SUBJECT: Project No , Burbank Municipal Code Text Amendment Update to the Wireless Telecommunications Facilities Ordinance

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1 DATE: August 18, 2015 TO: FROM: Mark Scott, City Manager Justin Hess, Asst. City Manager/Interim Community Development Director Via: Carol D. Barrett, Assistant Community Development Director By: Patrick Prescott, Deputy City Planner SUBJECT: Project No , Burbank Municipal Code Text Amendment Update to the Wireless Telecommunications Facilities Ordinance RECOMMENDATION A. Introduce AN ORDINANCE OF THE COUNCIL OF THE CITY OF BURBANK AMENDING TITLE 10, ARTICLE 2; TITLE 10, ARTICLE 11; TITLE 10, ARTICLE 19; AND TITLE 7 ARTICLE 7 OF THE BURBANK MUNICIPAL CODE PERTAINING TO WIRELESS TELECOMMUNICATIONS FACILITIES (PROJECT NO , CODE TEXT AMENDMENT) (Exhibit A); and B. Direct appropriate staff to reexamine the Noise Element of the Burbank2035 General Plan. BACKGROUND Sections and of the Burbank Municipal Code (BMC) contain Wireless Telecommunications Facilities (WTF) development standards for private property and the public right-of-way (PROW) (Exhibit B). The development standards were comprehensively updated in Shortly after the update, the community raised concerns about the effectiveness of the development standards to adequately regulate WTFs. The City Council, recognizing that that technology associated with and the regulatory framework related to wireless telecommunications is continually changing, directed staff to look into additional changes to address new federal regulations and community concerns. The City Council also directed staff to concurrently address complimentary changes to the regulations regarding WTFs in the PROW, as the community concerns encompassed both private and public property. Public Participation To help facilitate the ongoing discussion about WTFs and provide expert legal advice, the City engaged the services of Jeff Melching, an expert on wireless telecommunications regulations, of the private law firm of Rutan and Tucker. Over the course of the past two years, the City Council has discussed additional changes that could be made to the regulations for WTFs on both public and private property at five City Council meetings. In addition, staff and the consultant met with the public to

2 discuss WTF regulations for private property at four community meetings. In addition, staff regularly met with smaller groups of individuals to discuss the topic. As a result of those efforts, the City Council expressed support for a package of changes, which staff incorporated in a public review draft of the proposed Zone Text Amendment (ZTA) (Exhibit C). The public review draft was released for a 30 day review period in December At the conclusion of the review period a community meeting was held on January 14, 2015 to discuss the proposed changes. Prior to and after the community meeting, staff received comments from members of the community and the wireless industry (Exhibit D). The proposed ZTA was modified in response to some of the comments. Regulatory History in Burbank 1996 Development Standards A comprehensive set of development standards regarding WTFs were first adopted by City Council in The standards were broad and focused on basic aesthetics. The following list summarizes the development standards. The first WTF on a property was allowed by-right in all zones except R-1 and R- 2. A Conditional Use Permit (CUP) was required if there was more than one WTF on a property. Building mounted WTFs were allowed in R-3, R-4, and R-5 Multi-Family Residential zones. A CUP was required if a freestanding WTF exceeded 35 feet in height. Maximum height was determined by proximity to residential zones. The further away the proposed WTF was from those zones, the taller it could be. The requirement was not based on technology or concern about Radio Frequency (RF) emissions; rather it reflected existing height restrictions that applied to other commercial and industrial uses Interim Regulations In 2009, the City initiated a comprehensive update to the WTF Ordinance. In August 2010, the City Council approved an interim ZTA to require a CUP for all new facilities, require that applicants provide proof that the proposed facility would be in compliance with Federal Communications Commission (FCC) regulations, and require that proposed facilities meet higher aesthetic standards as an interim measure while staff prepared a more comprehensive update Updated Regulations The City Council voted to adopt a comprehensive update to the WTF Ordinance in 2011, resulting in the current regulations. The 2011 update included a more substantial set of aesthetic regulations for modified and new WTFs. The WTF Ordinance also incentivizes the development and placement of building mounted WTFs, (which are less conspicuous and more easily disguised than freestanding WTFs) away from residential properties through a tiered permitting approach. Generally, the tiered approach makes it easier and more appealing for wireless providers to apply for permits if a proposed WTF is located in a non-residential zone and if the proposed location is not adjacent to a residential zone. 2

3 2012 Updated PROW Regulations The City Council adopted an ordinance amending Section to add Section to: (1) after public notice, permit the installation of WTFs on new utility or street light poles in the PROW where it can be shown that installation on existing poles would be impractical or technologically infeasible; and (2) provide an appeal process for such approvals. Federal Regulations WTFs are licensed and regulated by the FCC. Although local jurisdictions do have some authority to develop regulations to address the time, manner and location of proposed WTFs, the law is clear 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 [Federal Communications Commission] regulations concerning such emissions. 47 U.S.C. 332(c)(7)(B)(iv) [n]o State or local statute or regulations, 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. 47U.S.C. 253(a). [t]he regulation of the placement, construction, and modification of personal wireless service facilities shall not prohibit or have the effect of prohibiting the provision of personal wireless services. 47U.S.C. 332(c)(7)(i)(II). The Shot Clock Order In 2009, the FCC issued Declaratory Ruling 09-99, known as the Shot Clock Order. The Shot Clock Order establishes reasonable time frames for governments to act on wireless applications. Applications for co-location must be decided within 90 days, and applications for new facilities within 150 days. In 2010, the FCC issued an Order on Reconsideration affirming the Shot Clock of 90 days for co-locations and 150 days for all other wireless tower siting applications reviewed by state and local zoning authorities. All applicants for wireless facilities must fill out a Supplemental Application for WTFs and distributed antenna systems as part of the process. Middle Class Tax Relief and Job Creation Act of 2012 The Middle Class Tax Relief and Job Creation Act of 2012 included a provision that a state or local government may not deny, and shall approve, any eligible request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. The FCC, defines substantially change as an increase in height of more than 10 percent or the height of one additional antenna array with the vertical separation from the nearest existing antenna not to exceed 20 feet, whichever is greater. The FCC also defines a base 3

4 station as a radio facility at a fixed location that communicates to mobile devices. Each licensed WTF has its own base station. DISCUSSION The issues of concern expressed by the community are noted below, followed by the City Council s direction and the proposed BMC section that addresses the concern. The issues are separated by private property versus PROW. Private Property Issues Setbacks From and Within Residential Zones City Council Direction: Site specific setbacks can be determined through a CUP and continue to rely on the existing requirement of a 20 foot separation between commercial/industrial and residential zones. Preferred and Non-Preferred Zones City Council Direction: For institutional uses in R-1, require a CUP but allow only on showing of: i. Significant gap ii. No feasible, less intrusive alternative iii. Imposition of impact-minimizing conditions Proposed Code Text: C(3) and (5) Inspections and RF Testing City Council Direction: Require independent certification every five years rather than annually as had been requested by some members of the community due to the amount of staff resources needed for annual monitoring. Proposed Code Text: E(2) The proposed ZTA was also modified to clarify that the certification requirement also applies to Distributed Antenna System (DAS) installations and include a definition for DAS. Length of Permit City Council Direction: Require 10 year expirations for CUPs. Proposed Code Text: C(4) The 10 year expiration would apply to both Administrative Use Permits (AUPs) and CUPs. The applicant may re-apply for a new AUP or CUP to continue to use and operate the existing facility, but may upon review, be required to upgrade it to comply with additional standards, and incorporate additional technologies. Noise Impacts City Council Direction: Require more information on potential noise impacts on the application form. 4

5 Proposed Code Text: D(3)(c) and (k). The Supplemental Application form was also revised (Exhibit E) to require additional noise information. Hazardous Materials/Equipment Disclosures City Council Direction: Require more information on hazardous materials and equipment disclosures on the application form. The Supplemental Application form was revised to require applicants disclose information about hazardous materials associated with the WTF installation. Noticing and Signage City Council Direction: Require 10 business days notice for mailed notices (currently in effect), and require a visible sign at the site of the proposed installation for projects requiring AUPs and CUPs. Proposed Code Text: The following language will be added to all discretionary permit procedures: One four (4) foot by eight (8) foot sign, approved by the Community Development Director, shall be posted on the subject property. The sign shall be posted no less than ten business days prior to the scheduled hearing or decision date. This requirement would apply to all discretionary permits, not just those for WTFs. PROW Issues WTF Type Preferences City Council Direction: Increase the burden of proof for applicants and only allow new poles upon showing: i. Significant gap ii. No feasible, less intrusive alternative iii. Imposition of impact-minimizing conditions Proposed Code Text: B(5)(v) Issue: Siting in Residential Zones City Council Direction: Increase the burden of proof for applicants and only allow WTFs adjacent to residential zones upon showing: i. Significant gap ii. No feasible, less intrusive alternative iii. Imposition of impact-minimizing conditions Proposed Code Text: A (1), (2), and (3) Aesthetics and Underground Equipment City Council Direction: No change from existing ordinance, which requires compliance with the aesthetic regulations found in Title 10, unless the applicant can demonstrate compliance is infeasible. 5

6 It is likely that in most cases, it would be determined that placing equipment underground in the PROW would be infeasible due to the abundance of existing underground infrastructure and the likelihood of utility conflicts and secondary impacts such as increased noise. However, the community concerns about above ground utility boxes in general, and not just equipment associated with WTFs, has been recognized by City Council and the topic has been separated from the WTF Ordinance update in order to more closely examine the issue and determine what possible solutions may exist to address community concerns. Discretionary WTF Encroachment Permits City Council Direction: The Encroachment Permit includes appeal rights to the City Council. Increase the burden of proof for applicants. Permit WTFs in or adjacent to single-family residential zones only upon showing: i. Significant gap ii. No feasible, less intrusive alternative iii. Imposition of impact-minimizing conditions Proposed Code Text: A(1), (2), and (3) Inspections and RF Testing City Council Direction: Require independent certification every five years rather than annually as had been requested by some members of the community due to the amount of staff resources needed for annual monitoring. Proposed Code Text refers back to: E(2) Length of Permit City Council Direction: Require 10 year permit reviews for WTF Encroachment Permits. Proposed Code Text: A(1), (2), and (3) Noise Pollution City Council Direction: Additional information must be provided as part of the application process. Applicants must demonstrate compliance with the Noise Ordinance. All equipment must be in an enclosure. Proposed Code Text: D(3)(c). The Supplemental Application has also been amended to require additional noise analysis. Throughout the public participation process, it became apparent that the community is concerned about noise generated by all types of equipment in the PROW and on private property, not just equipment associated with WTFs. The current noise regulations do not address the type of persistent ambient noise that may not exceed adopted volume thresholds, but is a nuisance to residents. Staff recommends the City Council direct the appropriate staff to reexamine the Noise Element to assess noise impacts on a community level and re-evaluate the efficacy of the existing thresholds. 6

7 Safety City Council Direction: Require demonstration of compliance with General Order 95 (state regulations regarding overhead utility design and operational safety requirements) prior to installation. Applicants must also demonstrate compliance as part of the Encroachment Permit application process. Planning Board Recommendation The Planning Board considered the proposed changes to Title 10 at a public hearing on February 9, 2015 and voted 5-0 to recommend approval to the City Council (Exhibit F). The Board was satisfied that the proposed ZTA addressed concerns of the community and maintained the means to generally encourage development of WTFs away from residentially zoned property. The Board members also noted that the WTF Ordinance is amendable in the future as existing conditions, technology, or federal regulations change. One member of the public representing Verizon Wireless noted that they had concerns about some elements of the proposed ZTA; however, staff responded and affirmed that while the concerns of the industry were considered, the proposed ordinance was carefully and deliberately crafted with assistance from the consultant to be in compliance with all applicable legislation. ENVIRONMENTAL The proposed ordinance is exempt from the California Environmental Quality Act (CEQA) in accordance with Section of the State CEQA Guidelines for minor alterations to land use limitations. FISCAL IMPACT The proposed ZTA maintains the existing tiered permitting approach, which allows some WTFs by-right and generally encourages the development of WTFs away from residentially zoned properties by requiring more restrictive discretionary permits and increasing the burden of proof to demonstrate a proposed WTF is necessary in or near residentially zoned properties. The tiered approach may reduce the amount of staff time needed to process discretionary permits. Although the burden of proof has generally increased for WTF applications that are in or near residentially zoned properties, the amount of additional staff time needed to process discretionary permits for private property can be accommodated by existing staff. The 10 year permit expirations for discretionary permits on private property will result in increased staff time needed to process new applications however, this time is offset by application fees. CONCLUSION The proposed updates to the existing WTF Ordinance were developed through a long public process. The proposed updates address many of the concerns expressed by the community about the review process, FCC compliance, and aesthetics for WTFs. The proposed ordinance would not retroactively apply to existing facilities. However, as evidenced by existing trends and the need for the update to the existing ordinance, wireless technology is rapidly advancing and changing, and many of the existing facilities in Burbank would most likely need to be upgraded or replaced in the near 7

8 future, at which time the requirements found in the new ordinance would be applied to the extent reasonable based upon the scope of the upgrade or replacement. List of Exhibits Exhibit Title A Ordinance B Section : WTF and Section : Encroachment Permits for WTF in the PROW C Public Review Draft of the ZTA D Public Comments E Supplemental WTF Application F Planning Board Resolution No