Transcript City of Berkeley Creeks Ordinance

WIRELESS ORDINANCE
Proposed Revisions
Planning Commission
November 19, 2008
Why Are We Here ?
 Litigation: City’s WTO challenged in
2007
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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
th
9
Sept. 2008
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 Change
23C.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 Change
23C.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 Change
23C.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
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