City to modify wireless codes

City to modify wireless codes
T-Mobile USA recently sought a conditional use permit to replace antennas in the tower atop the train station. A public hearing was required but it was just a formality because a new federal law trumps the city's municipal code so council had no choice but to approve the project. Photo by Bianca Kaplanek

SOLANA BEACH — After holding a public hearing for a project they had no choice but to approve, council members directed the city attorney at the Dec. 5 meeting to come back with options for modifying the existing code to avoid such pointless procedures. 

T-Mobile USA was seeking to replace six antennas located in a tower at the train station on Cedros Avenue. The updated equipment will provide 4G data transmission and voice and receiving transmission.

The municipal code requires a conditional use permit, and thus a public hearing, for all wireless communication facilities. But that law is trumped by the Middle Class Tax Relief and Job Creation Act of 2012, which prohibits local governments from denying modification requests to such facilities.

“We’re hearing something because we have council policy,” Councilwoman Lesa Heebner said. “But even if we had all sorts of problems with it we could do nothing.

“Is this going to be what we’re … doing is reviewing things in public hearings that we have no say over anyway or is there some way to fix this discord between the two?” she asked.

City Attorney Johanna Canlas said the city could amend its ordinance to provide options such as administrative approval for this type of project.

She said she could also look into incorporating specific changes to the existing city policy to allow council members some discretion over certain terms of a project.

However, the federal act is so new, it hasn’t been tested in the courts, so there is no case law to set a precedent on how other jurisdictions are dealing with the mandate, Canlas said.

To avoid excessive legal costs, Councilman Tom Campbell told Canlas to first present a memo with points of consideration for modifying the existing code.

The new antennas will not be visible to the public. They are located in the tower on property owned by North County Transit District. All such facilities must also comply with Federal Communications Commission regulations.

 

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