Wireless Subcommittee Meeting

MINUTES WIRELESS SUBCOMMITTEE Wednesday, October 1, 2018 12:00 PM – 2:00 PM COUNCIL CHAMBERS FEW MEMORIAL HALL OF RECORDS 580 PACIFIC STREET MONTEREY, CALIFORNIA Members Present: Dawson, Nine, Brassfield, Breedlove, Hansen, Olsen, Peterson Members Absent: None Staff Members Present: Community Development Director Cole, City Attorney Davi CALL TO ORDER Chair Dawson called the meeting to order at 12:05 PM PUBLIC COMMENTS Nina Beety said she would like to make comments on already adopted changes that will be considered on today’s agenda and asked if it would be better to wait. Chair Dawson said it would be better to wait for the agenda item to be heard. Sandra Collingwood, 999 Johnson Street, suggested that the City contact the Middlebury Institute of International Studies professors to write letters. She also said there needs to be exemptions for homes in forested areas. Ms. Collingwood said the average citizen does not know anything about the FCC and that people locally do not understand what is taking place. PUBLIC APPEARANCE Consider New Information about the Potential Federal Communications Commission (FCC) Ruling and Amendments to Monterey City Code Chapter 38, Article 17, Section 112.4 Personal Wireless Service Facilities, Monterey City Code Chapter 38, Article 27 Appeals; and Monterey City Code Chapter 38, Article 22, Section 38-159 Notice and Public Hearing; Exempt from CEQA Article 19, Section 15305, Class ACTION: Approved the blue-line version of the ordinance with the added language “and denied” on page 4, after “If the wireless application is incomplete.” Staff Presentation/Subcommittee Member Comments Joseph Van Eaton, Best Best and Krieger (appearing via video teleconference), presentation on the proposed FCC changes. Subcommittee Member Nine stated that she assumed the draft ordinance brought to the Planning Commission made it permissible to deny incomplete applications based. Mr. Van Eaton said this was the issue that ATT&T and Verizon objected to on the grounds that a notice of incompleteness is required. He said if the ordinance allows for denial of incomplete applications it is a risk legally, and the question is whether or not the City wants to take this risk. Mr. Van Eaton suggested giving staff some flexibility to issue a notice if incompleteness if it will not harm the City in order to avoid a potential court action. In regards to aesthetics arguments, Subcommittee Member Nine said currently in the community there is much concern about aesthetics and the transformers and large, black wires that are creating visual blight throughout the neighborhoods. Mr. Van Eaton said the proposed ordinance does not prevent having an undergrounded community. Wireless Subcommittee Minutes Wednesday, October 1, 2018 Subcommittee Member Brassfield asked if private companies utilizing public right of ways is a gift of public funds. Mr. Van Eaton said this argument was raised with the FCC and is going to be raised on appeal, and the argument the companies will make is that it is not a gift because the companies pay the expenses for using the land and do not gain from it. Subcommittee Member Brassfield said regarding ADA accessibility and equipment being placed on sidewalks, he does not think the ordinance is strong enough. Mr. Van Eaton said that he supports the current language as the FCC says it is prohibitory to single out wireless companies and subject them to differential treatment in the right of way. Public Comment Nina Beety has reviewed the FCC rules, sent comments to the FCC, and that there is fragility in the FCC ruling. She also said there is no reason to change the City’s rules intil the FCC changes its rules. Ms. Beety said the limited exception is a fatal flaw and the effective prohibition test nullifies the entire ordinance. She urged the Subcommittee to retain what they had and the City to maintain a significant gap test. Sandra Collingsworth asked who makes up the FCC, if multiple cell facilities can be put on one pole, how the community can be notified quickly, and whether FCC matters can go before the Supreme Court. Subcommittee Member Comments Subcommittee Member Olsen said he is concerned about the fire hazards and said he would like the ordinance to prevent installation of large, unsafe equipment on poles to prevent fire hazards. Subcommittee Member Hansen said she does not have the depth of understanding on everything Mr. Van Eaton presented, but that the Subcommittee should consider the language in Section H. Mr. Van Eaton said including the words “effective prohibition” does not make the ordinance weaker but strengthens it and provides flexibility. Subcommittee Member Dawson said the presentation states that it is not permissible to limit or inhibit personal wireless service and the question is whether a facility is needed to improve personal wireless services. He said this is not a significant gap test. In response to Subcommittee Member Nine’s question regarding least intrusive means, Mr. Van Eaton recommended effective prohibition language because it provides the most flexibility in enforcing the laws. Subcommittee Member Nine suggested that the Subcommittee focus on Phase I and then move onto Phase II. She said it takes what the Subcommittee has directed and makes it easier for them to remediate incomplete applications. Subcommittee Member Nine said she finds it troubling that discretion is required by staff. Mr. Van Eaton said the draft Ordinance preserves more power for the City by giving the Community Development Director latitude to review the application for immaterial, incomplete application issues and requiring the CDD to reject the application unless the staff finds no harm. He also said it does not require notice of incompleteness and that nothing stops the City from charging a resubmission fee. Subcommittee Member Peterson said information is not considered a utility. Mr. Van Eaton said personal wireless services would no longer include internet services or data service other than voiceover IP data and the effective prohibition rule only applies to personal wireless services. He also said FCC has written its order to try to suggest densification of data services, which is critical to improving critical wireless services. 2 Wireless Subcommittee Minutes Wednesday, October 1, 2018 Subcommittee Member Nine spoke of Ms. Beety’s concern that the definition of personal wireless facilities is too narrow and will not apply to certain things that do not technically fall within the personal wireless facility category. Mr. Van Eaton said he does not think the definition is too narrow and gave an explanation of personal wireless facilities. Subcommittee Member Dawson suggested that the Subcommittee look at the blue-lines on pages 4 and 5 and see if there is anything that needs to be changed. The Subcommittee reviewed the proposed language. Mr. Van Eaton said there is wording missing; the language on page 4 says “If the wireless application is incomplete” and it should say “If the wireless application is incomplete and denied.” Subcommittee Member Breedlove made a motion to approve the blue-line version of the ordinance with the added language “and denied” on page 4, after “If the wireless application is incomplete.” Subcommittee Member Peterson seconded the motion. On a motion by Subcommittee Member Breedlove, seconded by Subcommittee Member Peterson and carried by the following vote, the Wireless Subcommittee approve the blue-line version of the ordinance with the added language “and denied” on page 4, after “If the wireless application is incomplete”: AYES: 7 SUBCOMMITTEE MEMBERS: Dawson, Nine, Brassfield, Breedlove, Hansen, Olsen, Peterson NOES: 0 SUBCOMMITTEE MEMBERS: None ABSENT: 0 SUBCOMMITTEE MEMBERS: None ABSTAIN: 0 SUBCOMMITTEE MEMBERS: None RECUSED: 0 SUBCOMMITTEE MEMBERS: None Subcommittee Member Brassfield said that State law says California cities are allowed to charge fees to recover costs. Ms. Cole described the City’s Ordinance and Resolution that establishes the City’s fees. Subcommittee Member Peterson indicated that completing reviews so rapidly increases costs dramatically. Subcommittee Member Hansen said that shortening the shot clock makes it much more expensive for telecommunication companies. SUBCOMMITTEE MEMBER COMMENTS Subcommittee Member Nine asked that staff work on a new timeline for the Wireless Subcommittee. INFORMATIONAL REPORTS & STAFF COMMENTS  None. ADJOURNMENT There being no further business, the meeting adjourned at 2:08 pm. Respectfully Submitted, Approved, Kimberly Cole Chair Community Development Director Wireless Subcommittee 3