Tuesday, July 21, 2015

AB 57 Analysis

 I had sent this out a few weeks ago- and just saw this link on the CA site:



Deborah Kopald 


SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |AB 57 |Hearing |7/15/15 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Quirk |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |7/8/15 |Fiscal: |No | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Favorini-Csorba | |: | | ----------------------------------------------------------------- TELECOMMUNICATIONS: WIRELESS TELECOMMUNICATIONS FACILITIES Deems approved applications for wireless facilities if local governments do not approve or deny the applications within a specified time period. Background and Existing Law Land Use Regulation. The California Constitution allows a city to "make and enforce within its limits, all local, police, sanitary, and other ordinances and regulations not in conflict with general laws, known as the police power of cities." It is from this fundamental power that local governments derive their authority to regulate land through planning, zoning, and building ordinances, thereby protecting public health, safety and welfare. The Planning and Zoning Law requires every county and city to adopt a general plan that sets out planned uses for all of the area covered by the plan. Cities' and counties' major land use decisions-including development permitting-must be consistent with their general plans. The Planning and Zoning Law also requires public notice to be given at least 10 days in advance of hearings where most permitting decisions will be made. It also allows residents to appeal permitting decisions and other actions to either a board of appeals or the legislative body of the city or county. Cities and counties may adopt ordinances AB 57 (Quirk) 7/8/15 Page 2 of ? governing the appeals process. Providers of wireless telecommunications services ("carriers") must apply to cities and counties for permits to build structures or other wireless facilities that support wireless telecommunications equipment, like antennae and related devices. Similarly, wireless carriers must seek local approval to place additional telecommunications equipment on structures where that equipment already exists, known as "collocations." Federal Requirements for Local Decisions on Wireless Facilities. Two federal laws, the Telecommunications Act of 1996 and the Spectrum Act, require local governments to act within a "reasonable period of time" on permits for siting wireless facilities. The Federal Communications Commission (FCC) is responsible for administering these laws and implementing this requirement. Accordingly, in 2009 and 2014, the FCC issued two decisions to clarify, among other things, the definition of a period of time that is presumed to be reasonable for various categories of wireless telecommunications facilities. Specifically, the FCC established a so-called "shot clock" by ruling that local governments should generally approve or disapprove applications for projects within: 60 days for a project that is an "eligible facilities request" under Section 1455 of Title 47 of the United States Code. An eligible facilities request is defined by the FCC as a collocation on an existing facility that does not substantially change its physical dimensions. In practice, these types of applications could include locating additional equipment cabinets on a rooftop that already has wireless facilities. 90 days for a project that is a collocation that substantially changes the dimensions of the facility, but do not substantially change its size. For example, this could include a project that increases the height of a tower in a public right of way by more than 10%. 150 days for projects that are new sites for wireless facilities. The FCC also identified remedies in cases where local governments do not act within those periods. For collocations that do not change the physical dimensions, the application is "deemed approved"-the permit is automatically granted if a local government has not acted on the application. However, for all AB 57 (Quirk) 7/8/15 Page 3 of ? other types of applications, the FCC specifically declined to adopt a deemed-approved remedy because the circumstances of wireless facility applications can vary greatly. Instead, the FCC specified that if a local government does not act within the reasonable time period for collocations that change the physical dimensions or for new sites, an applicant may bring an action in federal court within 30 days of the reasonable time period elapsing. The court then determines whether the delay was unreasonable under all circumstances of the case and, if necessary, identifies an appropriate remedy. The FCC decisions also clarified procedures for pausing, or tolling, the shot clock by specifying circumstances when the passage of time counts against the time that a local government has to act on an application and when it does not. Specifically, the decisions provide that: When the application is filed, the clock begins to run. Within the first 30 days, the local government must notify the applicant if the application is incomplete and must reference the specific ordinance or other policy that established the requirement for that information. At that point, the clock will be tolled (stopped) until the information is submitted. Once the applicant submits additional information, the local government has 10 days to review the new information and notify the applicant that the supplemental submission did not provide the specific information requested. At that point, the clock is tolled again until the requested information is submitted. The clock can continue to be tolled if subsequent information provided by the applicant does not address the deficiencies identified within the first 30 days, but not for any newly-identified incomplete information. Once the applicant has submitted all of the requested information in the initial request by the local government, the clock runs until it reaches the deadline for that particular type of wireless facility. The decisions further clarified that the reasonable period of time may be extended if the carrier and the local government agree. In those cases, the 30-day period for the applicant to challenge the local government's action is tolled as well. State Requirements for Local Decisions on Wireless Facilities. AB 57 (Quirk) 7/8/15 Page 4 of ? State law also specifies timelines for approvals of wireless facilities. Specifically, the 1977 Permit Streamlining Act requires public agencies to act fairly and promptly on applications for development permits, including wireless facilities. Public agencies must compile lists of information that applicants must provide and explain the criteria they will use to review permit applications. Public agencies have 30 days to determine whether applications for development projects are complete; failure to act results in an application being "deemed complete." However, local governments may continue to request additional information, potentially extending the time before the shot clock begins running. Once a complete application for a wireless facility has been submitted, the Act requires local officials to act within a specific time period after completing any environmental review documents required under the California Environmental Quality Act. Specifically, local governments must act within (1) 60 days after completing a negative declaration or determining that a project is exempt from review, or (2) 180 days after certifying an environmental impact report (EIR). If the local government fails to approve or disapprove the application in the applicable time period, the application is deemed granted, and the applicant may file suit in state court to order the local government to issue the permit. Interaction between Federal and State Requirements. These state and federal processes run separately, such that the shot clock may run under one law, while not running under the other. For example, under the Permit Streamlining Act, all CEQA work must be completed prior to the start of the shot clock. By contrast, under the FCC decisions, some CEQA work may need to be completed while the clock is running, such as in a case where a local government suggests a new location to a developer. In addition, an application must be complete before the shot clock starts under the Permit Streamlining Act, while under the FCC decisions the shot clock starts when an application is filed. Because of these differences in the way the shot clock runs under state and federal law, federal law is more frequently used by wireless carriers to compel local government action on wireless facilities, even though the remedy is stronger under state law. Some lawmakers want to change the remedy that wireless carriers may invoke when local governments do not act AB 57 (Quirk) 7/8/15 Page 5 of ? on wireless facility applications. Proposed Law Assembly Bill 57 provides that an application for a collocation or new siting of a wireless telecommunications facility shall be deemed approved if all of the following conditions occur: The city or county reviewing the application does not approve or disapprove the application within a reasonable period of time, as defined by the applicable FCC decisions and any updates to those decisions. The applicant has provided any public notice that it is required to provide under applicable laws. The applicant has notified the city or county that the reasonable time period has lapsed and that the application is deemed approved. A local government, within 30 days of receiving the deemed-approved notice, can ask a court to review the applicant's use of the deemed-approved remedy. AB 57 also allows the shot clock to be tolled as described in the FCC decisions and allows the reasonable time period to be extended if both the applicant and the city or county agree. Finally, the bill specifies that it does not apply to eligible facilities requests, as defined under federal law. State Revenue Impact No estimate. Comments 1. Purpose of the bill . Demand for wireless service and the associated bandwidth is rising rapidly. For example, between 2012 and 2013, transmission of wireless data grew by 120%, and more than 1 in 3 California households use only wireless devices. Additional antennae, cell towers, and other wireless facilities must be built to meet those needs. However, wireless carriers face significant challenges and delays while navigating local governments' permitting processes for these facilities. AB 57 is a straightforward solution to these challenges. By deeming applications approved if local governments fail to approve or deny the application, AB 57 provides certainty about AB 57 (Quirk) 7/8/15 Page 6 of ? timing to wireless carriers that seek to build additional wireless facilities. Local governments retain their ability to deny permits for legitimate reasons and impose aesthetic requirements or other conditions on cell sites. In addition, because local governments can still deny permits, it is in the best interest of carriers to take advantage of AB 57's provision to extend the shot clock by mutual consent in order to work out viable compromises with carriers or complete environmental review under CEQA. AB 57 simply provides important guidelines and appropriate balance to keep the permit process moving. 2. Home rule . The collocation and siting of wireless telecommunications facilities are matters best addressed by local governments. When considering the siting of wireless facilities, local governments must balance competing concerns over wireless service adequacy, health and safety, and aesthetics. In addition, local governments must make decisions on many types of development permit applications within the timelines specified by the Permit Streamlining Act and other state laws-not just wireless sites. AB 57 significantly reduces local governments' flexibility to balance these various considerations by going beyond what federal law requires. Specifically, the FCC declined to adopt a "deemed-approved" remedy such as the one in AB 57 precisely because of these considerations. Moreover, AB 57 does not contain the same protections of local government's land use authority that are included in federal law. The Committee may wish to consider amending AB 57 to codify similar protections in state law. These amendments could include provisions that clearly state that the bill does not prohibit local governments from approving or denying permits, imposing conditions on permits, or regulating the placement of wireless telecommunications facilities on public buildings. 3. For whom the clock tolls . AB 57 is silent on several aspects relating to tolling the 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; Appeals of decisions on wireless facilities to the legislative bodies of cities and counties. AB 57 (Quirk) 7/8/15 Page 7 of ? 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. In order to ensure that there is adequate time for these processes to proceed and for local governments to consider applications, the Committee may wish to consider amending AB 57 to allow the shot clock to be tolled while these processes occur. 4. Burden shifting . Federal law places the burden on 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, 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. The Committee may wish to amend AB 57 to specify that in order for an applicant to act on a permit that has been deemed approved, the applicant must file suit to demonstrate that the permit process was unreasonably delayed. Such an amendment would still allow for the use of the deemed-approved remedy by applicants. 5. Charter cities . The California Constitution allows cities that adopt charters to control their own "municipal affairs." In all other matters, charter cities must follow the general, statewide laws. Because the Constitution doesn't define "municipal affairs," the courts determine whether a topic is a municipal affair or whether it's an issue of statewide concern. AB 57 includes a legislative finding and declaration that a wireless telecommunications facility has a significant economic impact in California and is a matter of statewide concern. Accordingly, the bill's provisions apply to all cities and counties in California, including charter cities and counties, although the bill does not explicitly state it. 6. Incoming! The Senate Energy, Utilities, and Communications Committee passed AB 57 by a vote of 8-1 on June 16th, 2015. Assembly Actions AB 57 (Quirk) 7/8/15 Page 8 of ? Assembly Rules Committee: 11-0 Assembly Local Government Committee: 7-0 Assembly Floor: 66-4 Support and Opposition (7/9/15) Support : AT&T; Bay Area Council; California Asian Pacific Chamber of Commerce; California Hispanic Chambers of Commerce; California Chamber of Commerce; California Manufacturers & Technology Association; California Wireless Association; CTIA - The Wireless Association; California Chamber of Commerce; Los Angeles Area Chamber of Commerce; National Emergency Number Association - The 911 Association; Orange County Business Council; PCIA - The Wireless Infrastructure Association; Silicon Valley Leadership Group; Southwest California Legislative Council; Sprint; T-Mobile; TechAmerica; TechNet; Valley Industry and Commerce Association; Verizon; World Institute on Disability. Opposition : American Planning Association - California Chapter; Association of Environmental Professionals; Brentwood Community Council; BVW; California Professional Firefighters; California State Association of Counties; Center to Keep Healthy Families; City and County of San Francisco; City of Berkeley; City of Beverly Hills; City of Burbank; City of Calabasas; City of Camarillo; City of Cerritos; City of Corona; City of Culver City; City of Diamond Bar; City of Fremont; City of Glendale; City of Huntington Beach; City of La Ca�ada Flintridge; City of La Quinta; City of Laguna Beach; City of Lake Forest; City of Los Angeles; City of Norwalk; City of Ontario; City of Oxnard; City of Pico Rivera; City of Piedmont; City of Rancho Cucamonga; City of Roseville; City of San Dimas; City of San Gabriel; City of San Rafael; City of Seaside; City of Thousand Oaks; City of Torrance; City of Vista; City of Walnut Creek; City of Whittier; County of Alameda; County of San Bernardino; County of Imperial; County of Marin; County of Monterey; County of Los Angeles; County of San Diego; County of Stanislaus; County of Ventura; Ecological Options Network; Intersight, LLC; League of California Cities; Los Angeles County Firefighters Local 1014; Marin County Council of Mayors and Council; Marin Telecommunications Agency; Mast Victims; National Association for Children and Safe Technology; North Hollywood Neighborhood Watch; Pacific Palisades Community Council; Palisades AB 57 (Quirk) 7/8/15 Page 9 of ? Preservation Association; Rural County Representatives of California; San Francisco Firefighters, Local 798; Stop Smart Meters!; Town of Fairfax; Town of Hillsborough; Town of Tiburon; Urban Counties Caucus; Windheim EMF Solutions; Wireless Radiation Alert Network; Dr. Cindy Russell; Elizabeth Skolnik; Ellen Marks; Jenny Miller; Larry Parish; Mark Graham; Shelley Masters; Virginia Farver; Virginia Arnold; Kathy Zavada; J. Petzold; Cheriel Jensen; Gerry Gras; Deborah Kopald; Jon Newland; Victoia Hoekstra; Shannon Bishop; Alex Stadtner; Jerry Cady; Sabine Dherbecourt; Kim Johnson; Lousie and Jay Stanphill; Rola Masri. -- END --

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