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HomeMy WebLinkAboutOrd 1915ORDINANCE NO. 1915 AN INTERIM ORDINANCE OF THE CITY OF BURLINGAME GOVERNING WIRELESS FACILITY MODIFICATIONS UNDER 47 U.S.C. § 1455 WHEREAS Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (codified at 47 U.S.C. § 1455) restricted the regulatory authority that local jurisdictions may exercise over modifications to existing wireless facilities; and WHEREAS the Federal Communications Commission has issued regulations implementing those provisions and further elaborating the restrictions on local jurisdictions; and WHEREAS some of the City of Burlingame's existing wireless ordinance provisions have been preempted by these federal actions; and WHEREAS the City of Burlingame has decided to support a challenge to the recent action by the Federal Communications Commission; and WHEREAS the City of Burlingame nonetheless intends to comply with existing federal mandates until such time as they may be clarified through such litigation or other action; and WHEREAS the City of Burlingame needs fime to re-evaluate its existing wireless ordinance in light of the federal actions as they may be modified; NOW, THEREFORE, the City Council of the City of Burlingame does hereby find, declare and ordain as follows: Section 1: Council Findings A. The City Council finds and declares that the public health, safety, and welfare, requires that the City enact a temporary ordinance bringing its existing regulations in line with recent federal actions restricting local authority over applications for modification of existing wireless facilities and that without the adoption of this interim urgency ordinance, the City Council will not have sufficient time and ability to study the new federal scheme and enact effective implementing regulations. B. The City Council finds that the current Chapter 25.77 of the Burlingame Municipal Code must be amended to reflect recent changes in federal law and regulations governing local control over wireless facility modifications. C. This urgency ordinance is necessary at this time in order to evaluate appropriate regulatory approaches under recent Federal actions to alter the authority of local jurisdictions regarding wireless facility modifications. Section 2: Interim Ordinance Provisions. In accordance with the authority granted to the City by California Government Code Section 65858, and pursuant to the findings stated herein, from and after the date of this ordinance, the Municipal Code of the City of Burlingame shall be amended by adding a section 25.77.168, as follows: 25.77.168 Wireless Facility Modification under 47 U.S.C. § 1455 (a) Notwithstanding anything contrary in this chapter, any applicant fox a permit required by section 25.77.050 who believes that its application qualifies under § 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 (codified at 47 U.S.C. § 1455) as implemented by 47 C.F.R. 1.40001 shall expressly request approval under this section when submitting its initial application and shall provide the City with such evidence as reasonably required by the City to demonstrate that its application qualifies for submittal under this section. Upon application submittal, the Community Development Director shall review the application to determine if it qualifies for submittal hereunder. The Community Development Director may require additional information from the applicant as necessary to make this determination. No applicant requesting approval under this section shall be required to include the information required under section 25.77.060(a)(6) with its initial application but the applicant may be required to provide this information to complete its application if the Community Development Director determines that the application does not qualify for submittal under this section and the section under which the application does qualify requires such information to be submitted. (b) If the Community Development Director determines that an application qualifies under subsection (a), the Community Development Director shall process the application in a similar manner as an application for an administrative use permit under this chapter. If the application is approved, the Community Development Director shall issue an administrative use permit that indicates that the permit is granted pursuant to this section. Moreover, except as expressly prohibited by federal law, the administrative use permit shall be conditioned on compliance with all provisions of this chapter and other lawfully imposed conditions of approval. (c) This section shall be interpreted narrowly to preserve City discretion over wireless communication facilities to the fullest extent permitted by applicable federal law. This section does not and shall not be construed to grant any rights beyond those granted by 47 U.S.C. § 1455 as implemented by 47 C.F.R. 1.400015 including subsequent changes adopted, enacted or imposed by the Federal Communications Commission, federal legislation and case law. Section 3. The City Council hereby finds and determines that this interim urgency ordinance is necessary as an emergency measure pursuant to Government Code Section 65858 for preserving the public health, safety, and welfare of the citizens of the City of Burlingame. Section 4. This interim urgency ordinance shall take immediate effect on adoption by four-fifths vote of the City Council. The interim urgency ordinance shall continue in force and effect for ten (10) months and fifteen (15) days from the date of its adoption and shall thereafter be of no force and effect unless, after notice pursuant to Government Code Section 65090 and a public hearing, the City Council extends this urgency ordinance. Section 5. The City Attorney shall review and consider options for the regulation of massage establishments in the City and provide to the City Council a report describing the measures that the City has taken to address the conditions which led to the adoption of this interim urgency ordinance. Section 6. The City Clerk shall publish this urgency ordinance in the manner required by law. Section 7. If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. o � Terry Nagel, Mayor [Certification on next page] I, MARY ELLEN KEARNEY, City Clerk of the City of Burlingame, do hereby certify that the foregoing ordinance was introduced and adopted at a special meeung of the City Council held on the 13a day of May 2015 by the following vote: Ayes: Councilmembers: Brownrigg, Keighran, Nagel, Ortiz, Root Noes: None Absent: None Attest: Mary Ellen Kearney, City Clerk