent events in New York and Washington, D.C. make that point very clear. Cellular telephones have moved from a luxury of the last century to a publicly needed utility of this century. This demand can only be met by installation of new antenna facilities. We are concerned that in several ways the proposed Ordinance may seriously delay or prevent the installation of necessary facilities and may do so in a manner that does not comply with CC 4 o C C, C X71, C/4 C P C A I q -TC-J), CTT F 1e) F-i (e L Wayne Loftus Bradley Wohlenberg November 30, 2001 Page 2 applicable law. The Ordinance must comply with both the Telecommunications Act of 1996 and state law; provide for access to public right of way in accordance with federal and state law; and should provide some form of administrative review of WCFs that encourages wireless carriers to install facilities in a manner consistent with the long range land use goals of the City of Moorpark ( "City "). As promised in our November 19, 2001 letter, our more comprehensive review of the foregoing concerns is set forth below. Although the comments below may seem lengthy, as a practical matter, specific revisions to the Ordinance may not be complicated. For example, excluding application of the Ordinance frotn right -of -way can be accomplished in one sentence of Section 17.42.070. Specific setback or design requirements may become advisory by merely changing the defined word "shall" to "should" in several instances. We would be happy to assist in providing proposed Ordinance language at your discretion. Our comments are as follows: 1. The Ordinance must not impose discretionary review on WCFs located in the public Right -of -Way. A fundamental flaw in the Ordinance is that it does not distinguish installation of sites within the public right -of -way from all other sites. Indeed, substantial regulation is imposed on "Utility Mounted" facilities as defined under Section 17.42.020 including the requirement to obtain a conditional use permit for such facilities under Section 17.42.050 Regulations for Both Major and Minor Wireless Communications Facilities generally, and specifically under Section 17.42.070 Additional Regulations for Minor Facilities; the latter Section referencing, "processing of a CUP for Utility Mounted Facility." AT &T Wireless and other functionally similar carriers frequently install wireless facilities within the public rights -of -way, almost always on existing utility poles or light standards (such poles are included under the "Utility Mounted" definition of the Ordinance). As in the case of all public utility installations, wireless or not, the usual procedure for right -of -way installation is to obtain a non - discretionary encroachment permit from the City Engineer. The CUP requirement for Utility Mounted WCFs improperly introduces discretionary review into a process that is intended to be a non - discretionary public works function. As set forth below, local jurisdictions are charged with the issuance of encroachment permits (based upon objective criteria) to telephone corporations that possess a state franchise to use the right - of -way. Adding discretionary CUP review to the process would unduly complicate the administration of many routine applications, and also would go far beyond the City's right to manage the public right -of -way. The appropriate procedure to approve such WCFs is the issuance of a non - discretionary encroachment permit. A. California State Law. AT &T Wireless is a telephone corporation as defined under the California Public Utilities Code pursuant to the Certificate of Public Convenience and Necessity granted AT &T Wireless by the California Public Utilities Commission ( "CPUC "). A "telephone corporation" includes, "every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state. "' "Telephone line" includes, "fixtures, and personal property owned, controlled, operated, or managed in connection with or to facilitate communication by ' Public Utilities Code § 234 Wayne Loftus Bradley Wohlenberg November 30, 2001 Page 3 telephone, whether such communication is had with or without the use of transmission wires. "Z The Public Utilities Code therefore includes within the definition of telephone corporation AT &T Wireless' provision of wireless telephone service and the installation of antennas and equipment necessary to provide such service. As a telephone corporation, AT &T Wireless is entitled to a state granted franchise to install infrastructure in the public right of way under Public Utilities Code § 7901 which provides in relevant part: Telegraph or telephone corporations may construct lines of telegraph or telephone along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters. The CPUC has confirmed that a cellular carrier is a type of "telephone corporation," and has the right, under Public Utilities Code § 7901, to install cellular facilities "along any public road and highway. "' The California Supreme Court has stated that Section 7901 "is a continuing offer extended to telephone and telegraph companies to use the highways, which offer when accepted by the construction and maintenance of lines constitutes a binding contract based on adequate consideration and that the vested right established thereby cannot be impaired by subsequent acts of the Legislature." (Emphasis added) County of L.A. v. Southern Cal. Tel. Co., (1948) 32 C2d 378, 384; 196 P2d 773, weal dismissed, 336 US 929 (1949) (citations omitted). The rights acquired are "vested rights which the constitutions, both state and federal, protect." Id. at 385 (citations omitted). B. Federal Law. The federal Telecom Act contains fundamental limits on the right of a local jurisdiction to regulate the placement of wireless facilities. Under the Telecom Act, state and local government requirements may not "prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. "' Under the "safe harbor" provision of Section 253(c) of the Telecom Act, state and local governments retain the right to "manage the public rights -of -way" on a "competitively neutral and nondiscriminatory basis. "' As recently made clear in City of Auburn v. Owest Corporation, 260 F.3d 1160 (9`h Cir. (Wash 2001) (referred to hereafter as "City of Auburn"), and in Qwest Communications Corp. v, City of Berkeley, -- F.Supp.2d - -, 2001 WL 641534 (N.D. Cal. 2001) (referred to hereafter as "City of Berkeley ") local regulations that "manage the public right -of -way" with respect to the placement and construction of wireless facilities that do not fall within the Section 253(c) "safe harbor" are preempted by federal law and regulation. The City of Auburn Court identified certain areas in which the ordinances under review did not fall within the "safe harbor" of Section 253(c) (Ld. at 1177-1180). After discussing four points in some detail, the Court stated 2 Public Utilities Codc § 233 ' In re: GTE MobilNet of San Jose. L.P.. ctc., 22 C.P.U.C. 2d 25 (Cal. Pub. Util. Comm. 1986) 47 USC § 253(a). '47 USC § 253(c). Wayne Loftus Bradley Wohlenberg November 30, 2001 Page 4 that "[wle have specifically discussed only those aspects of the ordinances that most seriously violate § 253(c), but others are objectionable as well. (Id. at 1179). As an example of such an "objectionable" provision, the Court cites a requirement for a public hearing before granting a local franchise to use the public right -of -way. (Id. at Fn 19, at 1180). The Telecom Act further provides that local regulation of the placement of wireless facilities "shall not unreasonably discriminate among providers of functionally equivalent services."' Interpreting another functionally related section of the Telecom Act, the FCC has stated that local governments may impose conditions only if they are applied "equally to all users of the rights -of- way "' and may not impose conditions on one user, such as a telecommunications company, in a different manner than imposed on other users. C. The Ordinance Cannot Require a CUP for the use of the Right of Way. As the above recitation of State and Federal law make abundantly clear, the Ordinance must not impose discretionary review on WCFs located in the public right -of -way. As a telephone corporation, AT &T Wireless is entitled as a matter of law under Public Utilities Code § 7901 to install equipment facilities "along any public road and highway"' subject only to reasonable local restrictions as to the time, place and manner in which such roads and highways are accessed.9 Limits on a City's ability to restrict wireless facilities in public rights -of -way under the Telecom Act have been made clear in City of Auburn and City of Berkeley. Under §§ 7901, 7901.1 of the California Public Utilities Code, the Telecom Act, and the City of Auburn and City of Berkeley cases, a local jurisdiction does not have authority or discretion to deny a telephone corporation access to a public right -of -way, but only to reasonably regulate the time, place and manner in which that access occurs. There is also a federal issue relating to discriminatory impact of the regulations. Application of the discretionary CUP requirement for AT &T Wireless use of public rights -of -way further violates the Telecom Act because it does not apply equally to all functionally equivalent users of the public right -of -way. In sum, the Ordinance must not apply to public right -of -way in the City of Moorpark. 2. Applying a burdensome CUP process to all WCFs may effectively prevent installation of needed facilities in violation of the Telecommunications Act; By requiring a Conditional Use Permit for all WCFs, the draft Ordinance proposes the most restrictive regulation of WCFs possible for the City of Moorpark. On top of the universal CUP requirement, burdensome application, design and siting regulations are imposed with specific guidelines which, in addition to limiting the flexibility of planners, may act as a ban on service in certain areas. As set forth below, such burdensome requirements violate the Telecom Act. A. Telecommunications Act of 1996 The Telecom Act contains fundamental limits on the right of a local jurisdiction to regulate the placement of wireless facilities. Section 332(c)(7)(B) of Title 47 of the US Code states that local regulations: (i) shall not unreasonably discriminate among providers of 47 USC § 332(c)(7)(B) ' Second Report and Order, CS Docket 96-46, $209, FCC 96 -249, adopted May 31, 1996. " In rc: GTE MobilNet of San Josc. L.P., etc., 22 C.P.U.C. 2d 25 (Cal. Pub. Util. Comm. 1986). 9 Public Utilitics Code § 7901.1(a). Wayne Loftus Bradley Wohlenberg November 30, 2001 Page 5 functionally equivalent services; and (ii) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. With respect to radio frequency emissions, the Telecom Act states in 47 USC § 332(c)(7)(iv) that: No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions. In addition, the Telecom Act requires that localities act on siting requests "within a reasonable period of time," and that decisions to deny an application must be in writing and supported by "substantial evidence." 47 USC § 332(c)(7)(B)(ii) and (iii). The aforementioned recent Federal Court decisions clarify the level of local regulations that can have the effect of prohibiting wireless service and are barred by the Telecom Act. In City of Auburn, the Ninth Circuit Court of Appeals held that right -of -way ordinances including such features as "a detailed application form.... documentation of licenses, certain specified items, and `[s]uch other and further information as may be requested by the City "' had the overall impact of creating a barrier to service and were invalid under the Telecomm Act. There the court stated: "Taken together these requirements 'have the effect of prohibiting Qwest and other companies from providing telecommunications services ... and create a substantial and unlawful barrier to entry into and participation in the ... telecommunications markets. "10 B. Universal CUP And Excessive Application Requirements Are Sufficiently Burdensome To Violate Of The Telecomm Act. Universal CUP. Applying the CUP process to all sites is likely not only to over - burden City staff, it may effectively prevent installation of needed facilities in violation of applicable provision of the Telecom Act. To avoid violation of the Telecom Act, Section 17.42.050(B) and Section and Tables 17.20.050 and 17.20.060 of the Ordinance should be revised, at a minimum, to allow WCF's as a permitted use in Commercial, Manufacturing and Industrial zones. In addition, as it now stands, the Ordinance does not treat small facilities, so- called "Minor Facilities ", which are by definition disguised from view, any differently from somewhat larger "Major Facilities ". There is no incentive in the level of design or zoning review to construct small unobtrusive facilities. Section 17.42.050 should be revised to require administrative review of "Minor Facilities" or, alternatively, another newly defined "preferred" category of visually insignificant WCFs. Burdensome Application Requirements. The application requirements which apply to both Major and Minor Facilities under Ordinance Section 17.42.050 are excessive. In addition to complying with the design requirements of 17.42.050(D) the applicant must also provide a letter which both explains and "validates" such compliance under 17.42.050(C)(4); a nearly unachievable standard. Under 17.42.050(C)(5) the applicant is asked to identify WCF's owned, operated or used by the applicant "within the City of Moorpark, or within five (5) miles of its geographic borders, as well as any proposed or planned sites." The requirement to provide 10 City of Auburn, sue, at 1 178 -1 180 Wayne Loftus Bradley Wohlenberg November 30, 2001 Page 6 information regarding sites distant from City borders is arbitrary, excessive and clearly beyond the jurisdiction of the City. Because siting is demand driven, and demand is ever changing, applicant's can only provide information for WCF's for which permit applications have been filed. Under 17.42.050(C)(6) the applicant must provide propagation maps for "area(s) bordering the City ", and more onerously, "the reasons, if any, why the applicant cannot locate the Facility outside the City of Moorpark and the efforts, if any, that applicant has made to locate the Facility outside the City of'Moorpark" (emphasis added). These kind of application requirements validate the concern of the Federal Court in City of Auburn and are direct violations of the Federal prohibition on unreasonable barriers to the provision of wireless services. C. Specific Development, Setback and Screening Restrictions constitute a Ban on Service. Definitions and Applicability. As presently drafted, Section 17.42.020 makes any WCF with visible antennas (e.g. not "screened by solid material on four sides ") a "Major Facility" and subject to numerous specific restrictions on location, design and siting applicable only to Major Facilities. The application of all Major Facility requirements on the smallest of facilities merely because there are visible antennas is excessive. Many jurisdiction encourage the use of microcell or Minor Facility designs by permitting administrative review of such WCFs. We strongly encourage the City to consider such a policy in order to minimize cumulative aesthetic impact of multiple facilities and, as the Ordinance states as a goal in Section 17.42.010, to "eliminate local restrictions and regulations that ... unreasonably delay, prevent or increase the cost of installation ... of antennas." In the same way, the Ordinance should provide for certain modifications of existing WCF's without further discretionary review; particularly if such modifications will have little or no aesthetic impact (or indeed may reduce aesthetic impact). The Ordinance appears to require full and burdensome review of all modifications as provided in Section 17.42.030(A). Development, Setbacks and Screening. Numerous burdensome development, setback and screening requirements also appear in Sections 17.42.050(D), (E) and (F) respectively. With respect to Development Requirements, Section 17.42.050(D)(2) requires that all Accessory Equipment including "transmission cables" be located within "a building, an enclosure or underground vault ". The defined term "shall" is used which Section 17.42.020 states, "is always mandatory and not merely directory ", making the requirements of this section (e.g. that there be no exterior cables between antennas and Accessory Equipment) impossible to implement. This section further requires that Accessory Equipment visible in a residential neighborhood be screened by "a solid masonry wall." Some of the most visibly unobtrusive WCF's involve utility pole mounted antennas with a small curbside cabinet which would be made more obtrusive by a masonry wall. In general, specific development requirements should be discouraged as inflexible. Such specific requirements are excessive and unnecessary and remove the discretion of planners to help determine the best aesthetic alternative for screening Accessory Equipment. Similar specific requirements appear in Section 17.42.050(E), 17.42.080A(2) and (5) and 17.42.080(D)(1) and (2) regarding distance of sites to residential or other WCFs. The imposition of absolute distance limitations may well have the "effect of prohibiting the provision of personal wireless services" in a given area, and would therefore violate the Telecom Act." Like the specific requirements above, specific distance limits take away flexibility on the part of the cc Section 332(c)(7)(B) of Title 47 Wayne Loftus Bradley Wohlenberg November 30, 2001 Page 7 planning agency. It may be, for example, that in order to provide service, an AT &T Wireless facility must be located somewhere within 1,000 feet of an existing Major Facility, and AT &T Wireless has designed a very unobtrusive facility. The draft Ordinance would presently prohibit any such facility. In this instance the imposition of absolute limits on the distance between installations clearly constitutes a ban on service. The same can be true of the distance restrictions from residential property. We find the Development Requirement in Section 17.42.050(D)(6) to be patently unlawful. The requirement that an owner of property must consent to future collocation of other Facilities on its property would be a "taking" in violation of established Federal law.'' The Screening and Site Selection Guidelines of Section 17.42.050(F) must remain advisory as stated in the preamble to this section. Consequently, the word "shall" in 17.42.050(F)(1) must be replaced with the word "should" to avoid the suggestion that all WCFs must be "Disguised" or "Stealth" facilities. Similarly, to maintain flexibility in design and review by City planners, the phrase, "to the extent feasible" should be added to 17.42.050(F)(1) and (2) as it appears in Section 17.42.050(F)(4). Siting guideline 17.42.050(F)(5), and other parts of the Ordinance's create a preference for co- location. Given new "stealth" technologies, co- location is frequently not an aesthetically preferred solution for WCF siting. Although co- location should be considered, the cumulative aesthetics should be considered in addition to mere "feasibility ". Co- location is not a panacea to resolving aesthetic concerns and may exacerbate them in certain locations. D. Environmental restrictions are prohibited Testing the limits of Federal pre - emption of the environmental effects of radio frequency emissions, Section 17.42.050(C)(9) of the Ordinance asks the applicant to provide a preliminary environmental review with "special emphasis" on "health impacts ". Of all of the Federal restrictions on local regulation of WCF siting, the Federal pre- emption of the health impacts of radio frequency emissions is the most clear. The relevant provisions of the Telecom Act bear repeating, "No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission's regulations concerning such emissions. "14 The emission standards adopted by the FCC under Congressional mandate were the subject of extensive scrutiny and constitute a national exposure standard that reflects the consensus of federal agencies charged with protecting public health and the environment, including the Federal Drug Administration (FDA), Environmental Protection Agency (EPA), National Institute on Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA). AT &T Wireless is required to provide evidence to the FCC of compliance with FCC emission standards prior to construction of any facility and is required under Federal law to maintain the site in full compliance with those standards. The requirement in the Ordinance regarding "health impacts" must be deleted. 12 Sce Loretto v. Teleprompter Manhattan CATV Corp., 102 S.Ct. 3164 (1982) " See Ordinance Section 17.42.070(A)(2) "47 USC § 332(c)(7)(iv) Wayne Loftus Bradley Wohlenberg November 30, 2001 Page 8 The Screening and Site Selection Guidelines of Section 17.42.050(F) must be revised as they apply to alternatives analysis. Alternatives analysis is relevant as it applies to aesthetics; and cannot be relevant as it applies to environmental affects of a WCF as pre - empted by Federal law. Consequently, the alternate site review of 17.42.050(F)(1) should supersede any blanket alternatives analysis provided under 17.42.050(F)(6) which should be deleted. E. Summary As recently confirmed by the Ninth Circuit Court of Appeals in City of Auburn, local regulations that have the effect of prohibiting wireless service are barred by the Telecom Act. Such conditions in the Ordinance as set forth above must be revised or deleted. 3. The need for ATT Wireless infrastructure is established by State and Federal law and is not the subject of local review. The Ordinance erroneously presumes that the Moorpark Planning Commission must determine the public need for WCFs within the city limits of Moorpark. Section 17.42.060(A)(1) establishes as a "required finding for all wireless facilities" that "the proposed Facility will be an enhancement to the City due to its ability to provide additional communications capabilities." Similarly, Section 17.42.060(A)(6) requires a finding that "the public need for the use of the Facility has been documented." That there is a public need for reliable wireless telecommunications networks is well established by the Telecom Act. That there is a public need for AT &T Wireless WCFs in California has been firmly established by the California Public Utilities Commission. It is presumptive to suggest that the determination of the Moorpark Planning Commission of the public need for WCFs in Moorpark supersedes Federal and State determinations. Finally, it is entirely presumptive for Moorpark to require that public utility infrastructure enhance (rather than merely provide or preserve) service to its community. A. State Law The public need for the wireless services provided by AT &T Wireless is well established under California state law. As detailed above, AT &T Wireless is a "telephone corporation" under California law and therefore a "public utility" with a designated California Public Utility number. As such, AT &T Wireless is regulated by the California Public Utilities Commission and holds the rights of other California public utilities, including rights of eminent domain. The public need for AT &T Wireless services has been specifically determined by the California Public Utilities Commission. The CPUC has granted AT &T Wireless a Certificate of Public Convenience and Necessity to operate in California providing wireless telecommunications services to the general public. Such determination of need is beyond the jurisdiction of Moorpark. In confirming its pre - emption of local authority in such determinations the CPUC has stated: It has long been settled that the business of supplying the people with various forms of telephone service is not a municipal affair; it is a matter of statewide concern, and the Legislature, pursuant to the authority contained in Section 23 of Article XII of the California Constitution, has vested in this Commission the exclusive jurisdiction to supervise and regulate telephone utilities (Pac.Tel. & Tel.Co. v City of Los Angeles (1954) 44 C 2d 272). In re: GTE MobilNet of San Jose. L.P., etc, 22 C.P.U.C. 2d 25, 1986 Cal. PUC LEXIS 568, pp. 15 -16. Wayne Loftus Bradley Wohlenberg November 30, 2001 Page 9 Having received a Certificate of Public Need and Necessity, it is up to AT &T Wireless to determine the infrastructure required to provide the service for which the CPC &N has been granted. While Moorpark retains certain land use controls over the placement of such facilities; Moorpark's authority does not extend to any determination of need for AT &T Wireless telecommunications services in Moorpark or its vicinity. Like any public utility, AT &T Wireless determination of the infrastructure needed to adequately provide service to the public is neither random nor cavalier. Determination to install particular facilities are based upon increasing demand for service balanced against the high cost of implementing such installations. Were it not for the overwhelming demand for adequate and reliable wireless telecommunications service in a particular jurisdiction, AT &T Wireless would not willingly expend the enormous capital and human resources required to install WCFs throughout the state. The public need for such investments in basic infrastructure are not the subject of review for public utility services such as water, sewer, electricity, gas or telephone and similarly should not be the subject of review for wireless telecommunications service. B. Federal Law. The primary purpose of the Telecom Act is to provide a competitive market for the provision of personal wireless telecommunications services. The congress clearly established in the enactment of the Telecom Act that such competition was required in order to meet the demonstrated need and demand of the American public for the expansion of such services. As noted above, in establishing the Telecom Act, Congress specifically limited the ability of local jurisdictions to regulate the expansion of wireless telecommunications services to the public by stating that local regulations: (i) shall not unreasonably discriminate among providers of functionally equivalent services; and (ii) shall not prohibit or have the effect of prohibiting the provision of personal wireless services. In protecting their Federal rights, many wireless telecommunications carriers have challenged adverse land use determinations as "effectively prohibiting the provision of personal wireless services ". Federal courts have variously characterized such prohibition as "gaps" in coverage or the inability to provide "reliable wireless services" in overturning local land use determinations. The effect of the proposed Ordinance, however, is to turn this Federal prohibition on local land use regulation on its head by requiring a "finding" that a proposed AT &T Wireless facility eliminates a gap in coverage in order for the facility to be constructed. The need for seamless and reliable wireless telecommunications networks is evident in the spirit if not the letter of the Telecom Act. It is erroneous to interpret the prohibitions of that Act as a requirement that all new WCFs must fill a gap in coverage or enhance service within the geographic limitations of a particular community. Finally, although radio signal propagation maps are useful in identifying gaps in coverage, they are limited in their use for predicting reliable wireless service to a particular area. Signal strength is but one measure of a customer's ability to complete a cellular call at any particular moment. Roadway configurations (and changes), congestion patterns, daily and seasonal demands, rate structure, evolving technologies, quality of customer equipment and even sun spots can affect the viability of wireless telecommunications at any time in any location. Signal strength and radio propagation maps are an oversimplified measure of the infrastructure requirements for AT &T Wireless provision of needed reliable wireless telephone service. Wayne Loftus Bradley Wohlenberg November 30, 2001 Page 10 C. Summary AT &T Wireless is charged with providing telecommunications service to the public under both State and Federal law. Determination of the need for infrastructure to adequately provide wireless services to the public is properly left to AT &T Wireless as a public utility, and is not the purview of local land use authority. The required findings of Section 17.42.060(2) and (6) must be deleted. 4. Public Property Facilities; Reservation of Rights and Facility Removal. Three specific provisions of the Ordinance require specific comment: Section 17.42.090 Public Property Facilities. The Ordinance suggests a priority for WCFs located on public property facilities. The permitting requirements for placement of WCFs on such designated public locations, however, appears to be the same CUP requirement as for non - designated locations. The City, if it seeks to encourage WCFs on identified public locations, should create a mechanism (such as administrative review) for the placement of facilities on such preferred or identified locations. Section 17.42.120 Reservation of Rights to Review Permits. Review of permits should only occur when modifications occur which are significant. Through the history of a WCF, antennas will have to be changed, technologies will change and new equipment will have to be installed. The relevant factors with respect to land use considerations should be whether there is a significant change in the environmental impacts (aesthetics) of the WCF. The specifics of this Section need to be made more flexible. Specifically, the requirement to modify a CUP for any change in antenna is not warranted (particularly if the antenna is of similar or smaller dimensions). Section 17.42.120 Facility Removal. With changing technologies, certain WCFs may be inoperable while awaiting a change in antennas or accessory equipment. In such circumstances the use of that facility cannot be deemed permanently discontinued. Similarly, facilities cannot be deemed abandoned due to interruptions in operation when rent continues to be paid on the Facility. A carrier should only be obligated to remove facilities for which the carrier has no intent of future use or which have become a safety risk due to lack of maintenance; Section 17.42.120 should be revised accordingiy. Specific removal criteria based upon carrier intent should be established for facilities in the public right of way where no rent is paid. Wayne Loftus Bradley Wohlenberg November 30, 2001 Page 1 1 Conclusion The foregoing comments suggest certain fundamental revisions to the Ordinance. As noted at the outset of this letter, as a practical matter, specific revisions to the Ordinance may not be complicated (e.g. excluding application of the Ordinance from right -of -way can be accomplished in one sentence of Section 17.42.070). Again, we would be happy to assist in providing proposed Ordinance language at your discretion. Thank you for considering the above perspective of AT &T Wireless on the proposed Ordinance. Very truly yours, Paul Albritton cc: Daniel Smith, Esq. Leslie Daigle LAW OFFICES ITEM q ,E. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP WA' -T =R L NOSSAMAN SUITE 1800 JOHN T KNOX 1188619641 `.YARREN G ELLIOTT 445 SOUTH FIGUEROA STREET December 18101 VON :CARMAN AVENUE OF COUNSEL WILLIAM E GU7- -NER 3R IRVINE. CALIFORNIA 926120177 SACRAMENTO CA 958148701 11v32'1e9`-'1 TELEPHONE (949) 8337800 (916) 442 8888 FACSIMILE (949) 8337878 REFER TO FILE NUMBER SAN FRANCISCO WASHINGTON, D C THIRTY FOURTH FLOOR RECEIVED SUITE 370.5 50 CALIFORNIA STREET 601 13" STREET N W SAN FRANCISCO CA 94 1 1 14 799 GREGORY W. SANDERS WASHINGTON, D C 20005 (4 151 395 3 60 0 EMAIL gsanders @ncssaman COm 1202) 7837272 LOS ANGELES SACRAMENTO THIRTY-FIRST FLOOR SUITE 1000 445 SOUTH FIGUEROA STREET December 3, 2001 915 L STRE =T LOS ANGELES. CA 9007/1602 SACRAMENTO CA 958148701 (2 13) 612 7 80 0 (916) 442 8888 REFER TO FILE NUMBER 030769 -0002 RECEIVED VIA FEDERAL EXPRESS DEC 4 2001 The Honorable Patrick Hunter, Mayor and Members of the City Council CITY CLERK'S IDEPAH MENT CITY OF MOORPARK City of Moorpark 799 Moorpark Ave. Moorpark, CA 93021 Re: Proposed Ordinance of the City Council of the City of Moorpark, California, Regulating Wireless Communications Facilities Within the City of Moorpark (Zoning Ordinance Amendment No. 2001 -03) (City Council Agenda of December 5, 2001) Dear Mayor Hunter and Members of the City Council: We represent Sprint PCS and its affiliated entities, including Cox PCS Assets, LLC ( "Sprint "), with regard to all matters related to installation, operation and maintenance of wireless communications facilities in the City of Moorpark. The purpose of this letter is to provide you with the comments of Sprint regarding the proposed Ordinance of the City Council of the City of Moorpark, California, Regulating Wireless Communications Facilities Within the City of Moorpark ( "Ordinance "). The comments below refer to the Ordinance as considered by the Planning Commission. Sprint supports the proposed "microcell" exemption and an Administrative Permit process for pre- approved locations, as discussed in the Moorpark City Council Agenda Report on the Ordinance, dated November 29, 2001. Following are Sprint's comments: A. Section 17.42.030(D). Why are the exemptions from the provisions of the Ordinance that relate to volumetric considerations limited to specific types of Anteruia Structures'? If an Antenna Structure that is a component of a cellular or PCS communications facility meets the volumetric requirements of this section, such facility should also be exempt trorn the provisions of the Ordinance. 214570 1.DOC CAS •'r- `� �(; NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP The Honorable Patrick Hunter, Mayor and December 3, 2001 Page 2 B. Section 17.42.050(B). It is not clear whether Major Facilities and Minor Facilities (as defined in the Ordinance) are permitted in residential zones. It is Sprint's position that telecommunications facilities may not be excluded from residential zones and, as further explained below, Sprint has the right to install, operate and maintain telecommunications facilities in the public rights -of -way pursuant to Public Utilities Code section 7901, et seq. C. 17.42.050(E). This provision may negatively impact Sprint's ability to install, operate and maintain telecommunications in the public rights -of -way in violation of Sprint's franchise rights under Public Utilities Code section 7901, et seq. D. 17.42.060(D). The requirement that Accessory Equipment (as defined in the Ordinance) that forms part of a Utility Mounted Facility (as defined in the Ordinance) "be visually compatible with the surrounding environment" is made unnecessary by the further requirement that such equipment be "shrouded by sufficient landscaping to screen the Accessory Equipment from view." E. 17.42.080(A)(4). This provision may negatively impact Sprint's right to install, operate and maintain telecommunications facilities in the public rights -of -way pursuant to Public Utilities Code section 7901, et seq. F. 17.42.080(A)(4). The fact that there is no land or building owner willing to lease a telecommunications site should be added to the list of evidentiary items that may be used to support approval of a Ground Mounted Facility (as defined in the Ordinance). G. 17.42.080(0). The maximum ten (10) foot exemption from the maximum building height for an applicable zoning district is arbitrary. Sufficient latitude should be given in this provision to permit antenna structures in excess of ten (10) feet over the maximum building height if justified for technical or other reasons. H. 17.42.080(0)(1). What is the policy behind the restriction against locating a Major Facility (as defined in the Ordinance) within 200 feet of any property containing a residential use? H. 17.42.080(D)(2). What is the policy behind the restriction against locating a Major Facility (as defined in the Ordinance) within 500 feet of an existing Major Facility? I. 17.42.080(D)(3). This provision fails to address the disposition of wireless telecommunications facilities in areas scheduled for utility undergrounding projects. 17.42.090. As it relates to the public rights -of -way, this provision is inconsistent with Sprint's rights under Public Utilities Code section 7901, et seq. and the federal Telecommunications Act of 1996. A comprehensive review of Sprint's right to install, operate 214570 I .DOC NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP The Honorable Patrick Hunter, Mayor and December 3, 2001 Page 3 and maintain telecommunications facilities in the public rights -of -way was set forth in a letter from us to City Attorney Joe Montes dated August 30, 2001. A copy of the letter is enclosed. Thank you for the opportunity to comment on the Ordinance. We will be present at the City Council hearing on this matter on December 5, 2000 to offer oral testimony and respond to your questions. ; Si er ly, Gregory a rs of NOS A GUTHNER, KNOX & ELLIOTT, LLP c;ws dsn Enclosure 214570 1.DOC LAW OFFICES NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP WALTER L. NOSSAMAN SUITE 1800 JOHN T. KNOX (1886.1964) WARREN C. ELLIOTT 18101 VON KARMAN AVENUE OF COUNSEL WILLIAM E GUTHNER. JR IRVINE. CALIFORNIA 92612 -0177 (1932.1999) TELEPHONE (949) 833 -7800 FACSIMILE (949) 633 -7878 6—AN FRANCISCO WSHINGTON D C_ THIRTY- FOURTH FLOOR SUITE 370 -S 50 CALIFORNIA STREET 901 13" STREET N.W SAN FRANCISCO. CA 94111.4799 GREGORY W. SANDERS WASHINGTON. D.C. 20005 (415) 398 -3900 DIRECT DIAL NUMBER (2 02) 763.7272 (949)A77 -7669 LOS ANGELES EMAIL- gsanders@nossaman.com SA_Q A E14—Q THIRTY -FIRST FLOOR SUITE 1000 445 SOUTH FIGUEROA STREET 915 L STREET LOS ANGELES. CA 90071.1602 SACRAMENTO. CA 9S614.3701 (213) 612.7600 (916) 442 -6685 August 30, 2001 REFER TO FILE NUMBER Joe Montez, Esq. City Attorney — City of Moorpark 611 West Sixth Street, Suite 2500 Los Angeles, California 90017 Re: Sprint Spectrum, L.P.: Applications to Install Telephone Facilities in Public Right -of -Way Dear Mr. Montez: We represent Sprint PCS and its affiliated entities ( "Sprint ") with regard to all matters pertaining to the provision of wireless communications services in the City of Moorpark ( "City"). The purpose of this letter is to follow up on our brief prior conversation regarding the scope of Sprint's rights to access the public rights -of -way within the City for the installation of its wireless telecommunications facilities and provide you with a thorough explanation of the legal bases for Sprint's position on this matter. After you have read this letter, I suggest that we speak and determine how best to handle Sprint's applications for permits to access the public rights -of -way. A. Executive Summary The State of California has granted all telephone companies access to public rights -of- way throughout the state. Local authority regarding the rights -of -way is limited to general management of the rights -of -way including such items as regulating the time, place and manner of construction within the rights -of -way. In addition, the Telecommunications Act of 1996 includes broad preemption provisions and limitations on local authority that might otherwise impede the development of wireless telecommunications infrastructure. The combination of these bodies of law narrowly curtails the City's regulatory authority regarding the applications at issue. 212356_1 .DOC NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 2 1. Local jurisdictions do not have the right to compel Sprint to process applications through formal zoning before accessing public rights -of -way. The local approval process should be limited to the ministerial function of confirming Sprint's status as a telephone company for purposes of Public Utilities Code section 7901, and management of construction in the rights -of- way (usually in the form of encroachment and excavation permits). It cannot prohibit or limit Sprint's ability to provide wireless services. 2. Local municipalities, including cities and counties, have limited authority to assess fees for projects in public rights -of -way. Fees must be reasonably calculated to compensate the municipality for costs of maintaining and managing the public rights -of -way. Fees cannot be assessed for the purpose of enhancing general revenues. 3. A city's status as a holder of a freeholders' charter in 1905 does not authorize a city franchise requirement. The California Supreme Court has recognized that development of telephone lines (including wireless facilities) in the public rights -of -way is a state, not a municipal, affairs and that, even within 1905 freeholder borders, local municipalities are prohibited from requiring an additional franchise. Any local franchise requirement imposed on telephone companies seeking to build telephone communications facilities in public rights -of- way is void. 4. Questions regarding Sprint's status as a utility are improper in right -of -way applications. Sprint's right to build in public rights -of -way stems from the Telecommunications Act and, more directly, California Public Utilities Code section 7901. Section 7901 is triggered by Sprint's status as a telephone company, not Sprint's status as a utility or a non - utility. Indeed, status as a utility is wholly irrelevant to section 7901, and non - utility telephone companies enjoy the same access to rights -of -way as utility telephone companies. The confusion we have encountered on this issue appears to stem from the federal preemption of the Public Utilities Commission's authority to regulate wireless carriers. The Telecommunications Act of 1996 divests the Public Utilities Commission of any discretion to authorize or license wireless carriers to operate in the State of California. Because the Commission lacks that discretion, it has avoided the practice of recognizing wireless carriers as utilities and issuing Certificates of Public Convenience and Necessity. In the case of other utilities not covered by the Telecommunications Act, such a failure to act by the Public Utilities Commission might affect the utility's request for access to the public rights -0f - -way. However, in the case of Sprint, a statutory "telephone corporation," the failure to act by the Public Utilities Commission is a proper and appropriate recognition of the limits on its authority that result from the broad federal preemption in this field. 5. While local jurisdictions may regulate right -of -way construction through encroachment and excavation permits, they cannot require Sprint to obtain a business license to build in the right -of- way. The statewide franchise grants unrestricted access to public rights -of - -way and any license that exceeds the permissible right -of - -way regulation violates this provision. l The Telecommunications Act of 1996 has further removed telecommunications regulation from local government by federalizing this area with only narrow exceptions. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 3 6. With regard to wireless providers, a Wireless Identification Registration is the functional equivalent of a Certificate of Public Convenience and Necessity. Thus, wireless carriers are not required to obtain a CPCN to build telephone facilities in the right -of -way. B. Analvsis and Discussion 1. State and federal law prohibit local municipalities from excessively regulating Sprint's access to public rights -of -way. The ability of local jurisdictions to regulate Sprint's access to public rights -of -way, whether through a zoning process or otherwise, is severely limited. California has granted Sprint a statewide franchise to build wireless facilities in public rights -of -way. This franchise extends to all public rights -of -way regardless of whether they exist within a city or an unincorporated area. In addition, the Telecommunications Act of 1996 preempts local and state regulations with narrow exceptions. The net effect of these provisions is that local zoning processes and discretionary land use reviews are inapplicable to telecommunications projects in the public rights -of -way. a. California has granted Sprint a statewide franchise to build wireless facilities in public rights -of -way throughout the state. California Public Utilities Code section 7901 grants all telephone companies a statewide franchise to construct telephone lines in public rights -of -way: Telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within this State, and may erect poles, posts, piers or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such a manner and at such points as not to incommode the public use of the road or highway or to interrupt the navigation of the waters.2 Although section 7901 refers to "telephone corporations," that term is expressly defined in the code to include any corporation or person owning, controlling, operating, or managing any telephone line for compensation within the state. Likewise, section 7901, while referring to telephone lines, applies to wireless services as well as land -line services.4 Thus, Sprint's status as a limited partnership and as a wireless carrier is irrelevant to a section 7901 analysis. The statewide franchise offer is extended to all telephone corporations, and Sprint qualifies as a telephone corporation for purposes of section 7901. 2 Cal. Pub. Util. Code § 7901. 3 Cal. Pub. Util. Code § 234(a); see also Commercial Communications, Inc. v. Pub. Util. Comm'n of the State of Cal., 50 Cal. 2d 512, 521 (1958). 4 Cal. Pub. Util. Code § 233. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 4 Section 7901 is interpreted by the courts as a statewide offer of a franchise to telephone carriers to construct and operate telecommunications facilities in public rights -of -way throughout the state. State agencies are prohibited from requiring telephone carriers to compensate the state for valid exercises of the franchise created by section 7901.5 Moreover, since the legislative offer is unrestricted, neither state agencies nor lower divisions may require telephone carriers to hold the state harmless from any liability arising from or relating to the carrier's use of the rights-of-way .6 To accept the offer of a state franchise, a carrier only needs to construct and maintain telephone facilities in the right- of -way.7 The rights acquired by a company by accepting and availing itself of the provisions of the state law are vested rights protected by the state and federal constitutions, and cannot be taken away by the legislature through repeal of the statute or by the people through a constitutional provision.$ A company's vested rights cannot be taken away by the state or a city without compensation.9 Lower jurisdictions have the authority, under their police power, to regulate the manner of placin and maintaining poles and wires in order to prevent the unreasonable obstruction of travel 0 They also have the authority to regulate the manner in which a franchise should be exercised, so long as such regulations do not conflict with the general law. The granting of a primary franchise for telephone service is a state matter.' > The California Supreme Court has held that the right to construct and maintain telephone lines in city streets is a state affair, rather than a municipal one, and no municipality may exclude telephone lines from its streets, on the theory that it is a municipal affair, by requiring that a local franchise be obtained. 12 b. The Telecommunications Act of 1996 preempts any local or state regulation that has the effect of prohibiting Sprint's provision of wireless service, is discriminatory or creates entry barriers. Several provisions of the Telecommunications Act of 1996 (the "Act" or "TCA ") limit the authority of local and state governments to regulate Sprint's installations in public rights -of -way. 5 22 Ops. Cal. Atty. Gen. No. 52 -56, p. 3 (1953); see also County of Los Angeles v. Southern Cal. Tel Co., 32 Cal. 2d 378 (1948). 6 22 Ops. Cal. Atty. Gen. No. 52 -56, p. 1. 7 County of Los Angeles, 32 Cal. 2d at 384; City of San Diego v. Southern Cal. Tel. Corp., 42 Cal. 2d 110, 116 (1954); Pacific Tel. & Tel. Co. v. City of Los Angeles, 44 Cal. 2d 272, 276 (1955). 8 See Postal Tel. -Cable Co. v. Railroads Comm'n of Cal., 200 Cal. 463, 472 (1927); County of Los Angeles, 32 Cal. 2d at 385. 9 Western Union Tel. Co. v. Hopkins, 160 Cal. 106,120 (1911). 10 Western Union Tel. Co. v. City of Visalia, 149 Cal. 744, 750 -751 (1906). 11 Pacific Tel. & Tel. Co. v. San Francisco, 51 Cal. 2d 766, 771 (1959). 12 Id. at 768, 774. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 5 Section 253(a) of the Act preempts state and local regulations that prohibit or have the effect of prohibiting provision of any telecommunications service: No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to �rovide any interstate or intrastate telecommunications service. ?-.3 Section 253(c) preserves state and local regulation of rights -of -way provided they are competitively neutral and nondiscriminatory: Nothing in this section effects the authority of a State or local government to manage the public rights- way -way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights -of -way on a nondiscriminatory basis, if the compensation required is publicly disclosed by such government. 14 Finally, section 332(c)(7) of the TCA bans local or state regulations that prohibit or have the effect of prohibiting the provision of personal wireless services: The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof... shall not prohibit or have the effect of prohibiting the provision of personal wireless services. 1 S The net effect of these provisions is that, even without reference to the State of California's franchise offer of rights -of -way access, the TCA prohibits local regulation of rights -of -way to the extent the regulation prohibits Sprint from providing service, regulates Sprint's entry into new markets, or regulates the rights -of -way on a discriminatory basis. As discussed below, the combination of the federal and state provisions prohibits local jurisdictions from imposing a zoning process as a prerequisite to Sprint's access to public rights -of -way. C. Local zoning processes and discretionary land use reviews are inapplicable to projects in the public rights -of -way. Local authority to regulate construction of telecommunications facilities in public rights -of -way in California is limited by both the Telecommunications Act and the State grant of a rights -of- way franchise. 13 47 U.S.C. § 253(a). 14 47 U.S.C. § 253(c). As discussed in more detail below, although the TCA preserves local and state rights -of -way management, the state has preempted local rights -of -way management to the extent it is inconsistent with the State's unrestricted franchise offer in Public Utilities Code section 7901. 15 47 U.S.C. § 332(cX7XBXiX11). NOSSAMAN, GUTHNEF, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 6 The TCA Ban on Prohibiting Provision of Service. As above, section 253(a) bans the prohibition of the provision of any telecommunication service. In addition, section 332(c)(7) bans state and local governments from prohibiting the provision of personal wireless services. 16 Personal wireless services include PCS services.17 In light of the similar prohibition found in sections 253(a) and 332(c)(7), and the fact that the latter provision applies to wireless carriers in particular whereas the former applies to telecommunications carriers in general, our analysis focuses on section 332(c)(7), with reference to section 253(a) where applicable. While federal courts have not been uniform in interpreting these provisions, even within their disagreement they agree that local decisions or regulations that have the effect of preventing carriers from filling coverage gaps are prohibited. The courts that have been most vocal on this provision, and that represent the spectrum of positions interpreting this provision, are the Second Circuit, the Third Circuit, and the Fourth Circuit. The Second and Third Circuits represent the prevailing and majority view. Those courts have noted that denial of a permit for a site that is "the least intrusive means to close a significant gap in service" would amount to a denial of wireless services in violation of section 332(c)(7)(B)(i)(I1)• 18 The Fourth Circuit is at the opposite end of the spectrum and has expressly rejected the Second and Third Circuit interpretation. Instead, the Fourth Circuit has devised a test that goes no further than the statutory language and mandates a case- by-case analysis of whether a denial has the effect of prohibiting wireless services: Even if we were to apply the rule formulated by the Second and Third Circuits, determinations about what constitutes the "least intrusive means" and "a significant gap" in services, would, we believe, quickly devolve into the broader inquiry indicated by the language of the statute: "Does the denial of a permit for a particular site have the effect of prohibiting wireless services ?" We believe that this statutory question requires no additional formulation and can best be answered through the case -by -case analysis that the Act anticipates. 19 One court within the Ninth Circuit has expressly adopted the Second and Third Circuit test. In Airtouch Cellular v. City of El Cahon,20 the court agreed "with the weight of circuit authority 16 47 U.S.C. § 332(cx7XBxixll). 17 See Sprint Spectrum L.P. v. Town of Durham, 1998 WL 1537756, * 1 (N.H. 1998); Omnipoint Communications Enter., Inc. v. Town ofAmherst, 74 F. Supp. 2d 109,111 (1998). 18 APT Pittsburgh L.P. v. Penn Township Butler County, 196 F.3d 469,480 (3d Cir. 1999); Sprint Spectrum, L.P v. Willoth, 176 RM 630,643 (2d Cir. 1999). 19 360° Communications Co. of Charlottesville v. Bd. of Supervisors of Albemarle County, 211 F.3d 79, 87 (4h Cir. 2000). 20 83 F. Supp. 2d 1158 (2000). NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 7 that 332(c)(7)(B)(i)(II) prohibits decisions which create 'significant gaps' in addition to those which create a'general ban. "' The Ninth Circuit itself has yet to address the interpretation of section 332(c)(7)(B)(i)(II) in a wireless case. However, it has interpreted section 253(a) in a landline case and signaled that it broadly reads the prohibitive language of the Act to impose strict restrictions on local efforts to foreclose provision of telecommunication services.21 The language at issue from section 332(c)(7)(13)(i)(II) closely tracks the language of section 253(a). The former provides that state and local regulation of construction of wireless service facilities "shall not prohibit or have the effect of prohibiting the provision of personal wireless services. "22 The latter provides "no state or local statute or regulation, or other state or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. 23 While section 253(a) broadly applies to all telecommunications services, not just wireless services, both statutes bar local or state regulations that "prohibit or have the effect of prohibiting" provision of such services.24 That is precisely the language that has been interpreted strictly by the Second and Third Circuits and more flexibly by the Fourth Circuit, and is the same language the Ninth Circuit addressed in the City ofAuburn. In interpreting this language under section 253(a), the Ninth Circuit recognized that such preemptive language "is virtually absolute" and that the role of municipalities in the arena is "very limited and proscribed. "25 Indeed, the court held that the scope of local and state regulation is limited to activities that reasonably manage the rights -of -way: Local governments must be allowed to perform the range of vital tasks necessary to preserve the physical integrity of streets and highways, to control the orderly flow of vehicles and pedestrians, to manage gas, water, cable (both electric and cable television), and telephone facilities that criss -cross the streets and public rights -of -way ... [T]he types of activities that fall within the sphere of appropriate rights -of -way management ... include coordination of construction schedules, determination of insurance, bonding and indemnity requirements,26 establishment and enforcement of building 21 City of Auburn v. Qwest Corp., 2001 WL 823718, * 14 (9'" Cir. 2001). 22 47 U.S.0 § 332(cX7XBXiX11). 23 47 U.S.C. § 253(a). 24 See 47 U.S.C. §§ 253(a); 332(cX7)(BXi)(Il). 25 City ofAuburn, 2001 WL 823718, * 14. 26 As noted above, California's unrestricted grant of a franchise to telephone companies precludes such indemnity or hold harmless requirements. 22 Ops. Cal. Atty. Gen. No. 52 -56, p. 1. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 8 codes, and keeping track of the various systems using the rights -of -way to prevent interference between them.27 As the Ninth Circuit has recognized, "right -of -way management means control over the right -of- way itself, not control over companies with facilities in the right -of- way. "28 Within the Ninth Circuit courts have interpreted section 253(a) to prohibit local license requirements;29 local franchise requirements;30 collection of information about the description of telecommunications services to be provided or a carrier's future business and construction plans (i.e., master plans);3 t broad exercises of discretion by local municipalities on the basis of open -ended criteria or criteria not related to the permissible types of regulation described in the quoted text above.32 The Ninth Circuit has recognized with apparent approval similar prohibitions by other courts. Other decisions have held that section 253(a) prohibits local franchise requirements that do not fall within a safe harbor provision, such as section 253(c) of the TCA,33 threats of penalties for failure to obtain a franchise or other municipal consent;34 requirements of submission of proof of financial, technical, and legal qualifications;35 and requirements of descriptions of systems plans or purposes of the telecommunications facilities.36 While the Ninth Circuit has not expressly addressed whether a discretionary zoning process is permitted (and such analysis should be unnecessary in California rights -of -way in light of section 7901), the principles the court has recognized reject such a process. As the court recently held, regulation of rights -of -way is limited to management of the construction and vital tasks necessary to preserve the integrity of streets and highways.37 The Ninth Circuit has squarely rejected broad discretionary exercises by local municipalities, precisely the type of exercise that 27 City of Auburn, 2001 WL 823718, * 16 (quoting In re TCI Cablevision of Oakland County, Inc., 12 F.C.C.R. 21396,1103 (F.C.C. 1997)). 28 Id. at * 16. 29 Qwest Communications Corp. v. City of Berkeley, 146 F. Supp. 2d 1081, 1097 (N.D. Cal. 2001). 30 Id. 31 Id at 1098. 32 Id. 33 City of Auburn at *15-16; see also AT &T Communications v. City of Dallas, 52 F. Supp. 2d 763, 770 (N.D. Tex. 1999) (city's requirement of franchise in order to provide services was found to violate section 253(a) of the TCA). 34 Id. at * 15 (citing AT &T Communications v. City of Austin, 975 F. Supp. 928, 939 (W.D. Tex. 1997)). 35 Id. at * 17 (citing Bellsouth Telecommunications, Inc. v. Toxin of Palm Beach, 127 F. Supp. 2d 1348, 1355 (1999)). 36 Id. (citing Bellsouth Communications, Inc. v. City of Coral Springs, 42 F. Supp. 2d 1304, 1309 (1999)). 37 City of Auburn, 2001 WL 823718, * 16. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 9 would occur under a zoning process.38 The court also rejected any discretionary review by local municipalities that is not directly related to management of the public right- of- way.39 While the court recognized that the municipalities may continue to regulate the time, place and manner of construction, a general zoning process provides local jurisdictions far more discretion then contemplated by the court.40 While we do not suggest that the City of Auburn opinion expressly adopted the Second and Third Circuit interpretation of section 332(c)(7)(B)(i)(II),41 the Ninth Circuit has recognized the broad effects of the identical preemptive language of section 253(a). Moreover, because the Second and Third Circuits articulated a clear test under the provision and the Fourth Circuit opted to utilize the statutory language with no further interpretative aid, it is likely that the Ninth Circuit or any court within the Ninth Circuit faced with this interpretation questions will adopt the Second and Third Circuit test. Indeed, as discussed, the one court within the Ninth Circuit that has looked at the issue has already utilized this approach.42 Under the majority test, any regulation, ordinance, policy, or denial by a local or state government would be void if it prevented Sprint from installing a site that is the least intrusive means to fill non -de minimis coverage gaps.43 The court in Sprint Spectrum LP v. Willoth recognized that the "significant coverage gaps" which providers must be allowed to fill are all gaps other than de minimis dead spots that affect only a few people: Where the holes in coverage are very limited in number or size (such as the interiors of buildings in a sparsely populated rural area, or confined to a limited number of houses or spots as the area covered by buildings increases) the lack of coverage likely will be de minimis so that denying applications to construct towers necessary to fill these holes will not amount to a prohibition of service.44 The TCA Ban on Discriminatory Regulation of Rights -of -Way. Local and state jurisdictions also are limited by section 253(c) of the TCA, which limits regulation of rights -of -way to nondiscriminatory and neutral regulation, and section 332(c)(7)(B)(i)(I) which prohibits discrimination among providers of functionally equivalent services. All wireless service 3 8 See id. at * 17. 39 Id. 40 See Id. at * 16. 41 Indeed the "least intrusive means" analysis of the Second and Third Circuits would not ordinarily be applicable in a landline case, where coverage gaps generally do not factor into the process. 42.4iriouch Cellular, 83 F. Supp. 2d at 1167. 43 See Sprint Spectrum L.P., 176 F.3d at 643. 44 Id. at 643 -644. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 10 providers, whether cellular or PCS are functionally equivalent.45 Thus, any regulation that discriminates between wireless providers violates the Act. Under Section 253(c), the FCC has provided guidance in its decisions and generally has stricken down local regulations that have the effect of diminishing or prohibiting competition.46 Any disparate treatment of a provider that is not based in visual, aesthetic or safety concerns violates the anti - discrimination provisions of the Act. Mhe TCA's legislative history clarifies that local Boards have discretion to treat facilities differently only in so far as they create different visual, aesthetic, or safety concerns ... to the extent permitted under generally applicable zoning requirements.47 Courts that have reviewed the "anti-discrimination" provision have recognized that discrimination may occur in the form of sheltering or temporal discrimination. For example, in Sprint Spectrum L. P. v. Jefferson County,48 a local commission attempted to impose a moratorium on processing of rezoning or zoning applications and issuance of building or development permits for cellular communications towers 49 In finding that the commission unreasonably discriminated among providers of functionally equivalent services, the court noted that "earlier entrants had benefited most from the moratoria, in that they had been sheltered from the competitive forces of a free market, while late entrants offering superior technology have been burdened in their attempts to fill gaps in the broadcast pattern and, thereby, to compete. "50 Where existing carriers are able to provide uninterrupted access along heavily used traffic arteries, denials that prevent a competitor from also providing such interrupted service amount to unreasonable discrimination.5 1 Thus, an ordinance, policy, or denial that directly discriminates among providers by prohibiting one carrier from effectively competing with others violates the anti- discrimination provision. Similarly, an ordinance, policy, or denial that shelters incumbent wireless providers by subjecting new entrants to requirements that inhibit their ability to compete with incumbents also violates this provision. 45 GTE Midwest Inc. v. Federal Communications Comm'n, 233 F.3d 341, 343 (6m Cir. 2000). 46 In the Matter ofSilverstar Tel. Co., Inc., CCB Pol. 97 -1, Memorandum, Opinion and Order, FCC 97- 336 at 142 (1997); In the Matter of the Pub. Util. Comm. of Texas, et. al., CCB Pol. 96-13, Memorandum, Opinion and Order, FCC 97 -346 at 142 (1997). 47 Sprint Spectrum L.P. v. Town of Easton, 982 F. Fupp 47, 51 (D. Mass. 1997). Of course, as discussed above, California's grant of franchise rights prohibits even generally applicable zoning requirements within public rights -of -way. 48 968 F. Supp 1457 (N.D. Ala. 1997). 49 Id. 50 Id. at 1467. 51 Western PCS 11 Corp. v. Extraterritorial Zoning Auth. of City & County of Santa Fe, 957 F. Supp 1230,1237-38 (D.N.M. 1997). NOSSAMAN, GUTHNEF, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 11 The State Franchise Offer. In addition to the federal preemption issues discussed above, local jurisdictions are even further limited in their management of public rights -of -way by Public Utilities Code section 7901. Section 7901 insulates telephone companies from franchise requirements imposed by local governments for the use of public land to lay lines and equipment.52 Under section 7901 Sprint has a state -wide franchise to construct telephone lines in public rights -of -way, and no local government may exercise discretion (beyond management of the right -of -way) to inhibit that franchise.53 The California Supreme Court has recognized that development of telephone facilities within California is a state concern (where not federally preempted).54 Therefore, the state has exclusive power to grant franchises for use of all streets, highways, and public places for construction, maintenance and operation of telephone lines and equipment.S5 As above, this provision precludes local jurisdictions from excluding carriers from public rights -of -way. Any local process that exceeds the limited function of regulating the manner of placing and maintaining facilities is prohibited.56 2. Fees for access to public rights -of -way are limited to reasonable compensation for the municipalities' actual costs of managing the right -of -way. Local governments have limited authority to assess fees for telephone projects in the public rights -of -way. California Government Code section 50030 prohibits fees that exceed the reasonable costs of providing the service for which the fee is charged or are levied for general revenue purposes. 5 In City of Berkeley, the plaintiffs alleged that Berkeley's ordinance was preempted by the Telecommunications Act, California Public Utilities Code sections 7901 and 7901.1, and California Government Code section 50030, titled the California Telecommunications Infrastructure Development Act.58 Even though the district court declined to exercise 52 City of Berkeley, 146 F. Supp. 2d at 1101; see also City of Petaluma, 44 Cal. 2d at 289; City of San Diego, 42 Cal. 2d at 116. 53 See Pacific Tel. & Tel. Co., 51 Cal. 2d at 771, 774. 541d. at 768, 771, 774. 551d. at 768, 774. 56 Cal. Pub. Util. Code § 7901; see also Western Union Tel. Co., 149 Cal. at 750 -751. 57 Section 50030 states: "[ajny permit fee imposed by a city, including a chartered city, a county, or a city and county, for the placement, installation, repair, or upgrading of telecommunications facilities such as lines, poles, or antennas by a telephone corporation that has obtained all required authorizations to provide telecommunications services from the Public Utilities Commission and the Federal Communications Commission, shall not exceed the reasonable costs of providing the service for which the fee is charged and shall not be levied for general revenue purposes." Cal. Gov't Code § 50030. 58 City of Berkeley, 146 F. Supp. at 1088. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 12 supplemental jurisdiction over Qwest's state preemption claim because of the novelty of section 50030,59 the court nevertheless recognized the limited fee authority of the city. In City of Berkeley, the Berkeley ordinance imposed a thorough application and permit process on telecommunication companies seeking to build in the right -of -way. Carriers were required to register and pay an annual registration fee of $3,400. An additional special telecommunications permit was required along with a $2,000 permit fee per project. The carrier was also required to obtain a license and execute a written franchise with the City. The ordinance also provided procedures for public hearings on advance notice. In addition to rejecting this combination of requirements as a substantial barrier to entry of telecommunications service providers, the court significantly curtailed the City's ability to impose fees. The court recognized that "in regulating public rights -of -way pursuant to section 253(c), local governments are allowed to require fair and reasonable compensation from telecommunications providers ... for use of public rights -of- way. "60 The court held that the fees must directly relate to the carrier's actual use of rights -of -way and can go no further than a level reasonably calculated to compensate the municipality for the costs related to the carrier's use of the public right- of- way.61 Significantly, a large portion of the fees in the City of Berkeley case did not apply to common carriers because of a common carrier exemption. The court did not analyze any such fees because it recognized that fees that do not apply to common carriers could not possibly violate the Telecommunications Act provisions at issue. While the City of Berkeley decision stops short of determining whether particular fees violate the Telecommunications Act (because of a lack of evidence presented by Qwest in the case), the opinion clearly recognizes the limitations imposed on local jurisdictions' ability to impose fees in excess of the actual costs related to maintenance of the right -of -way. More specifically, however, the language of Government Code section 50030 expressly and unambiguously limits fees to a level calculated to compensate for actual rights -of -way costs 62 It is important to note that Government Code section 50030 is even more restrictive than the Telecommunications Act regarding the imposition of fees. Regardless of the interpretations of the fees allowed under the Telecommunications Act, Sprint cannot be required to pay a fee in excess of the costs of providing service for which the fee is changed pursuant to section 50030 of the Government Code. 3. Telecommunications facilities in public rights -of -way are a matter of state concern and municipal governments are prohibited from requiring local franchises. As discussed earlier, Public Utilities Code section 7901 preempts any lower jurisdiction from imposing a franchise requirement on telephone companies seeking to develop infrastructure within public rights -of -way. While there are cases in California recognizing that cities which 591d. at 1102. 60 Id. at 1100. 61 Id. 62 See Cal. Gov't Code § 50030. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 13 held freeholders' charters in 1905, when the predecessor to section 7901 was enacted, may impose local franchise requirements in their rights -of -way, the California Supreme Court has recognized that telephone company access to public rights -of -way is a state affair not subject to local franchise requirements. a. The state grant of telephone company access to public rights -of -way preempts local franchise requirements. California courts have long recognized that the statewide rights -of -way franchise in section 7901 confers vested rights in telephone companies, which are not subject to, and are superior to, any grant by a subordinate legislative body.63 As the Supreme Court recognized in City of Petaluma, once a carrier obtains franchise rights from the state, local municipalities cannot impose further franchise requirements.64 The courts also have recognized that a carrier has an unfettered state franchise right in lines purchased from predecessors and constructed under local franchises: [T]elephone corporations are granted the right and privilege to use the public highways over which to construct and operate lines of telephone wires, free from any grant made by subordinate legislative bodies, and unrestricted by the provisions of the Broughton Act, and ... their right so to do applies not only to lines constructed by them, but to lines in place which they acquire by purchase from private individuals, constructed under franchises granted by boards of supervisors.65 The California Attorney General has also recognized that the state franchise granted in section 7901 requires no grant by a subordinate legislative body, and that lower jurisdictions have no power to grant or refuse franchises for use of streets, highways, and public places for construction, maintenance, and operation of telephone facilities.66 In light of these well settled principals, and the intentionally -broad nature of the state franchise, no lower jurisdiction, whether county, city or otherwise, may require an additional franchise as a prerequisite to Sprint's developing telecommunications facilities in public rights -of -way. b. Even within borders of cities holding freeholders' charters as of 1905, telephone company access to public rights -of -way is a state affair not subject to local franchise requirements. Cities that held freeholders' charters in 1905 might conclude, based on outdated law, that local franchises may be required for access to rights -of -way within the 1905 boundaries of the city. This concept was often discussed in cases predating 1959. However, the California Supreme Court addressed that issue in 1959 and recognized that the state's interest in granting a statewide 63 City of Petaluma v. Pacific TeL & TeL Co., 44 Cal. 2d 284, 287 (1955). 64 Id. at 288. 65 County of Inyo v. Hess, 53 Cal. App. 415, 425 (1921). 66 46 Ops. Cal. Atty. Gen. No. 64 -323, p. 22 -23 (1965). NOSSAMAN, GUTHNEP, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 14 franchise supersedes and preempts local concerns.67 The Supreme Court held that "the construction and maintenance of telephone lines in the streets and other public places within the city is today a matter of state concern and not a municipal affair. "68 The Court recognized that, historically, freeholders' charter cities maintained autonomy from certain general laws as to municipal affairs. The Court noted that "[a]s to matters which are of state concern, however, freeholders' charter cities remain subject to and controlled by general state laws regardless of the provisions of their charters. "69 The Court recognized that the constitutional concept of municipal affairs versus state affairs must change over time and that local concerns may evolve into state concems.70 In light of these principles, the Court squarely recognized that development of telephone lines, even within historical city borders, had become a state concern and cities were powerless to restrict such construction regardless of the status of their charters: Applying the above stated rules of law to the facts of the present case, it is apparent that because of the interest of the people throughout the state in the existence of telephone lines in the streets in the city, the right and obligation to construct and maintain telephone lines has become a matter of state concern. For this reason the city cannot today exclude telephone lines from the streets upon the theory that "it is a municipal affair. When the Legislature in 1905 reenacted Civil Code section 536 to extend to telephone corporations the offer of a state franchise for the construction and maintenance of communication lines, it intended that the offer, like the same offer previously made to telegraph corporations, extend and be accepted in its entirety throughout the state.71 Since the City of San Francisco decision in 1959, neither the Supreme Court nor any lower state court has again addressed the issue decided in that case. Thus, although the earlier opinions which established the pervasive effect of the state franchise are peppered with language excluding areas within 1905 boundaries of freeholders' charter cities, those exceptions have been rendered obsolete by the Supreme Court, and no local jurisdiction may require Sprint to obtain a local franchise as a prerequisite to building telephone facilities in public rights -of -way. 4. Sprint's status as a utility or nonutility is irrelevant to Sprint's access to public rights -of -way. 67 pacifrc Tel. & Tel. Co., 51 Cal. 2d at 768 -774. 681d. at 768. 69 Id. at 769 (citing Cal. Const., art. XI, § 6) (other citations omitted). 701d. at 771. 71 Id. at 774 (citations omitted). NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 15 Sprint's status as a utility or non - utility is irrelevant to right -of -way issues. For purposes of the right -of -way issues, the critical question is whether Sprint is a telephone corporation. Section 7901 of the Public Utilities Code, previously discussed in detail, does not include any reference to "utilities. "72 Instead, section 7901 is limited to "telegraph and telephone corporations. 1173 Thus, the issue that determines Sprint's access to rights -of -way is whether Sprint is a telephone corporation, not whether it is a utility, and the statutory "telephone corporation" includes Sprint.74 5. Municipal requirements to obtain business licenses are preempted by the state grant of a right -of -way franchise to all telephone companies. A business license is a grant of permission to do a particular thing, exercise a certain privilege, carry on a particular business, or pursue a given occupation, and is usually evidenced by a certificate showing that the permission was granted by the proper authority.75 Clearly, a local jurisdiction is not the proper authority to license Sprint to exercise the right of erecting wireless facilities in the right of way. Licenses apply to privileges, not rights, and Sprint has a vested right to build telephone facilities in the right of way, not a privilege.76 Moreover, under the Telecommunications Act, a city may not use the imposition of a business license requirement to prohibit or have the effect of prohibiting Sprint from providing telecommunications services.77 California Public Utilities Code section 7901 further restricts local jurisdictions from requiring Sprint to obtain a business license.78 A local government may only exercise reasonable control as to the time, place and manner in which Sprint accesses rights - of- way.79 Furthermore, a city may not use a business license requirement to avoid the preemption of its ability to require local franchises.80 72 See Cal. Pub. Util. Code § 7109. 73 Id. 74 See Cal. Pub. Util. Code § 234(a) (defining "telephone corporation" to include "any corporation or person owning, controlling, operating or managing any telephone line for compensation within the state "). 75 See City & County ojSan Francisco v. Pacific Tel. & Tel. Co., 166 Cal. 244,249 (1913); Garcia, 3 Cal. App. 3d at 324. 76 See Postal Tel. -Cable Co. v. Railroads Comm'n of Cal., 200 cal. 463, 472 (1927); County of Los Angeles, 32 Cal. 2d at 385. 77 See 47 U.S.C. § 253(a). 78 See Cal. Pub. Util. Code § 7901. 79 City of Berkeley, 146 F. Supp. at 1101. 80 See id. (noting that under Public Utilities Code section 7901 local governments are prohibited from requiring local franchises). NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 16 The California Supreme Court has made it clear that the provision of telephone service is a statewide matter.81 Thus, local governments may not require Sprint to obtain business licenses as a prerequisite to use of the public rights -of -way, unless the license is truly a mere formality and a reasonable control of the time, place and manner in which Sprint accesses the rights -of -way. Similar ministerial formalities usually are labeled "permits." 6. Wireless telephone service providers are not subject to requirements of issuance of a Certificate of Public Convenience and Necessity. The Telecommunications Act of 1996 preempts state regulation of rate and market entry for all commercial mobile radio service ( "CMRS ") providers.82 The purpose of this preemption was to foster rapid deployment of CMRS technology nationwide by the establishment of "a federal regulatory framework to govern the offering of all commercial mobile services. "83 Because the Public Utilities Commission's role with respect to wireless carriers differs from its regulation of public utilities, confusion results with regard to certificates of public convenience and necessity. With respect to most public utilities, the regulatory mechanism by which utilities are granted market entry is a CPCN issued by the PUC.84 However, the preemption of state regulation of market entry by wireless communications services not only renders the discretionary approval process by the PUC obsolete as to such carriers; it prohibits the process.85 With regard to wireless service providers, the PUC has recognized that it lacks discretion to regulate entry into the California market. Therefore, as to such carriers, the PUC has eliminated the requirement for a discretionary certificate of public convenience and necessity and broadly recognized the public convenience and necessity of all federally- licensed CMRS providers entering the California markets. As the PUC has stated in its findings of law accompanying its 1996 decision regarding state regulation of wireless services: The public interest will served by the rapid development of competition in the CMRS field. Accordingly ... the public convenience and necessity will require market entry of all CMRS providers licensed by the FCC.86 In place of the discretionary market entry process which the PUC applies to public utilities, the PUC has implemented a wireless identification registration process for wireless telecommunications carriers. This process is ministerial and, upon confirmation of a carrier's 81 Pacific Tel. & Tel. Co., 51 Cal. 2d at 774. 82 47 U.S.C. § 332(cx3XA). 83 Omnibus Reconciliation Act of 1993, 107 Stat. 312; HR Conf. Rep. No. 103 -213, 103 Cong., First Sess. 490 (1993); see also HR Rep. No. 103 -111, 103 Cong., First Sess. 260 (1993) (stating congress's intent to "foster the growth and development of mobile services that, by their nature operate without regard to state lines as an integral part of the national telecommunications infrastructure "). 84 See Cal. Pub. Util. Code § 1001. 851n re Mobile Tel. Services & Wireless Communications, 62 C.P.U.C. 2d 3 (1995). 86 Id. at 6. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Joe Montez August 30, 2001 Page 17 status as an FCC licensee, the PUC simply issues the carrier a wireless identification registration.87 Because the PUC has recognized the public convenience and necessity of all FCC - licensed wireless carriers and issues ministerial wireless identification registrations to such carriers once their FCC - licensed status is confirmed, the WIR is the functional equivalent of a CPCN and wireless carriers need not present a CPCN to establish their licensed status within the state of California or their access to the state -wide public rights -of -way franchise. C. Conclusion In accordance with the foregoing, we believe Sprint has the right to place its communications facilities within the City's public rights -of -way and that such right is beyond the discretionary regulatory authority of the City. We would, however, appreciate the opportunity to meet with you to discuss the matter as Sprint continues to build its communications system. We will contact you within the next few days to arrange a meeting. Thank you for your attention to this matter. L Sin r y, �� .7t�L� of NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP GWS/laj 87 Id. at 16.