CC SR 20150901 E - Letter Opposing AB 57MEMORANDUM
TO: HONORABLE MAYOR & CITY COUNCIL MEMBERS
FROM: CAROLYNN PETRO, AICP, DEPUTY CITY MANAGED
DATE: SEPTEMBER 1, 2015
SUBJECT: LETTER OPPOSING ASSEMBLY BILL NO. 57 (AB 57)
REGARDING WIRELESS TELECOMMUNICATIONS
FACILITIES
REVIEWED BY: DOUG WILLMORE, CITY MANAGER
Project Manager: Kit Fox, AICP, Senior Administrative Analys
RECOMMENDATION
Authorize the Mayor to sign a letter opposing Assembly Bill No. 57 (AB 57) regarding
wireless telecommunications facilities, which could effectively usurp local control over the
permitting of such facilities in the City.
BACKGROUND
In December 2014, Assembly Bill No. 57 (AB 57) was introduced by 20th District State
Assemblymember Bill Quirk (Hayward). AB 57 started out as a mere placeholder bill
dealing with broadband communications infrastructure. At its introduction, the stated
purpose of AB 57 was to "state the intent of the Legislature to enact legislation to promote
the deployment of communications infrastructure by removing barriers to investment."
However, by the time that the bill had passed through the State Assembly (by a 66-4-10
vote) and on to the State Senate in May 2015, it had been amended to find that an
application for co -location or siting of a wireless telecommunications facility would be
automatically deemed approved if:
• A city or county fails to approve or disapprove the application within the time
periods established by the Federal Communications Commission (FCC) in In re
Petition for Declaratory Ruling, 24 FCC Rcd. 13994 (2009); and,
• All public notices regarding the application have been provided consistent with the
public notice requirements for the application.
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MEMORANDUM: Letter Opposing AB 57
September 1, 2015
Page 2
The bill then went further to state that "[the] Legislature finds and declares that a wireless
telecommunications facility has a significant economic impact in California and is not a
municipal affair as that term is used in Section 5 of Article XI of the California Constitution,
but is a matter of statewide concern." In the State Senate, AB 57 has been amended
further, most recently in its second reading on August 18, 2015 (see attachments). A
third and final reading of AB 57 is expected in the Senate at any time, after which it will
be returned to the Assembly for concurrence with the Senate's amendments.
The League of California Cites (League) has identified AB 57 as a "hot" bill and taken a
position opposing it on the basis that it would unnecessarily and significantly impact a
cities' authority to regulate the placement of certain wireless telecommunications facilities;
and that it exceeds the requirements of Federal law and regulations by deeming approved
any application for co -location or siting of new wireless facilities if a jurisdiction does not
approve or disapprove the application within the timelines required by the Federal
Communications Commission (FCC). Staff believes that the enactment of AB 57 has the
potential to adversely affect the City, so Staff presents a letter opposing the bill for the
City Council's consideration at tonight's meeting.
DISCUSSION
AB 57 goes beyond the requirements of Federal law and regulations by deeming
approved any application for co -location or siting of new wireless facilities if a jurisdiction
does not approve or disapprove the application within the timelines required by the FCC.
In 2009, the FCC adopted rules that require local governments to review and act on
applications for the establishment of wireless communications structures. Under that
ruling, cities have:
• Ninety (90) days to review co -location applications, and,
• One hundred fifty (150) days for other siting applications.
If cities do not act on the application within this timeframe, an applicant can bring action
in court. During the rulemaking process, wireless carriers requested that the FCC adopt
the "deemed approved" requirements that are now included in AB 57, but the FCC refused
to do so.
The issue was raised again in 2014 when the FCC reviewed requirements under a new
Federal rule, known as the "6409 Rule," regarding what is considered a "substantial
modification" to an existing wireless telecommunications facility. Again, the FCC refused
to enact a "deemed approved" rule. Staff is unaware of any evidence that special
circumstances exist in California that would require a special "deemed approved" rule that
is not required elsewhere in the country.
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MEMORANDUM: Letter Opposing AB 57
September 1, 2015
Page 3
Recent legislative analysis of AB 57 by the Senate Rules Committee raises a couple of
additional issues that are problematic for cities:
AB 57 is silent on several aspects relating to tolling the FCC "shot clock," including
whether the shot clock is tolled for environmental review pursuant to CEQA; public
notice as required by the State's open meetings laws (as opposed to the notice
that the applicants themselves are required to provide); and appeals of decisions
on wireless facilities to the legislative bodies of cities and counties (the FCC shot
clock is typically tolled (i.e., stopped) when an application is deemed incomplete
by a city or county, and then restarted when additional information is submitted to
complete an application). However, local governments may not be able to
complete those activities before an application is deemed complete under AB 57.
As a result, they face the difficult choice of cutting short these important processes,
reducing the time that they have to review applications, or denying permits and
facing litigation.
Federal law places the burden on wireless telecommunications carriers to bring
suit in Federal court if a local government does not act within a reasonable period
of time to prove that there was an unreasonable delay. AB 57 would shift that
burden to local governments to file suit to prevent a permit from being deemed
approved. Thus, in considering AB 57, State legislators are being asked to decide
whether the burden of proof and responsibility for seeking a remedy should fall on
private industry or public agencies.
It has always been the City's practice to review conditional use permit application for
wireless telecommunications facilities in a timely fashion that is consistent with the State's
Permit Streamlining Act and the FCC's shot clock rule. However, the enactment of AB 57
may make it more difficult for the City to do so while still subjecting these applications to
a level of discretionary review that adequately protects the public safety, health and
general welfare of the City's residents.
CONCLUSION
In conclusion, Staff recommends that the City Council authorize the Mayor to sign a letter
opposing AB 57. If adopted, Staff will transmit this letter to our State legislators and the
League.
ALTERNATIVES
In addition to the Staff recommendation, the following alternative action is available for
the City Council's consideration:
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MEMORANDUM: Letter Opposing AB 57
September 1, 2015
Page 4
Do not authorize the Mayor to sign a letter opposing AB 57. This is a "hot" bill that
the League and many California cities and counties are already opposing.
FISCAL IMPACT
There is no fiscal impact associated with authorizing the Mayor to sign this letter.
Attachments:
• Draft letter opposing AB 57 (Quirk) (page 5)
• AB 57 (Quirk), as amended on 8/18/2015 (page 7)
MALegislative Issues\AB 57(Quirk)\20150901_Staff Rpt_CC.docx
El
September 1, 2015
The Honorable Bob Hertzberg
Chair, Senate Governance and Finance Committee
State Capitol, Room 4038
Sacramento, CA 95814
RE: AB 57 (Quirk). Wireless Telecommunications Facilities. (as amended August 18, 2015)
Notice of OPPOSITION
Dear Senator Hertzberg:
On behalf of City of Rancho Palos Verdes, I regret to notify you of our opposition to AB 57 (Quirk), which
would unnecessarily and significantly impact cities' authority to regulate the placement of certain wireless
telecommunications facilities.
AB 57 goes beyond the requirements of Federal law and r
for co -location or siting of new wireless facilities if a 1
application within the timelines required by the FCC. In
governments to review and act on applications for the estat
Under that ruling, cities have ninety (90) days to review
(150) days for other siting applications. If cities do not
applicant can bring action in court. During the rulemaking
adopt the "deemed approved" requirements that are now i
The issue was raised again in 2014 when the FC
as the "6409 Rule," regarding what is consid
telecommunications facility, Again, the FCC rF
of any evidence that special circumstances e
approved" rule that is not required elsewhere in
Recent
that are
;gulations by deeming approved any application
risdiction does not approve or disapprove the
2009, the FCC adopted rules that require local
lishment of wireless communications structures.
co -location applications, and one hundred fifty
pct on the application within this timeframe, an
process, wireless carriers requested that the FCC
icluded in AB 57, but the FCC refused to do so.
iewed requirements under a new Federal rule, known
i "substantial modification" to an existing wireless
to enact a "deemed approved" rule. We are unaware
z California that would require a special "deemed
Committee raises a couple of additional issues
AB 57 is silent on several aspects_ relating to toiling the FCC "shot clock," including whether the
shot clock is tolled for enviromnental review pursuant to CEQA; public notice as required by the
State's open meetings laws (as opposed to the notice that the applicants themselves are required to
provide); and appeals of decisions on wireless facilities to the legislative bodies of cities and
counties (the FCC shot clock is typically tolled (i.e., stopped) when an application is deemed
incomplete by a city or county, and then restarted when additional information is submitted to
complete an application). However, local governments may not be able to complete those activities
before an application is deemed complete under AB 57. As a result, they face the difficult choice
of cutting short these important processes, reducing the time that they have to review applications,
or denying permits and facing litigation.
Federal law places the burden on wireless telecommunications carriers to bring suit in Federal court
if a local government does not act within a reasonable period of time to prove that there was an
unreasonable delay. AB 57 would shift that burden to local governments to file suit to prevent a
permit from being deemed approved. Thus, in considering AB 57, State legislators are being asked
to decide whether the burden of proof and responsibility for seeking a remedy should fall on private
industry or public agencies.
It has always been the City's practice to review conditional use permit application for wireless
telecommunications facilities in a timely fashion that is consistent with the State's Permit Streamlining Act
and the FCC's shot clock rule. However, the enactment of AB 57 may make it more difficult for the City
'6y
to do so while still subjecting these applications to a level of discretionary review that adequately protects
the public safety, health and general welfare of the City's residents.
For the reasons listed above, the City of Rancho Palos Verdes respectfully urges your opposition to this
bill.
Sincerely yours,
Jim Knight
Mayor
City of Rancho Palos Verdes
cc: Jeff Kiernan, Los Angeles Regional Public Affairs
Assemblymember David Hadley
Senator Ben Allen
Anton Favorini-Csorba, Consultant, Senate
FAX: (916) 322-0298
Ryan Eisberg, Principal Consultant, Senate'!
FAX: (916) 445-3105
Meg Desmond, League of California Cities,
on Governance and Finance
lican Caucus
0
AMENDED IN SENATE AUGUST 18, 2015
AMENDED IN SENATE JULY 8, 2015
AMENDED IN SENATE JULY 2, 2015
AMENDED IN ASSEMBLY APRIL 6, 2015
AMENDED IN ASSEMBLY MARCH 26, 2015
CALIFORNIA LEGISLATURE -2015-16 REGULAR SESSION
ASSEMBLY BILL No. 57
Introduced by Assembly Member Quirk
December 2, 2014
An act to add Section 65964.1 to the Government Code, relating to
telecommunications.
LEGISLATIVE COUNSEL'S DIGEST
AB 57, as amended, Quirlc. Telecommunications: wireless
telecommunication facilities.
Existing law requires a city, including a charter city, or county to
administratively approve an application for a collocation facility on or
immediately adjacent to a wireless telecommunications collocation
facility, as defined, through the issuance of a building permit or a
nondiscretionary permit, as specified. Existing law prohibits a city or
county from taking certain actions as a condition of approval of an
application for a permit for construction or reconstruction for a
development project for a wireless telecommunications facility.
Under existing federal law, the Federal Communications Commission
issued-a-raling rulings establishing reasonable time periods within which
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7
AB 57 —2—
a
2—
a local government is required to act on a collocation or siting
application for a wireless telecommunications facility.
This bill would provide that a collocation or siting application for a
wireless telecommunications facility is deemed approved if the city or
county fails to approve or disapprove the application within the
reasonable time periods specified in applicable decisions of the Federal
Communications Commission, all required public notices have been
provided regarding the application, and the applicant has provided a
notice to the city or county that the reasonable time period has lapsed.
Vote: majority. Appropriation: no. Fiscal committee: no.
State -mandated local program: no.
The people of the State of California do enact as follows:
1 SECTION 1. Section 65964.1 is added to the Government
2 Code, to read:
3 65964.1. (a) A collocation or siting application for a wireless
4 telecommunications facility, as defined in Section 65850.6, shall
5 be deemed approved if all of the following occur:
6 (1) The city or county fails to approve or disapprove the
7 application within a reasonable period of time in accordance with
8 the time periods and procedures established by applicable FCC
9 decisions. The reasonable period of time may be tolled to
10 accommodate timely requests for information required to complete
11 the application or may be extended by mutual agreement between
12 the applicant and the local government, consistent with applicable
13 FCC decisions.
14 (2) The applicant has provided all public notices regarding the
15 application that the applicant is required to provide under
16 applicable laws consistent with the public notice requirements for
17 the application.
18 (3) (A) The applicant has provided notice to the city or county
19 that the reasonable time period has lapsed and that the application
20 is deemed approved pursuant to this section.
21 (B) Within 30 days of the notice provided pursuant to
22 subparagraph (A), the city or county may seek judicial review of
23 the operation of this section on the application.
24 (b) This section does not apply to eligible facilities requests.
25 (c) The Legislature finds and declares that a wireless
26 telecommunications facility has a significant economic impact in
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-3— AB 57
1 California and is not a municipal affair as that term is used in
2 Section 5 of Article XI of the California Constitution, but is a
3 matter of statewide concern.
4 (d) As used in this section, the following terms have the
5 following meanings:
6 (1) "Applicable FCC decisions" means In re Petition for
7 Declaratory Ruling, 24 FCC Red. 13994 (2009) and In the Matter
8 ofAcceleration of Broadband Deployment by Improving Wireless
9 Facilities Siting Policies, Report and Order, 29 FCC Red. 12865
10 , as they may be modified or sttperseded by subseqtient
11 a,.,.isions or the Federal r,..,......unieations Commission. (2014).
12 (2) "Eligible facilities request" has the same meaning as in
13 Section 1455 of Title 47 of the United States Code.
14 (e) Except as provided in subdivision (a), nothing in this section
15 limits or affects the authority of a city or county over decisions
16 regarding the placement, construction, and modification of a
17 wireless telecommunications facility.
18 (fi Due to the unique duties and infrastructure requirements for
19 the swift and effective deployment offirefighters, this section does
20 not apply to a collocation or siting application for a wireless
21 telecommunications facility where the project is proposed for
22 placement on fire department facilities.
Ir,
94
AV