BILL ANALYSIS Ķ
SENATE COMMITTEE ON GOVERNANCE AND FINANCE
Senator Robert M. Hertzberg, Chair
2015 - 2016 Regular
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|Bill No: |AB 57 |Hearing |7/15/15 |
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|Author: |Quirk |Tax Levy: |No |
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|Version: |7/8/15 |Fiscal: |No |
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|Consultant|Favorini-Csorba |
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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
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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
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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.
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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
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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
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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.
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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
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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 Caņada 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
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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.
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