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HomeMy WebLinkAbout14 - Wireless Telecommunications Ordinance PA2012-057 - CorrespondenceJanuary 8, 2014 Iwa Mr. James Campbell Principal Planner Community Development Department 100 Civic Center Drive Newport Beach, CA 92660 Agenda Item No. 14 Public Comments January 14, 2014 141, 1 ------------ In Reference To: Revised Wireless Telecommunications Facilities Ordinance Dear Mr. Campbell: CalWA, the California Wireless Association appreciates receiving the City of Newport Beach revised Wireless Telecommunications Facilities Ordinance (WTF) dated December 2013. We also received the e-mail notice that there will be the first City Council meeting on the Planning Commission's recommended revisions to the City's WTO on January 14th. CalWA and PCIA, the Wireless Industry Association, submitted a letter and detailed comments in mid -2012 on the draft of the City's Wireless Telecommunications Facilities (WTF) Ordinance. We are pleased that many of our comments and suggestions have been incorporated into the revised ordinance, and that the new draft now recognizes Section 6409 of the Middle Class Tax Relief and Jobs Creation Act of 2012 for the collocation, removal and replacement of equipment at existing wireless facilities. We also appreciate the careful consideration given by the Newport Beach Planning Commission n the four public hearings and work sessions where potential changes to the ordinance were discussed at length. However, even with the recent modifications to the proposed WTF ordinance, further changes could better facilitate the responsible deployment of wireless infrastructure improvements needed to adequately serve the citizens of Newport Beach. The PCIA/CaIWA letter dated July 19. 2012 (attached) clearly sets forth the continuing need for improved wireless infrastructure. Wireless networks must adapt to dramatic capacity demands due to an 1,800 percent increase in traffic over the last four years and a projected growth of 18 times current levels of mobile data traffic over the next five years. Mobile internet users are projected to outnumber wireline users in the near future. Without ongoing improvements to the City's wireless backbone infrastructure, dependable wireless services cannot be delivered to the citizens of Newport Beach. The following provides CalWA's comments on the current December 2013 draft of Chapter 20.49 of City Staffs proposed Wireless Telecommunications Facilities Ordinance. IWG Section 20.49.010 A. - Purpose This initial statement should acknowledge the important role wireless infrastructure, mobile communication and internet access now plays in Newport Beach related to the City's economy, job creation, productivity and public safety. It should also acknowledge that wireless infrastructure is a "utility" as defined by California's Constitution, and should be permitted under similar requirements for other utility infrastructure improvements. Section 20.49.30 - Definitions, C. Antenna Classes The antenna classes in the Planning Commission's finaldraft have been revised to remove "Collocations ", formerly a Class 2 Facility. This has been made in compliance with federal law, and will help facilitate anticipated 4th Generation /LTE upgrades at existing sites within the City. However, additional sites will be needed, especially in high traffic areas to avoid capacity issues associated with rapidly growing mobile internet data transmissions. DAS systems and "Small Cells" located within public rights of way are needed to provide coverage and capacity in residential neighborhoods and in certain commercial areas. Small Cells are also needed in "hot spot" - high traffic areas, primarily for capacity reasons. CalWA suggests that smaller sites within public rights -of -way be allowed through an administrative Encroachment Permit and /or Zoning Clearance process if the project demonstrates compliance with the ordinances' design and screening standards. Section 20.49.050 - Location Preferences, B. Prohibited Locations The City should consider allowing wireless infrastructure in all zones in the City. The majority of Newport Beach residents now use their wireless smart phones, tablets and lap tops as their primary communication and internet access devices. They want these devices to work in their homes as well as where they work, and while they are traveling. We all want them to work everywhere, especially in an emergency situation. However, CalWA understands that residents don't want wireless facilities that result in adverse aesthetic impacts that affect views. CalWA suggests that wireless infrastructure, like wireline telephone, electricity and natural gas utility infrastructure be allowed in all residential zones through a Minor Use Permit or Conditional Use Permit process if the project demonstrates compliance with the ordinances' design and screening standards. IWG Section 20.49.050 - General Development and Design Standards A. General Criteria CalWA supports the City in its efforts to minimize visual impacts of providing wireless infrastructure, and the use of reasonable aesthetic criteria to be used in evaluating wireless applications. However, CalWA would like City Staff and City Council to keep in mind the important "utility" role that wireless infrastructure plays in Newport Beach. No other utility infrastructure must adhere to the standards and criteria set forth in this ordinance. We respectfully request the City begin to look at wireless improvements in the same manner as other utility providers. F. Screening Standards, 6a.(6) and 6.b.(2), Support Equipment Undergrounding support equipment on private property and within public rights -of -way is a significant issue for wireless providers, especially in Newport Beach because of very high groundwater levels along the coast and in other more elevated areas of the City. Major rainstorms and isolated thunderstorms in the past have resulted in significant damage to support equipment, especially where flush -to -grade vents are required. This has resulted in wireless carrier losses of millions of dollars over the years and the loss of coverage and capacity in local networks during major rainstorms, which adversely affects public safety during emergency situations. The revised wireless ordinance does provide reasonable flexibility for above grade support equipment. However, we are requesting above grade vents for telecom underground vaults be allowed to be 36 inches above the finished grade; not 24 inches. The wireless providers can meet the screening requirements set forth in Section 20.49.050 6.b.(2), and will paint or coat above grade equipment to be visually compatible with its surroundings, however, the wireless providers would like to avoid any requirements for additional landscape screening because of the water infrastructure and maintenance requirements. Conclusion Reliable wireless communication is no longer a luxury. Wireless facilities provide the basic infrastructure for telecommunication /broadband accessibility that allows the citizens of Newport Beach high -speed Internet access. The City currently has a unique opportunity to facilitate expanded and improved wireless services to its residents, businesses and visitors by amending its WTF Ordinance in consideration of CalWA's suggested revisions. CalWA greatly appreciates the Newport Beach Planning Commission's careful consideration of our and other wireless providers input into the WTF, and their recommended changes to the City's wireless ordinance. It is a major step forward from your current ordinance that CalWA supports. We appreciate your consideration and IWG support to further our mutual goal of implementing and deploying responsible and timely wireless infrastructure improvements to serve the City of Newport Beach. Respectfully submitted, W. Dean Brown California Wireless Association Board of Directors Co- Chair, Regulatory Committee 714 - 328 -6313 wdbrown@planningconsortium.com CC: PCIA - The Wireless Infrastructure Association 901 North Washington Street, Suite 600 Alexandria, Virginia 22314 El PCIA July 19, 2012 VIA ELECTRONIC MAIL Newport Beach Planning Commission c/o Janet Johnson Brown, Associate Planner City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 jbrown @newportbeachca.gov Re: Proposed Amendments to Wireless Telecommunications Facilities Ordinance Dear Ms. Brown, 'cal wa PCIA —The Wireless Infrastructure Association ( "PCIA" )l and the California Wireless Association ( "CalWA ")2 writes to provide comment on the City of Newport Beach's proposed amendment to the Newport Beach Municipal Code to update regulations regarding wireless telecommunications facilities in light of the scheduled public hearing on the matter before the Planning Commission on Thursday, July 19, 2012. Attached please find the proposed amendments marked with comments. PCIA and CalWA respectfully request that Planning Commission defer action on this item until the industry has had an opportunity to sit down with staff and discuss the concerns reflected within this letter and in the attached mark -up. PCIA and CalWA applaud the City of Newport Beach for recognizing that there have been numerous changes in Federal and State law regarding local regulation of wireless facilities, as well as a tremendous increase in the demand for wireless services that required the industry to change how it responds and keeps up with demand from its subscribers, especially in sophisticated communities like Newport Beach. We encourage the City to craft an ordinance that enables logical and intelligent deployment with an objective set of standards that comply with state and federal law and allows the timely provision of quality wireless service. To this end, in order to ensure that Newport Beach's efforts to modernize its wireless ordinance are as comprehensive as possible, PCIA and CalWA offer the attached mark -up of the draft amendments. 'PCIA is the national trade association representing the wireless infrastructure industry. PCIA's members develop, own, manage, and operate towers, rooftop wireless sites, and other facilities for the provision of all types of wireless, broadcasting and telecommunications services. With a mandate to facilitate the deployment of wireless infrastructure, PCIA and its members partner with communities across the nation to effect solutions for wireless infrastructure deployment that are responsive to the unique sensitivities and concerns of these communities. 'CaIWA is a non -profit organization made up of volunteers who work in the wireless /telecommunications industry throughout California. Its goal is to raise awareness about the benefits of and to promote the wireless industry, to educate the public and political leaders on issues of importance to the wireless industry, and to cultivate working relationships within and between the industry, the public and political leaders. PCIA 4 calwa Despite the importance of wireless services and its potential for job creation, local review of the placement of wireless facilities remains a persistent barrier to the deployment of wireless infrastructure. For example, the proposed amendments to Newport Beach's Municipal Code could better facilitate the deployment of wireless infrastructure in order to bring wireless service to Newport Beach's residents. PCIA and CalWA hope to work together with the Planning Commission to find a solution for wireless infrastructure deployment that is responsive to the City of Newport Beach's needs and concerns. For this reason, PCIA and CalWA urge that Planning Commission defer action on this item to allow time to consider and discuss the industry's concerns. The Need for Wireless Infrastructure Wireless services, from basic voice communication to mobile broadband, enable communication, productivity, mobility, and public safety. Wireless infrastructure is the backbone of wireless networks; without it, wireless services cannot be delivered to users. Wireless infrastructure enables use of spectrum by providing the vital link between the end -user and the network. The strategic deployment of wireless infrastructure improves the efficient use of limited spectrum resources, which in turn improves the performance of wireless services. Wireless providers are currently undertaking a multi- faceted effort to deliver next - generation wireless services, such as 4G LTE, in addition to ensuring that current and next - generation networks have the capacity to handle the surge in traffic that comes with the increased adoption rates of smartphones, tablets and other data devices. Wireless networks must adapt to growing capacity demands due to an 1,800 percent increase in traffic on U.S. wireless networks in the last four years and a projected growth of eighteen times current levels of mobile data traffic in the next five years.4 Mobile Internet users are projected to outnumber wireline Internet users by 2015, when a majority of Americans will utilize a wireless device as their primary internet access tools This will result in two billion networked mobile devices by 2015.6 The need for rapid deployment extends beyond mere consumer convenience. More than 70 percent of all emergency calls are placed using a wireless device .7 The ability to access fire, rescue and police services may be significantly hindered without wireless infrastructure, especially for those relying on wireless as their sole form of voice communications. As noted by the Federal Communications Commission ( "FCC "), [T]he deployment of facilities without unreasonable delay is vital to promote public safety, including the availability of wireless 911, throughout the nation. The importance of wireless communications for public safety is critical, especially as consumers 'Mobile Future, 2011 Mobile Year In Review (Dec. 2011), available at http://mobilefuture.org/page/- /images /2011- MYIR.pdf. Quentin Hardy, The Explosion of Mobile Video, N.Y. Times, Feb. 14, 2012, available at http : //bits.blogs.nytimes.com/2012 /02/14 /the- explosion -of- mobile- video /. s Hayley Tsukayama, IDC: Mobile Internet Users to Outnumber Wireline Users by 2015, Washington Post, Sept. 12, 2011, available at http : / /www.washingtonpost.com/blogs /post - tech/post/idc- mobile- intemet- users -to- outnumber- wireline- users -by- 2015 12011 /09 /12 /gIQAkZP7MK_blog.html ?wprss =post -tech. ' Mobile Future, 2011 Mobile Year In Review. 7 FCC.gov, Guide: Wireless 911 Services, available at http: / /www.fcc.gov /guides /wireless -911- services. PCIA calwa increasingly rely upon their personal wireless service devices as their primary method of communication. 8 As NENA observes: Calls must be able to be made from as many locations as possible and dropped calls must be prevented. This is especially true for wireless 9 -1 -1 calls which must get through to the right Public Safety Answering Point ( "PSAP ") and must be as accurate as technically possible to ensure an effective response. Increased availability and reliability of commercial and public safety wireless service, along with improved 9 -1 -1 location accuracy, all depend on the presence of sufficient wireless towers.9 For this reason, decisions on siting requests made by the personal wireless service industry were not intended by Congress to be subjected "to any but the generally applicable time frames for zoning decision [s].i10 Thus, the adoption of special procedural schemes unique to wireless siting requests should be avoided. The FCC Shotclock Declaratory Ruling and the California Permit Streamlining Act In addition to the provisions of Section 337(c)(7) of the Communications Act of 1934 referred to in the staff report, subsection (13)(ii) of that section contains another requirement that the City should keep in mind when crafting its new ordinance. That provision requires that a "local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request." The FCC recently adopted a Declaratory Ruling on November 18, 2009 under this subsection holding that "a `reasonable period of time' is, presumptively, 90 days to process personal wireless service facility siting applications requesting collocations, and, also presumptively, 150 days to process all other applications. "'' Given the rate at which demand for advanced wireless services has been growing, and in particular the growth in the demand for bandwidth as a result of adoption of smart phones and wireless - enabled laptops and tablets, the need for speedy local approvals of proposed wireless deployments has become truly critical to providing the wireless services consumers demand. Indeed, the FCC's presumptive timeframe for action may be superfluous given that California law has, for decades, contained absolute deadlines by which action must be taken. As you are no doubt aware, the California Permit Streamlining Act imposes a 60 -day time limit for approving or denying a requested permit after a project has been determined to be categorically s Petition for Declaratory Ruling To Clark Provisions of Section 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and Local Ordinances That Classify All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 FCC Rcd 13994, 14021 ¶ 71 (2009) ( "Shot Clock Ruling "), recon. denied, 25 FCC Rcd 11157 (2010), affd, City of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEXIS 1252 (5th Cir. 2012). 'Shot Clock Ruling, at 36. 0 H.R. Conf. Rep. No. 104 -458, 104th Congress, 2nd Sess. 208 (1996). " Shotclock Ruling. 4 4 PCIA calwa exempt from CEQA12 or a negative declaration or mitigated negative declaration has been adopted. 13 The Wireless Provisions in Middle Class Tax Relief and Job Creation Act of 2012 Staff failed to mention the Middle Class Tax Relief and Job Creation Act of 2012, enacted with bipartisan support and signed into law by President Obama on February 22, 2012. One of the measures included in the Act was the creation of a nationwide interoperable broadband network for first responders. In addition to authorizing the FCC to allocate necessary spectrum for this new interoperable network, the Act also contained provisions designed to establish voluntary incentive auctions of wireless spectrum, which are expected to raise $15 billion over the next eleven years. Seven billion dollars of the auction proceeds have been allocated for public safety broadband network build out. The Act reflects an implicit acknowledgement that realizing the financial viability of the spectrum auctioned depends on the ease with which purchasers can deploy the infrastructure needed to utilize it. At the same time, it allays local concerns over the potential impact of the construction of new sites. In a carefully crafted attempt to address both industry and local concerns, Section 6409 of the Act streamlines, and thereby incentivizes the use of, modification of existing sites in lieu of new builds. Although the staff proposals reflect a similar recognition of the need for streamlined review of modifications, PCIA and Ca1WA provide herewith a detailed explanation of this recent law due to concerns that the definitions provided in the report fail to reflect those adopted and utilized by the FCC. Section 6409 of the Act requires state and local governments to approve an eligible facilities request for the modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. Section 6409 applies to "eligible facilities requests" for modification of existing wireless towers and base stations. The Act defines "eligible facilities request" as any request for modification of an existing wireless tower or base station that involves: • Collocation of new transmission equipment; • Removal of transmission equipment; or • Replacement of transmission equipment. Many of the terms employed in the section are concepts that were hammered out in negotiations between local government and industry representatives in an agreement that was adopted by reference in regulations promulgated by the FCC. Thus, for example, "collocation" has been defined as "the mounting or installation of an antenna on an existing tower, building or structure for the purpose of transmitting and /or receiving radio frequency signals for communications purposes." 14 12 Gov. Code § 65950(a)(4). "Gov. Code § 65950(a)(3). 14 Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (2001), available at 47 C.F.R. Part I, Appendix B ( "Collocation Agreement "). See also Petition for Declaratory Ruling To Clarify Provisions ofSection 332(C)(7)(B) To Ensure Timely Siting Review and To Preempt Under Section 253 State and Local Ordinances That Classy All Wireless Siting Proposals as Requiring a Variance, Declaratory Ruling, 24 El PCIA 4 calwa The same agreement also addressed the issue of what constitutes a substantial change in the size of a tower: The mounting of the proposed antenna on the tower would increase the existing height of the tower by more than 10 %, or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to avoid interference with existing antennas; or The mounting of the proposed antenna would involve the installation of more than the standard number of new equipment cabinets for the technology involved, not to exceed four, or more than one new equipment shelter; or The mounting of the proposed antenna would involve adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than twenty feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater, except that the mounting of the proposed antenna may exceed the size limits set forth in this paragraph if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable; or The mounting of the proposed antenna would involve excavation outside the current tower site, defined as the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site. 15 In this agreement, a "tower" is defined as "any structure built for the sole or primary purpose of supporting FCC - licensed antennas and their associated facilities. 16 While the concept of a "base station" is not referenced in the agreement, the term has a long - established meaning consistently used throughout both FCC regulations and case law, namely a fixed location from which wireless signals are transmitted. For example, FCC regulations define a "base station" as "[a] station at a specified site authorized to communicate with mobile stations;" or "A land station in the land mobile service." 17 We urge the Planning Commission to use these well recognized definitions within its Ordinance. FCC Red 13994, 14021 1171 (2009) ( "Shot Clock Ruling "), recon. denied, 25 FCC Red 11157 (2010), affil, City of Arlington, Tex., et al. v. FCC, 2012 U.S. App. LEXIS 1252 (5th Cit. 2012). "Collocation Agreement, note, above. 16 Id. "See, e.g., 47 C.F.R. § §24.5, 90.7. PCIA Conclusion calwa Reliable wireless communications are no longer a luxury. Wireless facilities provide a platform for broadband accessibility, creating a link from the City of Newport Beach to the world through high -speed Internet access. The City of Newport Beach has an opportunity to facilitate expanded wireless coverage to its citizens, businesses, and first responders by moving forward with amending its code in consideration of the wireless infrastructure industries' suggestions provided herewith. PCIA and CalWA hope to participate in the ordinance revision process as it develops, if Planning Commission defers action on this item to consider the industry's concerns. We appreciate your support to further our mutual goal of implementing and deploying responsible and timely wireless infrastructure to serve the City of Newport Beach, CA. Sincerely, /s/ Julian Quattlebaum Co- Chair, Regulatory Committee California Wireless Association (CalWA) 800 S. Pacific Coast Hwy # 448 Redondo Beach, CA 90277 310 - 356 -6950 jq @channellawgroup.com /s/ Sean Scully Co- Chair, Regulatory Committee California Wireless Association (CalWA) 800 S. Pacific Coast Hwy # 448 Redondo Beach, CA 90277 818 - 426 -6028 permittech @verizon.net /s/ Kara Leibin Azocar Government Affairs Counsel PCIA —The Wireless Infrastructure Association 901 N. Washington St., Suite 600 Alexandria, VA 22314 703 -535 -7451 Kara.Azocar@pcia.com Paul w/ www.oboylelaw,com e/ pro @oboylelaw.com "pECF VED AFTER AGE!�31,1 R. O' B o y �o�:_, 11 Paul R O'Boyle, JD /MBA 13269 Deer Canyon Place San Diego, CA 92129 Honorable Mayor and Members of the City Council City of Newport Beach Community Development Department 100 Civic Drive Newport Beach, CA 92660 777-/Y t/ (858) 922 -8807 f/ (858) 484 -7831 January 13, 2014 RE: Newport Beach Municipal Code — Chapter 20.49 - Comments on Draft WTF Ordinance Dear Honorable Mayor and Members of the City Council: Crown Castle NG West, LLC. ( "Crown "), has been involved for some time with the City of Newport Beach ( "City ") in the rewriting of the City's Wireless Telecommunications Facilities Ordinance ( "Ordinance "). While the process has been long and arduous, the current Draft Ordinance is vastly improved from its initial iterations and the City and City Staff should be commended. Unfortunately, the current Draft Ordinance misses a golden opportunity to be a proactive ordinance as opposed to a reactive ordinance. In particular, the Draft Ordinance does not encourage the deployment of newer, small cell technology, such as DAS, that improves wireless coverage and capacity solutions without creating the same level of visual impacts to the community as traditional "macro" wireless cell sites. The wireless industry has matured to the point that industrial and commercial areas of the City, for the most part, have presently acceptable coverage. While Crown disagrees with City Staffs recommended treatment of Class III (ROW) facilities as compared to Class II (visible) facilities in these areas, Crown can live with the defined protocol. In residential areas, however, Crown strongly disagrees with City Staff recommendations. With the surging use of smart phones, tablets and other wireless devices at home, there has been a corresponding increase in demand to provide this "last mile" of wireless coverage at people's homes. The challenge is how are wireless companies to provide such coverage when ordinances, such as the City's Draft Ordinance effectively precludes wireless facilities in residential areas? The Draft Ordinance does not acknowledge this trend, nor does it provide a reasonable and viable path forward to meet City constituents' wireless needs. In a perfect world all utility infrastructure (electric, gas, water, and telephone, etc.) would be invisible to the average person. The reality of the situation is that is not the case, particularly for wireless infrastructure. Technology has not evolved to the point where antennas can be placed underground and work effectively. Instead of just analyzing whether a facility is "visible" or not, the Ordinance should also evaluate wireless telecommunication facilities based on their size. Physically smaller and less obtrusive facilities should be encouraged by receiving preferential processing treatment. If the wireless industry were given a City- defined small cell exemption or administrative review, the City could help steer wireless providers to deploy less visibility obtrusive equipment. At several Planning Commission hearings Crown proposed that the City include a small cell exemption and that the City define the physical dimensions that would constitute a small cell. City Staff responded by saying they did not want to define the physical dimensions of a small cell because they did not want to discriminate between various competing technologies. This position is a red herring. In other jurisdictions, such as Ventura County, major wireless providers such as AT &T, Verizon as well as telephone corporations such as Crown have all accepted the County's definition of 8.2- cubic feet or smaller qualifying as a small cell. The City of Costa Mesa has also provided the wireless industry with physical dimensions that would qualify as small cell technology. It is in the City of Newport Beach's interest to take a similarly proactive approach and specifically define small cell technology so as to drive the deployment of less intrusive technologies. If you have any questions or need additional information regarding these comments, please do not hesitate to contact me. Thank you. Sincerely, Paul R. O'Boyle CC: Jim Campbell, Principal Planner P.2of2