O2118
f:\atty\muni\laws\ces\wireless moratorium
City Council Meeting February 24,2004 Santa Monica, California
ORDINANCE NUMBER.lll8. (CCS)
(City Council Series)
AN EMERGENCY INTERIM ORDINANCE OF THE CITY COUNCIL
OF THE CITY OF SANTA MONICA ESTABLISHING
A TEMPORARY MORATORIUM ON INSTALLATION OF WIRELESS
COMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT OF WAY; DECLARING THE
PRESENCE OF AN EMERGENCY
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS
FOLLOWS:
SECTION 1. FindinQs and Purpose. The City Council finds and declares:
(a) Santa Monica is a small city consisting of just eight square miles. In that
small space, the City teems with activity. It is home to 90,000 residents; and its population
density, 11,200 persons per square mile, is the highest among coastal communities in Los
Angeles County. Santa Monica is also the workplace for approximately 155,000 workers
and a destination for as many as 400,000 daily visitors. Thus, extreme density complicates
planning efforts and makes preservation of the quality of Ufe a difficult challenge.
(b) Moreover, planning difficulties are exacerbated by the fact that the City is
fully built-out and has been so for decades. As of November 1995, there were only sixty-
two (62) vacant residential parcels outof approximately 6.132 multi.-family zoned parcels in
the entire City. Since then,. even this limited number of vacant parcels has shrunk. Thus,
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planning flexibility is limited by the reality that most development in the City means change
-- not expansion -.. and virtually any new project ~rconstruction replaces an existing
structure or improvement.
(c) The City owns, operates or manages the public rights of way (PROW)
traversing throughout the City. These PROW resources are limited and given the City's
large density and built out nature, it is likely that the limited area and boundaries of this
precious and necessary resource will not increase over time.
(d) PROWs have historically been reserved for City-owned utilities, such as
sewer, water, street lighting, traffic signals, and storm drains; gas, electric and phone lines
as well as franchised cable television.
(e) The City's PROWs have become increasingly crowded with City-owned
utilities, gas, and electrical lines, as well as telecommunication facilities related to cable
television.
(f) While historically wireless companies have elected to locate on private
property subject to the City's detailed zoning regulations, very recently there has been an
apparent industry shift towards locating on PROW.
(g) The demand for wireless technology has skyrocketed since the Federal
government adopted the 1996 Telecommunications Act. This law was enacted to
encourage competition among various telecommunication providers.
(h) According to the Cellular Telecommunications & Internet Association, since
the 1996 Telecommunications Act, the number of wireless subscribers in the nation has
increased from approximately 38 million to over 148 million.
(i) In order to accommodate the demand. the number of cell sites nationwide
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has increased from 24,802 in 1996 to 147,719 in 2003.
0) In addition to the increased usage of wireless technology, the equipment
technology is also evolving at a rapid rate. Technology such as micro cells and repeaters
now permit downsized installations which can be incorporated into existing infrastructure so
as to significantly camouflage its placement.
(k) As a result of these changes in federal law and the quick expansion of the
telecommunications field, the City has begun receiving increased requests for permits to
excavate in the PROW.
(I) During the time period of 1996 to December 2002, the City received only one
application for a wireless installation in the PROW. In 2003, the City received multiple
applications to locate wireless facilities in the PROW. In addition, the City has begun
receiving inquiries about additional facilities, and expects to receive additional applications
in the next few months.
(m) The current municipal code sections related to excavations in the public right
of way were last modified by Resolution 1187 (CCS)on November 12,1980, well before
the changes in federal law and the shift in the industry's facility location policy. As such,
the City's current Code does not adequately address the installation of wireless facfUties in
the PROW.
(n) The changes in federal law, the recent influx of applications by wireless
companies to locate in the PROW, the continued demand for the space above and below
the PROW by other utility providers as well as the needs of vehicular/pedestrian access
and private businesses and other pUblic institutions has made it necessary for the City to
take a comprehensive look at how to manage the PROW.
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(0) Accordingly, there is a need to update the Code to accommodate wireless
and other newtechnologies,as well as establish comprehensive time, place and manner
standards for the location and design of all utilities in the right of way.
(p) Any management of the PROW will require a careful study of the following
overarching policies:
. Preserving the integrity and aesthetic quality of the City's PROW;
.
. Addressing the long-term management of the PROW;
. Addressing concerns about Public Works Projects encountering unknown utilities in
the PROW during construction;
. Ensuring that the manner in which the PROW is acceSsed minimizes disruption to
the community;
. Ensuring utilities (including telecommunication and wireless companies)
competitively neutral and non-discriminatory access to the PROW; and
. Ensuring compliance with State and Federal laws allowing access to the PROW,
(q) Exactly how best to accomplish these goals is a complex question which will
require detailed stUdy and further public and industry input.
(r) The City has a very limited number of potential sites which would be
acceptable for the installation of wireless communication facilities in that the geographic
area of the PROW is limited and already contains a variety of existing infrastructure,
(s) In addition, while wireless companies assert that they have legal authority to
locate facilities in the PROW pursuant to Public Utilities Code Section 7901, the law is
currently unsettled,
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(t) In addition, the residents have expressed significant concern relating to the
location of wireless communication fadlities within the City. These concerns relate, among
other things, to the aesthetic effects of such facilities on neighboring properties and the
community as a whole, and the appropriate locations for these facilities.
(u) The residents have also expressed a desire that the City receive adequate
wireless telecommunication services provided that the facilities are designed and located
to minimize aesthetic and other concerns.
(v) Thus, the City requires time to study, among other things, how the City's
overarching management right of way policies apply to wireless technology; whether
wireless utilities have current legal authority to locate in the PROW and., regardless of the
lack of such authority, whether it nevertheless serves the public interest to permit such
location in the PROW; the compatibility of wireless technology with existing right of way
improvements; the potential interference such technology would have with existing right of
way improvements; mitigations, such as co-location, which can reduce aesthetic impacts;
and appropriate design and location standards for such facilities,
(w) Processing applications for wireless communications facilities without
studying the issues outlined above may result in the inability to allow adequate sites for
other City-owned utilities and other infrastructure, private utilities, cable television providers
and other competing wireless providers, Beneficial services may not be able to be provided
without careful allocation of existing sites.
(x) The City must address the very difficult question of how to balance these
competing demands and satisfy the legal requirements of emerging federal and state
telecommunications law as it applies to wireless facilities
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(y) For the reasons described above, the City Council finds that there is a current
and immediate threat to the public health, safety or welfare and that a moratorium on new
wireless telecommunications facilities in the PROW is necessary to ensure the
comprehensive management and preservation of the PROW. If urgent action is not taken,
irreversible development activity will begin thereby committing scarce PROW resources to
development that is not in the best interests of the residents of the City. The approval of
new permits related to wireless installations pending the City'S completion of its review of
its PROW management policies would result in a threat to the public health, safety, or
welfare since these changes threaten the quality of residents' lives and the use of the
PROW. Consequently, this ordinance establishes a temporary six month moratorium on
this type of use up to and including August 24,2004 to provide the City sufficient time to
further evaluate and undertake appropriate actions to address these impacts.
(z) By enacting this moratorium, the Council believes it will have sufficient time to
develop reasonable regulations regarding the placement, construction, and modification of
personal wireless services facilities. The City does not intend the moratorium to prohibit or
have the .effect of prohibiting the provision of personal wireless services; rather, it is a
short-term suspension on new facilities until appropriate regulations can be developed.
The City fully recognizes its responsibilities under the Telecommunications Act of 1996.
The City believes, however, that full and impartial compliance with the Act is best
accomplished through thoughtful analysis and subsequent regulatory guidance and that
this approach is in the best interests of the City and its residents as well as the
telecommunications industry.
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SECTION 2. Applicability.
The provisions of this Ordinance shall apply to all facilities on, below, or above a
city-owned, operated or controlled street or alley public right of way and the sidewalk
and/or parkway adjacent thereto ("PROW") used for or associated with the transmission or
reception of wireles.s communications services (including such as personal communication,
cellular and paging) and including, without limitation, antennae, masts, poles, towers,
conduit, cable, structures, buildings, additions to existing antennae, masts poles towers,
structures or buildings (the "Facilities"). Such Facilities shall be subject to all the provisions
as set forth below, unless otherwise specified in this ordinance, notwithstanding other
regulations of the City.
SECTION 3. TemporarY Moratorium.
(a) Moratorium Applies to All Public RiQht of Way Within the City. Within all
areas situated in the public right of way ("PROW"), there shall be a temporary moratorium
in effect, commencing on the effective date of this Ordinance, prohibiting the installation of
any and all Facilities described above in Section 2 and/or the issuance of permits for
installation of such Facilities, except those descried in Section 4.
(b) Applicant May Elect to have City staff Continue to Accept and Process
Applications Durinq Moratorium. This temporary moratorium is not intended to affect the
acceptance and/or processing of permit applications for any and all Facilities described
above in Section 2 by City staff: it is intended to prohibit only the issuance of permits for
such Facilities. City staff shall continue to accept such permit applications received after
the effective date of this Ordinance. At the applicant's request, the City shall continue to
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process such an application during the term of the moratorium; however, any new
standards for such Facilities and the permitting thereof which are adopted during the
moratorium and are effective at the expiration of the moratorium shall nevertheless apply to
such an application. To the extent applicable., anytime limits relative to the processing and
action upon permit applications for any and all Facilities described above in Section 2 are
tolled during the term of the moratorium.
SECTION 4. Exceptions.
The provisions of this Ordinance shall not apply to:
(a) Government and Emergency Faculties. Existing Government owned
and operated communications Facilities and/or existing emergency medical care provider
owned and operated communications Facilities, or new Facilities in the same location as
such existing Facilities, which are required to repair, replace, maintain or enhance such
existing Facilities, providing such new Facilities are to be used primarily to protect public
health, safety and welfare, all as determined by the Director of Environmental and Public
Works.
(b) Facilities Exempted Under Fed.eral Law. Any antenna Facilities excepted
from this ordinance by federal law.
SECTION 5. This ordinance is declared to be an urgency measure adopted
pursuant to the provision of Section 615 of the Santa Monica City Charter. As set forth in
the findings above, this ordinance is necess.ary for preserving the pUblic peace, health,
safety, and welfare.
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SECT10N 6. This ordinance shall be of no further force and effect six months
from the date of its adoption, unless prior to that date, after a public hearing, the City
Council, by majority vote, extends this interim ordinance.
SECTION 7. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary to
effect the provisions of this Ordinance.
SECTION 8, If any section, subsection, 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 each and every section, sUbsection,sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether any portion of the ordinance
would be subsequently declared invalid or unconstitutional.
SECTION 9. The Mayor shall sign and the City Clerk shall attest to the passage of
this Ordinance. The City Clerk shall cause the same to be published once in the official
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newspaper within 15 days after its adoption. This Ordinance shall become effective upon
its adoption.
APPROVED AS TO FORM:
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Approved and adopted this 24th day of February, 2004.
~
Richard Bloom, Mayor
State of California )
County of Los Angeles) S$.
City of Santa Monica )
I, Maria M. Stewart, City Clerk of the City of Santa Monica, do hereby certify that the
foregoing Ordinance No. 2118 (CCS) had it's introduction and adoption at the Santa
Monica City Council meeting held on February 24, 2004, by the following vote:
Ayes: Council members: Mayor Bloom, Mayor Pro Tem McKeown, O'Connor,
Holbrook, Katz
Noes: Council members: None
Abstain: Council members: None
Absent: Council members: Feinstein, Genser
ATTEST:
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Matia M. Stewart, Ci~ Clerk
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