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Home My WebLink AboutORD 471 2019 0417 ORDINANCE NO. 471 AN URGENCY ORDINANCE OF THE CITY OF MOORPARK, CALIFORNIA, REGARDING SMALL WIRELESS FACILITIES, AMENDING TITLE 15 OF THE MOORPARK MUNICIPAL CODE REGARDING THE SAME, DECLARING THE URGENCY AND IMMEDIATE EFFECTIVENESS THEREOF PURSUANT TO GOVERNMENT CODE SECTIONS 36934 AND 36937, AND APPROVING CALIFORNIA ENVIRONMENTAL QUALITY ACT EXEMPTIONS IN CONNECTION THEREWITH WHEREAS, on September 26, 2018, the Federal Communications Commission ("FCC") adopted its Declaratory Ruling and Third Report and Order ("Report and Order") relating to placement of small wireless facilities in public rights-of-way, and the Report and Order went into effect on January 14, 2019; and WHEREAS, the Report and Order purports to give providers of wireless services rights to utilize public rights of way and to attach so-called "small wireless facilities" to public infrastructure including infrastructure of the City of Moorpark, subject to payment of "presumed reasonable", non-recurring and recurring fees, and as such, the ability of local agencies to regulate use of their rights-of-way is substantially limited under the Report and Order; and WHEREAS, notwithstanding the limitations imposed on local regulation of small wireless facilities in public rights-of-way by the Report and Order, local agencies retain the ability to regulate the aesthetics of small wireless facilities, including location, compatibility with surrounding facilities, spacing, and overall size of the facility, provided the aesthetic requirements are: (i) "reasonable", i.e., "technically feasible and reasonably directed to avoiding or remedying the intangible public harm or unsightly or out-of-character deployments"; (ii) "objective", i.e., they "incorporate clearly-defined and ascertainable standards, applied in a principled manner"; are (iii) published in advance. Regulations that do not satisfy the foregoing requirements are likely to be subject to invalidation, as are any other regulations that "materially inhibit wireless service", (e.g., overly restrictive spacing requirements); and WHEREAS, local agencies also retain the ability to regulate small wireless facilities in the public rights-of-way in order to more fully protect the public health and safety, ensure continued quality of telecommunications services, and safeguard the rights of consumers; and WHEREAS, it is the intent of the City Council in adopting this Ordinance to supersede regulations of the City that conflict with the Report and Order, and to establish consistent regulations governing deployment of small wireless facilities in order to more fully protect the public health, safety, and welfare, and the City Council declares that it adopts this Ordinance with the understanding that the City expressly reserves all rights to re-enact and/or establish new regulations consistent with State and Ordinance No. 471 Page 2 federal law as it existed prior to adoption of the Report and Order in the event the Report and Order is invalidated, modified, or limited in any way. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK ORDAINS AS FOLLOWS: SECTION 1. Findings. The City Council finds that each fact set forth in the preceding recitals are true and correct. SECTION 2. A new Chapter 15.44 of Title 15 (Building and Construction) is hereby added to the Moorpark Municipal Code to read as follows: "CHAPTER 15.44 SMALL WIRELESS FACILITIES Sections: 15.44.010 Citywide Policy Notwithstanding any other provision of the Municipal Code to the contrary, all small wireless facilities as defined by the FCC in 47 C.F.R. § 1.60002(1), as may be amended or superseded, shall be subject only to and must comply with the "Citywide Policy Regarding Permitting Requirements And Development Standards For Small Wireless Facilities" adopted by City Council resolution. No person shall construct, install, attach, operate, collocate, modify, reconstruct, relocate, remove, or otherwise deploy any small wireless facility in violation of such policy." SECTION 3. CEQA. The City of Moorpark has determined that the adoption of this Ordinance is exempt from review under the California Environmental Quality Act ("CEQA") (California Public Resources Code Section 21000, et seq.), pursuant to State CEQA Regulation §15061(b)(3) (14 Cal. Code Regs. § 15061(b)(3)) covering activities with no possibility of having a significant effect on the environment. In addition, the City of Moorpark has determined that the ordinance is categorically exempt pursuant to Section 15301 of the CEQA Regulations applicable to minor alterations of existing governmental and/or utility-owned structures. SECTION 4. Future Modifications. The City Council finds and declares that it is adopting this Ordinance in order to more fully protect and preserve the public health and safety with respect to City rights-of-way in light of the adoption of the Report and Order. Notice is hereby given to any and all wireless providers obtaining a permit pursuant to the Moorpark Municipal Code as amended herein, that the City expressly reserves any and all rights it possessed prior to the adoption of the Report and Order concerning its authority to regulate its public rights-of-way. In the event the Report and Order is invalidated, modified, or limited in any way, the City Council reserves the right, subject Ordinance No. 471 Page 3 to reasonable notice and due process, to modify the terms and conditions applicable to any permit issued hereunder including, but not limited to, the term, fees charged, and scope of any future wireless deployments within the City's rights-of-way. SECTION 5. Urgency. City Council finds that, as a result of the regulations adopted by the Federal Communications Commission effective as of January 14, 2019, as more fully described in the Section 1 of this Ordinance, some City regulations governing third party use of its public rights-of-way or private property for telecommunication antennas may be invalidated which will result in an absence of standards designed to protect the public. Therefore, unless this Ordinance is effective and its regulations are immediately put in place, the public health, safety and welfare will be at risk. Therefore the immediate preservation of the public health, safety and welfare requires that this Ordinance be enacted as an urgency ordinance pursuant to Government Code Section 36937(b) and that it take effect immediately upon adoption pursuant to Government Code Section 36934, and its urgency is hereby declared. SECTION 6. Severability. If any sections, subsections, sentence, clause, or phrase of the Chapter adopted by this Ordinance is for any reason held to be invalid or unconstitutional by the decision or legislation of any court of competent jurisdiction, or by reason of preemptive legislation, such decision or legislation shall not affect the validity of the remaining portions of the Chapter. The City Council declares that it would have passed this Ordinance, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that one or more of the sections, subsections, sentences, clauses, or phrases thereof is declared invalid or unconstitutional. SECTION 7. Effective Date. Based upon the findings contained in Section 5 of this Ordinance, this Ordinance shall take effect immediately upon adoption pursuant to Government Code Sections 36937 (b) and 36934. SECTION 8. Publication and Certification. The City Clerk shall certify the adoption of this Ordinance and cause it to be published in the manner required by law. APPROVED AND ADOPTED this 17th day of April, 2019. • Ja ice S. Parvin, Mayor ATTEST: r ti09 aig/alkok----6,04(dr0r4adLt 1011010,1">44 Deborah Traffenstedt 4 . Assistant City Manager/City Clerk a� w-� 0,9q/VD .00' Ordinance No. 471 Page 4 STATE OF CALIFORNIA ) COUNTY OF VENTURA ) ss. CITY OF MOORPARK ) I, Deborah Traffenstedt, Assistant City Manager/City Clerk of the City of Moorpark, California, do hereby certify under penalty of perjury that the foregoing Ordinance No.471 was adopted by the City Council of the City of Moorpark at a regular meeting held on the 17th day of April, 2019 and that the same was adopted by the following vote: AYES: Councilmembers Enegren, Mikos, Pollock, Simons, and Mayor Parvin NOES: None ABSENT: None ABSTAIN: None WITNESS my hand and the official seal of said City this 17th day of April, 2019. Deborah Traffensted Assistant City Manager/City Clerk (seal) . Ap C' Qq AWP 1: bsii�i► _14. � JULV