WIRELESS ORDINANCE Proposed Revisions

Planning Commission

November 19, 2008

Why Are We Here ?

Litigation: City’s WTO challenged in 2007

Issues: Unfettered discretion, burdensome application process, substantial costs, subjective design requirements, vague standards and findings

Similar to successful litigation against San Diego WTO

City Council direction – CC must consider ordinance changes by 1/20/09 per Settlement Agreement

Sept. 2008 9th Circuit Decision

Background: San Diego Ordinance was previously overturned because the Court determined that the permit process & design requirements may have prohibited telecom services.

2008: 9th Circuit decision reversed decision & upheld San Diego WTO.

A plaintiff can no longer claim that a local ordinance is invalid on its face because it MAY have the effect of prohibiting the provision of telecom services.

What does this mean for Berkeley?

More protection for existing WTO – less pressure to change it in response to litigation/stipulation

Still have to report back to City Council by January 20th

More flexibility for future changes If challenged (future litigation),

plaintiffs must show outright prohibition or an effective prohibition

Basic TCA Requirements

Local ordinance must comply with TCA City’s ordinance would be subject to

challenge if it: Imposes an outright prohibition or an

effective prohibition on telecom services

Regulates on the basis of environmental or health impacts

What Do We Need to Accomplish?

CC referred to PC to respond to Settlement Agreement

Purpose of changing ordinance is to make it more defensible

Not in work program to start a new project to entirely rewrite ordinance

Key Changes Previously Approved by PC

Findings made more specific

Co-location no longer encouraged

Monitoring fee added Microcells encouraged Remands limited to one

time

Previous PC Recommended Changes

(Now Dropped)Simpler process and fewer

findings for projects that do not impact residential neighborhoods (C-2, MU-LI, M, and MM Districts)

Removal of the threat of criminal sanctions

Delete the “non-detriment” finding

New Changes

Annual certification required, conformance required, opportunity to cure.

Clarification that modifications must be approved by ZAB

Require initial measurement to include cumulative impacts

New Change23C.17.090 A1

Within forty five (45) days of initial operation or modification of a telecommunications facility, the operator of each telecommunications antenna shall submit to the Zoning Officer written certification by a licensed professional engineer that the facility’s radio frequency emissions are in compliance with the approved application and any required conditions. The engineer shall measure the radio frequency radiation of the approved facility, including the cumulative impact from other nearby facilities and determine if it meets the FCC requirements. A report of these measurements and the engineer’s findings with respect to compliance with the FCC’s Maximum Permissible Exposure (MPE) limits shall be submitted to the Zoning Officer.

New Change23C.17.100 A2

All other new or modified wireless telecommunications facilities shall require the approval of a Use Permit by the Zoning Adjustments Board except as provided in Sections 23B.56.020 and 23C.17.050D.

New Change23C.17.100 4B - Findings

That the wireless carrier is in compliance with Section 23C. 17.090 A1 and 2 of this ordinance. If a wireless carrier has not provided the information and certifications required by Section 23C.17.090A1 and 2, the wireless carrier may cure noncompliance by providing current contact information and certification statements for any sites which have been deemed to be not current.

Options for Action

Staff Recommendation: Approve revised ordinance Option: Include recommendation that

CC include ordinance overhaul as part of future Planning Dept work program.

Rescind previous approval No Action

How Revised Ordinance is Better than Existing

Ordinance Findings made more specific Co-location no longer encouraged Monitoring fee added Microcells encouraged Annual certification required Clarification that modifications must be approved by

ZAB Require initial measurement to include cumulative

impacts More defensible Better organized/easier to use