This project was reviewed pursuant to the guidelines of the California Environmental Quality Act (CEQA) and determined to be Exempt pursuant to Section 15061(b)(3) of the California Environmental Quality Act Guidelines which covers activities with no possibility of having a significant effect on the environment.

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF LA HABRA RECOMMENDING THAT THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING ZONE CHANGE 20-05 FOR AMENDMENTS TO TITLE 18 ZONING, CHAPTER 18.62 WIRELESS COMMUNICATIONS FACILITIES, AS PER EXHIBIT “A”

On September 29, 2020, Governor Newsom approved Assembly Bill (AB) 2421 (Quirk) which requires local agencies to make the installation of an emergency standby generator for cell tower sites on private property a permitted use and require a local agency to review an application for installation on an administrative, non-discretionary basis.  The specific requirements include:

• The emergency standby generator is rated below 50 horsepower, compliant with applicable air quality regulations, has a double-wall storage tank, not to exceed 300-gallons, and is mounted on a concrete pad.
• The macro cell tower site at which the emergency standby generator is proposed to be installed is an existing site that was previously permitted by the applicable local agency.  This does not include roof-top mounted wireless facilities.
• The emergency standby generator complies with all applicable state and local laws and regulations, including building and fire safety codes.
• The physical dimensions of the emergency standby generator and storage tank are cumulatively no more than 250 cubic feet in volume.
• The emergency standby generator shall be located not more than 100-feet from the physical structure of the macro cell tower or base station.

 AB 2421 specified that a local agency could develop procedures for processing permit applications and authorized local agencies to impose a fee to cover costs associated with administering the bill’s provisions.  Currently, the La Habra Zoning Code does not contain specific language for the installation of emergency standby generators for wireless facilities placed on private property.

To date, requests to install standby generators were processed through a Conditional Use Permit.  Generally, these generators were "Conditioned" to be hidden from view by being placed within a masonry enclosure.  Also, noise from running generators was required to be minimized by ensuring that the equipment didn’t exceed the City's noise standards and that maintenance "run-ups" were conducting during the middle of workdays.

The draft ordinance implements the State's requirements and lays out the process for applying for review of a new standby generator.  The language in Section 18.62 specifies that the code is only applicable to "macro cell tower sites" which means a free-standing wireless facility, such as a mono-tower, mono-palm, mono-pine or mono-eucalyptus.  Roof mounted facilities whereby antennas are hidden in existing buildings aren't included in the State law and therefore aren't included in this section.  There are 13 facilities within La Habra that fit the macro facility requirement.

The code section specifies the requirements for standby generators that qualify for approval under this ordinance.  This includes the specifications that the generator is rated at 50 horsepower or less, that the fuel tank not exceed 300-gallons, that the generator be mounted on a concrete pad, that the generator be within 100-feet of the wireless tower, and that the size of the generator and fuel tank not exceed 250 cubic feet.   Lastly, the generator must comply with local laws and regulations, which would include building, fire, and noise.

The review of a new standby generator would be processed via the Administrative Adjustment application form.  As is normally done, staff will require the submittal of a sound study to determine that the installation meets the City's noise standards.  Per AB 2421, staff is required to determine that a submittal is complete within 10 days or provide a written correction letter.   Once the application is deemed complete, staff must approve the application within 60 days, otherwise the application is deemed approved.

There is no impact the City's General Fund as a result of this action.

A zoning code Amendment is exempt from the requirements of the City’s National Pollution Discharge Elimination System (NPDES) since no actual construction is proposed at this time.

The installation of emergency generators at wireless facilities provides better redundancy for telecommunications during emergency and disaster situations.   This is particularly true for our area which is prone to earthquakes and wildfires.  Updates to Chapter 18.62 Wireless Communication Facilities accomplishes the State requirements to make the installation of emergency standby generators at existing macro wireless facilities a ministerial action as well as meet the City's General Plan policies.  

The projects implement Policies T 1.1 (Adequate Facilities and Availability of Services), T 1.2 (Access to Information), T 1.3 (State-of-the-Art Telecommunication Technologies),  T 1.4 (Regulation of Service Providers), T 1.6 (Regulation of Wireless Communication Facilities), T 1.7 (Design and Site), and T 1.8 (New Utility Infrastructure) of the General Plan 2035.
 

RELATED CASES

• On March 20, 1905, the State of California adopted Section 536 of the California Civil Code allowing telephone companies to place their poles and wires in the public rights-of-way.  In 1951, the State of California re-codified Section 536 as the California Public Utilities Code 7901, which allowed telephone corporations to construct lines of telegraph or telephone lines along and upon any public road or highway to include poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines (wireless companies fit in this section).  In 1994, Section 7901.1 was added that stated “that municipalities shall have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed” which allowed cities to require Conditional Use Permits and/or encroachment permits for wireless facilities to be placed in the public right of way.

• On April 23, 1996, Congress approved the Telecommunications Act of 1996, which enacted sweeping new provisions intended to facilitate the deployment of telecommunications infrastructure.

• On April 16, 2001, the City Council approved Ordinance 1585 adopting Chapter 18.37 “Wireless Communication Facilities” in the La Habra Municipal Code.

• On October 3, 2011, the City Council approved Ordinance 1727 (Zone Change 11-01), amending Chapter 18.62.060 “Standards of Development” for wireless communications facilities in the La Habra Municipal Code.

• On February 22, 2012, Congress adopted the Middle Class Tax Relief and Job Creation Act, that included a rider as Section 6409 (the Spectrum Act), which further limited state and local laws from creating barriers to wireless infrastructure deployment.

• On December 2, 2013, the City Council approved Ordinance 1748 (Zone Change 13-02) amending wireless regulations within Chapters 18.62.020 “Definitions”, 18.62.040 “Permit Required”, and 18.62.055 “Modification of Existing Wireless Facilities” in the La Habra Municipal Code.

• On April 15, 2019, the City Council approved Ordinance 1806 (Zone Change 19-01) by amending Chapter 18.62 Wireless Communications Facilities and adding Chapter 18.63 Small Wireless Facilities in the Public Right-of-Way to the La Habra Municipal Code pursuant to the requirements of the FCC’s Declaratory Ruling and Third Report and Order.

REQUIRED FINDINGS

Amendments to Title 18 Zoning must be consistent with State and Federal Laws.  The proposed code amendment is consistent with the requirements contained with AB 2421.  Additionally, the amendment is consistent with goals and policies found within the La Habra General plan, which is provided in the attached resolution (see Resolution, attachment 1).  The City Attorney's office has reviewed the amendment and approved the verbiage within it.   Therefore, Staff recommends that the Planning Commission recommend the City Council approve Zone Change 20-05.