WIRELESS ORDINANCE Proposed Revisions Planning Commission November 19

WIRELESS ORDINANCE Proposed Revisions Planning Commission November 19, 2008

Why Are We Here ? w Litigation: City’s WTO challenged in 2007 n n Issues: Unfettered discretion, burdensome application process, substantial costs, subjective design requirements, vague standards and findings Similar to successful litigation against San Diego WTO w City Council direction – CC must consider ordinance changes by 1/20/09 per Settlement Agreement

Sept. 2008 9 th Circuit Decision w Background: San Diego Ordinance was previously overturned because the Court determined that the permit process & design requirements may have prohibited telecom services. w 2008: 9 th Circuit decision reversed decision & upheld San Diego WTO. w 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? w More protection for existing WTO – less pressure to change it in response to litigation/stipulation n Still have to report back to City Council by January 20 th w More flexibility for future changes w If challenged (future litigation), plaintiffs must show outright prohibition or an effective prohibition

Basic TCA Requirements w Local ordinance must comply with TCA w City’s ordinance would be subject to challenge if it: n Imposes an outright prohibition or an effective prohibition on telecom services n Regulates on the basis of environmental or health impacts

What Do We Need to Accomplish? w CC referred to PC to respond to Settlement Agreement w Purpose of changing ordinance is to make it more defensible w Not in work program to start a new project to entirely rewrite ordinance

Key Changes Previously Approved by PC w Findings made more specific w Co-location no longer encouraged w Monitoring fee added w Microcells encouraged w Remands limited to one time

Previous PC Recommended Changes (Now Dropped) w Simpler process and fewer findings for projects that do not impact residential neighborhoods (C-2, MULI, M, and MM Districts) w Removal of the threat of criminal sanctions w Delete the “non-detriment” finding

New Changes w Annual certification required, conformance required, opportunity to cure. w Clarification that modifications must be approved by ZAB w Require initial measurement to include cumulative impacts

New Change 23 C. 17. 090 A 1 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 23 C. 17. 100 A 2 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 23 B. 56. 020 and 23 C. 17. 050 D.

New Change 23 C. 17. 100 4 B - Findings That the wireless carrier is in compliance with Section 23 C. 17. 090 A 1 and 2 of this ordinance. If a wireless carrier has not provided the information and certifications required by Section 23 C. 17. 090 A 1 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 w Staff Recommendation: Approve revised ordinance n Option: Include recommendation that CC include ordinance overhaul as part of future Planning Dept work program. w Rescind previous approval w 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 w Require initial measurement to include cumulative impacts w More defensible w Better organized/easier to use w w w