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Home My WebLink AboutORD NO 4954ORDINANCE NO. 4 9 5 4 x -Ref. 53 IB AN EMERGENCY ORDINANCE AMENDING CHAPTER 12.30 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO WIRELESS TELECOMMUNICATION FACILITIES. WHEREAS, pursuant to Article XI, Section 7 of the California Constitution, the City Council may make and enforce within its limits all local, police, sanitary and other ordinances and regulations; and WHEREAS, significant changes in federal and State law that affect local authority over wireless communications facilities ("WCFs") have occurred, including but not limited to the following: • On November 18, 2009, the Federal Communications Commission ("FCC") adopted a declaratory ruling (the "2009 Shot Clock"), which established presumptively reasonable timeframes for State and local governments to act on applications for WCFs; and • On February 22, 2012, Congress adopted Section 6409(a) of the Middle Class Tax Relief and Job Creation Act ("Section 6409(a)"), which mandated that State and local governments approve certain modifications and collocations to existing WCFs; and • On October 17, 2014, the FCC implemented new limitations on how State and local governments review applications covered by Section 6409(a), established an automatic approval for such applications when the local reviewing authority fails to act within 60 days, and also further restricted generally applicable procedural rules under the 2009 Shot Clock. This report and order effectively preempted local moratoria on WCFs by finding that the 2009 Shot Clock continues to run even when a valid moratorium is adopted; and • On October 9, 2015, California adopted Assembly Bill No. 57 (Quirk), which deemed approved any WCF applications when the local reviewing authority fails to act within the 2009 Shot Clock timeframes; and On August 2, 2018, the FCC adopted a declaratory ruling that formally prohibited express and de facto moratoria for all telecommunications services and facilities under 47 U.S.C. § 253(a); and �F0AKF9 sT M C'\P,oglam flks %86�\NeeNO Com\�...... e1p0\Temp\NVDC\6313E62CdE4F466SA3C5E2920A1EE7B\B.k 1.1tl 1M151 welessyd,O,d)O,. O O - Page 1 of 5 Pages - ORIGINAL On September 26, 2018, the FCC adopted a declaratory ruling and report and order ("FCC Regulations") that, among other things, creates a new regulatory classification for small wireless facilities, requires State and local governments to process applications for small wireless facilities within 60 days or 90 days, establishes a national standard for an effective prohibition and provides that a failure to act within the applicable timeframe presumptively constitutes an effective prohibition; and WHEREAS, in addition to the changes described above, new federal laws and regulations that would drastically alter local authority over WCFs are currently pending, including without limitation, the following: On March 30, 2017, the FCC issued a Notice of Proposed Rulemaking (WT Docket No. 17-79, WC Docket no. 17-84) and has acted on some of the noticed issues referenced above, but may adopt forthcoming rulings and/or orders that further limit local authority over wireless facilities deployment; and On June 28, 2018, United States Senator John Thune introduced and referred to the Senate Committee on Commerce, Science and Transportation the "STREAMLINE Small Cell Deployment Act" (S. 3157) that, among other things, would apply specifically to small cell WCFs and require local governments to review applications based on objective standards, shorten the 2009 Shot Clock timeframes, require all proceedings to occur within the 2009 Shot Clock timeframes, and provide a "deemed granted" remedy for failure to act within the applicable 2009 Shot Clock; and WHEREAS, given the rapid and significant changes in federal and State law, the actual and effective prohibition on moratoria to amend local policies in response to such changes and the significant adverse consequences for noncompliance with federal and State law, the City Council desires to amend Bakersfield Municipal Code Chapter 12.30 to allow greater flexibility and responsiveness to new federal and State laws in order to preserve the City's traditional authority to the maximum extent practicable (collectively, the "Amendments"); and WHEREAS, the Bakersfield City Charter Sections 23 and 24 allow an Emergency Ordinance to be adopted by a two-thirds vote of the members present for the immediate preservation of the public health, peace, property or safety; and o``eAKF9r C\Program Flgs l%861\NeeNa.Com\Daconverlerpro\emp\NVDC\6BI BE62C-OWF4665NCSU926DP I EF78\EakaaReld 12995.1.WrelesLPollcy_ortl Dou r - Page 2 of 5 Pages - v c ORIGINAL WHEREAS, the 2018 FCC Regulations with their abbreviated effective date have forced the City to take immediate action to preserve the City's ability to manage and preserve its property and rights-of-way by adopting policies to preserve the City's traditional authority to do so to the maximum extent practicable before the 2018 FCC Regulations become effective on January 14, 2019; and WHEREAS, there is insufficient time to process a typical ordinance revision before the 2018 FCC Regulations become effective; and WHEREAS, the adoption of these new policies requires an immediate revision of BMC Chapter 12.30. BE IT ORDAINED by the Council of the City of Bakersfield as follows: SECTION 1. Findings. The City Council finds that: A. The facts set forth in the above recitals are true and correct and incorporated by reference. The recitals constitute findings in this matter and, together with the Administrative Report, other written reports, public testimony and other information contained in the record, are an adequate and appropriate evidentiary basis for the actions taken in this Emergency Ordinance. B. The revisions are consistent with the General Plan, Bakersfield Municipal Code and applicable federal and State law. C. The revisions will not be detrimental to the public interest, health, safety, convenience or welfare. D. The revisions must be approved through this Emergency Ordinance for the immediate preservation of the City's property and rights-of-way. SECTION 2. CEQA. Pursuant to California Environmental Quality Act ("CEQA") Guidelines § 15378 and California Public Resources Code § 21065, the City Council finds that this Emergency Ordinance is not a "project" because its adoption is not an activity that has the potential for a direct physical change or reasonably of 6 AKf9N ti m L:\Pmgmm Flles p861\Neevlo.Com\D.--m ,.\Temp\NVDC\6B1 BE62C-0EO4665 A3C5-E]9]OAI EF]8\Bakenllela.1]995. I.WWOI,POI,0- Doca' <, - Page 3 of 5 Pages - ORIGINAL foreseeable indirect physical change in the environment. Accordingly, this Emergency Ordinance is not subject to CEQA. Even if this Emergency Ordinance qualified as a "project" subject to CEQA, the City Council finds that, pursuant to CEQA Guidelines § 15061(b)(3), there is no possibility that this project will have a significant impact on the physical environment. This Emergency Ordinance merely amends the Bakersfield Municipal Code to authorize the adoption of regulations related to WCFs. This Emergency Ordinance does not directly or indirectly authorize or approve any actual changes in the physical environment. Applications for any new WCF or change to an existing WCF would be subject to additional environmental review on a case-by-case basis. Accordingly, the City Council finds that this Emergency Ordinance would be exempt from CEQA under the general rule. SECTION 3. Amending Bakersfield Municipal Code Chapter 12.30. Bakersfield Municipal Code Chapter 12.30 is repealed in its entirety and amended to read as follows: 12.30. Wireless Facilities within the Public Rights -of -Way All wireless facilities within the public rights-of-way, and all applications and requests for authorization to construct, install, attach, operate, collocate, modify, reconstruct, relocate or otherwise deploy wireless facilities within the public rights-of-way, are subject to a permit as specified in a policy adopted and amended by City Council resolution. All wireless facilities within the public rights-of-way shall comply with the City Council's policy. SECTION 4. Conflicts with Prior Ordinances. If the provisions in this Emergency Ordinance conflict in whole or in part with any other City regulation or ordinance adopted prior to the effective date of this section, the provisions in this Emergency Ordinance will control. SECTION 5. Severability. Should any provision of this Emergency Ordinance, or its application to any person or circumstance, be determined by a court of competent jurisdiction to be unlawful, unenforceable or otherwise void, that determinatiopkKe C1Program Ries IX06\Neavlo.Com\Ooccometlerpro\i¢mp\NVpC\611 BE62CAEIF-0661A3CSfRi26¢AI EF78\11akersfieltl.139951W Irel¢ssRol ky_Ord Doc>' O -Page 4 of 5 Pages - oaiciNni shall have no effect on any other provision of this Emergency Ordinance or the application of this Emergency Ordinance to any other person or circumstance and, to that end, the provisions hereof are severable. SECTION 6. Publication; Effective Date. This Emergency Ordinance shall become effective upon its approval by a two-thirds vote of the members present. --0000000--- HEREBY CERTIFY that the foregoing Emergency Ordinance was passed and adopted by two-thirds of the members of the Council of the City of Bakersfield at a regular meeting thereof held on AEC 12 2018 by the following vote: ✓ ✓ ✓ ✓ ✓ ✓ ✓ AYES COUNCILMEMBER'. RIVERA, GONZALES, WEIR, SMITH, FREEMAN, SULLIVAN, PARLIER SCOUNCILMEMBER. NoI\Y. ABSTAIN'. COUNCILMEMBER. "CY`a- ABSENT :COUNCILMEMBEIR C`n4 JLklE DRIMAKIS, Assistant City Clerk and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED: DEC 111018 By: 44"_ KAREN GOH Mayor APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney By: ( — ANDREW HEG ND Deputy City Attorney AH:dll 6AX' qq CARogomHes [M61ANeeNo.CcmVDaccome,INpmVemPANVOCA6BI BE62CDNF4665'e9CSE2926CA1 E£78ABakenlle16129951 WF1le 6,0rdDocx V - Page 5 of 5 Pages - ORIGINAL AFFIDAVIT OF POSTING DOCUMENTS STATE OF CALIFORNIA) ) ss. County of Kern ) JULIE DRIMAKIS, being duly sworn, deposes and says: That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and that on the 181" day of December, 2018 she posted on the Bulletin Board at City Hall, a full, true and correct copy of the following: Ordinance No. 4954, passed by the Bakersfield City Council at a meeting held on the 12th day of December, 2018 and entitled: AN EMERGENCY ORDINANCE AMENDING CHAPTER 12.30 OF THE BAKERSFIELD MUNICIPAL CODE RELATING TO WIRELESS TELECOMMUNICATION FACILITIES. JULIE DRIMAKIS, CMC Acting City Clerk and Ex Officio of the CouncWtheof Bakersfield By: ELtDEPk S 00CUMENWORMSWORORD wpd