Laguna Beach is trying to flex some muscle by standing up to AT&T, Verizon, Sprint, and other companies that covet bigger transmission towers to satisfy demands of local cell customers.
Last year, a federal law exempted phone companies from submitting to local review before modifying existing wireless towers. In Laguna, cell companies had been required to submit proposals through the city’s design review board or apply for a conditional use permit to make such changes. Now, cell companies extending antennas as much as 20 feet higher would only have to obtain an administrative permit, which does not require advance public notice.
That doesn’t sit well with the City Council. Last week, council members approved the first reading of an ordinance amending the municipal code to ensure local authorities some discretion over expansion of telecommunication sites in town.
Principal planner Scott Drapkin told the Council that lawyers updated the city’s ordinance to keep it consistent with the federal law but also to give the city as much leeway as possible in complying it.
Part of the Middle Class Tax Relief and Job Creation Act of 2012, effective in February 2012, stipulates that a city lacks the discretionary authority to reject an application to modify, remove or add a new antenna to an existing wireless site unless the modification causes a “substantial change.” In January, the Federal Communications Commission published guidelines that defined “substantial” as a height increase of more than 10 percent or more than 20 feet, whichever is greater.
But the guidelines aren’t laws, said Jeff Melching, in the city attorney’s office of Rutan and Tucker, who drafted the amendments with language that specifies that the director of community development will determine what constitutes substantial change. The amendments also establish more stringent requirements to obtain an administrative use permit.
“We’re trying to keep you out of those crosshairs,” Melching told the council, referring to the FCC’s narrow definitions.
The amended code defines “substantial change in physical dimensions” as that resulting in impact greater than the originally permitted installation. Judging whether an application constitutes substantial change will not be based on specific criteria, but will determined in context by the community development director, Melching said.
Meanwhile, the Planning Commission will still review applications for new wireless communications sites, as well as for changes to existing sites deemed “substantial.”
Council members balked at the lack of public notice requirements for granting of an administrative permit, which only requires noticing property owners within five days after approval. By comparison, proponents of projects subject to design review or requiring a conditional use permit must notify nearby property owners 10 days in advance of a public hearing about the project.
“So I could get a Dear John letter saying they’ve approved an 18-foot installation on a site in front of my home,” said Council member Toni Iseman, in disbelief that she would then have to pay for an appeal.
Mayor Kelly Boyd was equally disturbed at the prospects of facing infuriated residents forced to pay a $650 appeal to challenge something they only discovered after the fact.
Melcher said the city must abide by the federal rules for an administrative process, and cannot revise the noticing requirement. Asked if cell phone companies had challenged similar ordinances in other cities, Melcher said he had not yet heard of any lawsuits. But he attested to “severe browbeating” of city staff by telecom officials who cite the federal law and demand approval of their applications administratively.
Iseman suggested a fee waiver be written into the ordinance for residents appealing the administrative permits for cell tower improvements. City Manager John Pietig said a resolution to write a no-fee appeal into the ordinance could be included for its second reading. The ordinance would take affect 30 days after approval.