323 URGENCY ORDINANCE NO. 323
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
GRAND TERRACE, CALIFORNIA, ENACTED PURSUANT TO
GOVERNMENT CODE § 36934 AND 36937, WHICH ADDS CHAPTER
12.56 TO THE MUNICIPAL CODE ESTABLISHING REGULATIONS FOR
ALL WIRELESS TELECOMMUNICATION FACILITIES LOCATED IN THE
PUBLIC RIGHT OF WAY IN THE CITY OF GRAND TERRACE
WHEREAS, the City Council may make and enforce within itslimits all local, police,
sanitary and other ordinances and regulations not in conflict with general laws; 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:
A. 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.
B. • 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,
known as eligible facilities requests.
C. On October 17, 2014, the FCC adopted a report and order that, among
other things, 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 further
restricted generally applicable procedural rules under the 2009 Shot Clock.
D. 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.
E. 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).
F.. On September 26, 2018, the FCC adopted a declaratory ruling and report
and order that, among other things, creates a new regulatory classification for small
wireless facilities ("SWFs"), 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
Ordinance No. 323 Page 1 of 7 April 9, 2019
display, sale,
distribution, delivery, offering, furnishing, or marketing of tobacco, tobacco products,
tobacco related products, electronic smoking devices, or tobacco paraphernalia; provided
however, that any grocery store, supermarket, convenience store or similar retail use that
only sells conventional cigars, cigarettes, e-cigarettes or tobacco as an ancillary sale shall
not be defined as a "smoke shop and tobacco store" and shall not be subject to the
restrictions in this chapter.
RESOLUTION 2016-26 1 PAGE OF 7 NOVEMBER 3, 2016
WHEREAS, in addition to the changes described above, new Federal laws and
regulations that drastically alter local authority over WCFs are currently pending, including
without limitation, the following:
A. 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.
B. 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 add Chapter 12.56 to the Grand Terrace Municipal
Code to allow greater flexibility and responsiveness to the new Federal and State laws
while still preserving the City's traditional authority to the maximum extent practicable;
and
WHEREAS, Government Code § 36934 and 36937 expressly authorizes the City
Council to adopt an urgency ordinance for the immediate preservation of the public peace,
health, or safety; and
WHEREAS, the City Council of the City of Grand Terrace deems it necessary to
adopt an urgency ordinance pursuant to Government Code Section 36937(b) to add
regulations to the Grand Terrace Municipal Code to regulate the placement of SWFs and
WCFs in the public rights-of-way, finding the urgency to do so based upon the following
facts:
A. The global wireless telecommunications industry has developed and is
starting to install SWFs primarily in public rights-of-way. SWFs are designed to
accommodate "5G" technology. Wireless telecommunications providers have made
inquiries with the City of Grand Terrace and other California cities about installing SWFs
in municipal rights-of-way, and some other California cities are already receiving
applications for such facilities.
B. The Federal Telecommunications Act of 1996` preempts and declares
invalid all state and local rules that restrict entry or limit competition in both local and long-
distance telephone service, and the FCC has adopted regulations for the implementation
of that Act.
Ordinance No. 323 Page 2 of 7 April 9, 2019
use that
only sells conventional cigars, cigarettes, e-cigarettes or tobacco as an ancillary sale shall
not be defined as a "smoke shop and tobacco store" and shall not be subject to the
restrictions in this chapter.
RESOLUTION 2016-26 1 PAGE OF 7 NOVEMBER 3, 2016
Section 7901 of the California Public Utilities Code authorizes telephone and
telegraph corporations to construct telephone or telegraph lines along and upon any
public road or highway, along or across any of the waters or lands within this state, and
to erect poles, posts, piers, or abatements for supporting the insulators, wires, and other
necessary fixtures of their lines, in such manner and at such points as not to incommode
the public use of the road or highway or interrupt the navigation of the waters.
C. Section 7901.1 of the California Public Utilities Code confirms the right of
municipalities to exercise reasonable control as to the time, place, and manner in which
roads, highways, and waterways are accessed, which control must be applied to all
entities in an equivalent manner and may involve the imposition of fees.
D. The FCC adopted its FCC Ruling expressly to "reduce regulatory barriers
to the deployment of wireless infrastructure and to ensure that our nation remains the
leader in advanced,wireless services and wireless technology." (FCC Ruling, 1129.) The
FCC Ruling is intended to facilitate the spread, growth, and accumulation of SWFs over
a short period of time in order to enable deployment of technology that the FCC Ruling
claims will enable increased competition in healthcare, Internet of Things applications,
lifesaving car technologies, and creation of jobs.
E. SWFs are primarily installed within public rights-of-way and as such create
significant and far-reaching local concerns about traffic and pedestrian safety, land use
conflicts and incompatibilities including excessive height of poles and towers; creation of
visual and aesthetic blights arising from excessive size, heights, noise or lack of
camouflaging of wireless facilities including the associated pedestals, meters, equipment
and power generators, and protection and preservation of public property, all of which
may negatively impact the unique quality and character of the City and the public health,
safety and welfare thereof. Accordingly, regulating the installation of SWFs in the public
right-of-way is necessary to protect and preserve the aesthetics in the community, as well
as the values of properties within the City.
F. The FCC Ruling sets forth new standards for state and local government
regulations of SWFs, which standards restrict the aesthetic requirements that localities
- can imposed upon such facilities. Any aesthetic standard adopted by cities must be:
(1) reasonable, (2) no more burdensome than those applied to other types of
infrastructure deployments, and (3) objective and published in advance.
G. That portion of the FCC Ruling requiring aesthetic standards for SWFs to
be reasonable, no more burdensome than on other infrastructure, and objective and pre-
published, goes into effect April 15, 2019. Standards that are not published in advance
of that date will not be enforceable as to any application incoming to the City until proper
standards are published. Ad hoc aesthetic standards are not enforceable. Cities that
have aesthetic, spacing, or undergrounding standards currently in place may continue to
judge applications against their current standards. However, by April 15, cities may only
enforce aesthetic, undergrounding and spacing standards that are reasonable, no more
burdensome than those applied to other types of infrastructure deployments, and
objective and published in advance.
Ordinance No. 323 Page 3 of 7 April 9, 2019
H. Without the immediate implementation through an urgency ordinance of
regulations specific to the siting of SWFs in the public right-of-way, the City Council will
be unable to adopt and implement such regulations before the April 15, 2019 effective
date for design standards. SWFs could therefore be approved that are inconsistent with
the regulations being developed by the City as permitted by federal and state laws.
WHEREAS, on April 9, 2019, the City Council held a duly noticed public meeting
on this Urgency Ordinance, reviewed and considered the staff report, other written
'reports, public testimony and other information contained in the record.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GRAND TERRACE
DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. The facts set forth in the recitals in this Urgency Ordinance are true
and correct and incorporated by reference. The recitals constitute findings in this matter
and, together with the staff 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 the Urgency Ordinance.
Section 2. This Urgency Ordinance is consistent with the City's General Plan,
Grand Terrace Municipal Code, Grand Terrace Zoning Code and applicable Federal and
State law.
Section 3. This Urgency Ordinance will not be detrimental to the public interest,
health, safety, convenience or welfare.
Section 4. This Urgency Ordinance is categorically exempt pursuant to
Sections 15060(c)(2) and 15061(b)(3) of CEQA, as the proposal is not a project within
the meaning of Section 15378 of the State of California Environmental Quality Act
("CEQA") Guidelines, because it has no potential for resulting in physical change in the
environment, directly or indirectly.
Section 5. Based on the foregoing recitals and all facts of record stated before
the City Council, the City Council finds and determines that the immediate preservation
of the public health, safety and welfare requires that this Urgency Ordinance be enacted
as an urgency ordinance pursuant to Government Code Section 36937(b) and take effect
immediately upon adoption.
A. SWFs are primarily installed within public rights-of-way and as such create
significant and far-reaching local concerns about traffic and pedestrian safety, land use
conflicts and incompatibilities including excessive height of poles and towers; creation of
visual and aesthetic blights arising from excessive size, heights, noise or lack of
camouflaging of wireless facilities including the associated.pedestals, meters, equipment
and power generators, and protection and preservation of public property, all of which
may negatively impact the unique quality and character of the City and the public health,
safety and welfare thereof.
Ordinance No. 323 Page 4 of 7 April 9, 2019
not be enforceable as to any application incoming to the City until proper
standards are published. Ad hoc aesthetic standards are not enforceable. Cities that
have aesthetic, spacing, or undergrounding standards currently in place may continue to
judge applications against their current standards. However, by April 15, cities may only
enforce aesthetic, undergrounding and spacing standards that are reasonable, no more
burdensome than those applied to other types of infrastructure deployments, and
objective and published in advance.
Ordinance No. 323 Page 3 of 7 April 9, 2019
B. Accordingly, regulating the installation of SWFs in the public right-of-way is
necessary to protect and preserve the aesthetics in the community, as well as the values
of properties within the City.
C. However, that portion of the FCC Ruling requiring aesthetic standards for
SWFs to be reasonable, no more burdensome than on other infrastructure, and objective
and pre-published, goes into effect April 15, 2019. Standards that are not published in
advance of that date will not be enforceable as to any application incoming to the City
until proper standards are published.
D. Furthermore, pursuant to the FCC Ruling, new shortened Shot-Clocks have
already taken effect with respect to SWFs (either 60 or 90 days for full determination upon
each application, including all notice periods, supplemental permits, and appeal periods).
These shorter timeframes leave the City with inadequate time and resources to timely
process incoming SWF applications under federal law absent significant streamlining of
the City's current practices and procedures. Therefore, it is of utmost need for the City to
immediately establish a streamlined process for SWF application review.
Therefore, this Urgency Ordinance is necessary for the immediate preservation of
the public peace, health, safety and welfare and its urgency is hereby declared.
Section 6. This Urgency Ordinance is hereby adopted by adding a new Chapter
12.56, "WIRELESS TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-
WAY" to Title 12 of the Grand Terrace Municipal Code, to read in its entirety as shown in
Exhibit A attached hereto and incorporated herein by this reference.
Section 7. If the provisions in this Urgency 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 Urgency Ordinance will control.
Section 8. If any subsection, subdivision, paragraph, sentence, clause or
phrase of this Urgency Ordinance or any part thereof is for any reason held to be
unconstitutional or otherwise unenforceable, such decision shall not affect the validity of
the remaining portion of this Urgency Ordinance or any part thereof. The City Council
hereby declare that they would have passed each subsection, subdivision, paragraph,
sentence, clause, or phrase thereof, irrespective of the fact that any one or more
subsection, subdivision, paragraph, sentence, clause, or phrase be declared
unconstitutional or otherwise unenforceable.
Section 9. This Urgency Ordinance is enacted pursuant. to
Government Code §§ 36934 and 36937 and shall be iih.full force and effect immediately
upon its adoption by the City Council.
Section 10. The City Clerk shall certify as to the passage and adoption of this
Urgency Ordinance and shall cause the same to be posted at the designated locations in
the City of Grand Terrace.
Ordinance No. 323 Page 5 of 7 April 9, 2019
e published. Ad hoc aesthetic standards are not enforceable. Cities that
have aesthetic, spacing, or undergrounding standards currently in place may continue to
judge applications against their current standards. However, by April 15, cities may only
enforce aesthetic, undergrounding and spacing standards that are reasonable, no more
burdensome than those applied to other types of infrastructure deployments, and
objective and published in advance.
Ordinance No. 323 Page 3 of 7 April 9, 2019
PASSED, APPROVED, AND ADOPTED by the City Council of the City of Grand
Terrace at a regular meeting held on the 9th day of April 2019.
Dar ' oe Mayor
ATTEST:
Debra Thomas, City Clerk
APPROVED AS TO FORM:
Adrian R. Guerra, City Attorney
•
Ordinance No. 323 Page 6 of 7 April 9, 2019
, and attested by the City Clerk, at the regular meeting of said City Council
held on the 27th day of March 2019, and that the same was passed and adopted by the
following vote:
AYES: Council Members Allen, Hussey, Robles; Mayor Pro Tern Wilson;
Mayor McNaboe
NOES: None.
ABSENT: None.
ABSTAIN: None.
Executed this 27th day of March 2019, at Grand Terrace, California.
Debra L. Thomas - -
City Clerk _ - _ - •
- - .
[SEAL]
STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF GRAND TERRACE . )
I Debra L. Thomas, City Clerk of the CITY OF GRAND TERRACE, CALIFORNIA,
DO HEREBY CERTIFY that the foregoing Ordinance, being Ordinance No. 323 was duly
passed, approved and adopted by the City Council, approved and signed by the Mayor,
and attested by the City Clerk, at the regular meeting of said City Council held on the 9th
day of April 2019, and that the same was passed and adopted by the following vote:
AYES: Council Members Allen, Hussey, Robles; Mayor Pro Tem Wilson;
Mayor McNaboe
NOES: None.
ABSENT: None. ,
ABSTAIN: None.
Executed this 10th day of March 2019, at Grand Terrace, California.
Debra L. Thomas `
City Clerk -
[SEAL] ~_
Ordinance No. 323 Page 7 of 7 April 9, 2019