Loading...
Item 3.2 ADDITIONAL MATERIAL posted 7/31/14City Of Poway -j OF PO��r MEMORANDUM C'IN THE C0J ADDITIONAL MATERIAL DATE: August 5, 2014 TO: Honorable Mayor and Members of the City Council FROM: Daniel Singer, City Manager Z'.2 INITIATED BY: Robert J. Manis, Director of Development Services/` Jason Martin, Senior Planner SUBJECT: Environmental Assessment and Zoning Ordinance Amendment (ZOA) 14 -002, an Ordinance of the City of Poway, California, amending the Poway Municipal Code pertaining to regulations for amateur radio antenna installations in residential areas; and a Resolution amending the Master Fee Schedule to establish processing fees pertaining to antenna permits and appeals. The attached information has been submitted regarding the proposed regulations for amateur radio antenna installations (i.e., antenna installations). The main comments are summarized and responded to as follows: Comment 1: In the correspondence it is indicated that Ordinance 2 (of the two optional Ordinances that have been provided to City Council for consideration) is in violation of State and Federal law, and that Ordinance 1 should be approved with some suggested modifications. Response 1: The City Attorney has reviewed both Ordinance 1 and Ordinance 2, and has indicated that, as proposed, neither conflicts with State or Federal law. Comment 2: In the correspondence it is indicated that the proposed finding associated with approval or denial of a Minor Antenna Permit is subjective. Response 2: The Minor Antenna Permit is a "discretionary" permit and, as such, staff uses its best professional opinion, while considering all submitted materials, in determining if the permit findings are met. Comment 3: In the correspondence it is suggested that the notice of a pending Building Permit for an antenna installation to be provided to contiguous property owners by the applicant, should be provided by the City instead. Response 3: Notice to contiguous property owners of a pending Building Permit for an antenna installation to be provided by the applicant was initially proposed by the 1 of 9 August 5, 2014 Item # 3.2 ZOA 14 -002 Regulations for Amateur Radio Antenna Installations August 5, 2014 Page 2 amateur radio antenna representative and was discussed at the May workshop. The City does not provide notice to the public of pending Building Permits. The cost of such an activity is not included in the Building Permit fee. Additionally, if such a notice came from the City it could give the recipient the false impression that they have an opportunity to affect the Building Permit outcome when, in fact, if the proposal complies with the CBC and other City requirements the building permit will be issued. The notice is intended to have the applicant let the neighbors know of his /her proposed antenna installation. Comment 4: In the correspondence it is suggested Ordinance 1 stipulate that Building Permit applications for antenna installations be approved within 10 days of submittal. Response 4: Antenna installations that are subject to the requirement to obtain a Building Permit must be designed to comply with the California Building Code (CBC) requirements, which are ensured as part of the building plan review process. If the initial submittal complies, the building permit can be issued usually in less than 10 days. On occasion, however, plans are returned to the applicant after the first plan check with a list of corrections and /or modifications that are necessary to demonstrate compliance with the CBC. The applicant and /or their designer then updates the plans on their own timeline, and then resubmits the plans to the City for re- check. It is not possible for the City to ensure that this potential two -sided process can be completed and a Building Permit approved within 10 days. Accordingly, such a stipulation should not be in the Poway Municipal Code. The current City contract for private building plancheck services does stipulate that planchecks are to be completed within 12 days of the submittal of a permit application. The City's experience, however, is that a typical building plan check is between 5 -10 days. Comment 5: In the correspondence it is suggested that Ordinance language pertaining to City Council action on an Antenna Permit be changed to "shall" instead of "may ". Response 5: While it is possible for the City Council to deny an Antenna Permit if the findings cannot be made, staff is recommending the language in Section 17.31.060 of Ordinance 1 and Section 17.31.070 of Ordinance 2 be modified as follows with deletions shown in strikeout and additions shown underline: Antenna Permit Findings. The City Council shall make the following findings before approving an Antenna Permit for W+hRieRna PeFrnit, the Gn , G,,,,RGil may autheFmze an antenna installation greater than 65 feet in height and /or an antenna installation that does not comply with the provisions of Sections 17.31.030 B and C of this Chapter U . A. The design of the proposed antenna installation is the minimum necessary for the reasonable accommodation of the communication needs of the operator as set forth in Federal and /or State rules and regulations; and 2 of 9 August 5, 2014 Item # 3.2 ZOA 14 -002 Regulations for Amateur Radio Antenna Installations August 5, 2014 Page 3 B. There are no other feasible alternatives. The applicant shall provide evidence necessary to document that the above findings can be met. In order to be consistent staff is additionally recommending that Section 17.31.060 of Ordinance 2 be modified as follows: Minor Antenna Permit Findings. The Director of Development Services shall make the following findings before approving a Minor Antenna Permit for With a Minor Antenna Permit the— DireGtOF of Development SeFViGes may aut#e +ze an antenna installation which is 35 feet up to 65 feet in height upon the findings that the antenna facility has been sited to minimize the potential for visual impact to surrounding properties to the extent that is feasible. Comment 6: In the correspondence it is suggested that the types of antenna installations to be exempted from the regulations be expanded with specific suggestions provided. Response 6: Staff contacted the author for clarification on the suggestions provided. Staff is recommending that Section 17.31.070 in Ordinance 1 and Section 17.31.080 of Ordinance 2 be modified as follows with additions shown underline:. Exempt Antenna Installations. The following shall be exempt from the requirements of this Chapter: A. Antenna installations legally established prior to the effective date of this Ordinance. Any increase in height to an existing antenna installation shall be subject to the requirements of this Chapter, including the requirement to obtain an Antenna Permit if the increased height is greater than 65 feet. B. Any antenna installation that is six feet or less in any dimension and not located within any front yard or street side yard setback area. C. Guy -wire supports for an antenna support structure, and not located within any front yard or street side yard setback area. D. Wire antenna of gauge number 12 or less affixed to a structure, other antenna, or tree, and not located within any front yard or street side yard setback area. E. One temporary, non - permanently affixed, ground- mounted antenna installation up to 20 feet in height which is not located within any setback area that is required pursuant to the site's underlying zoning designation. 3 of 9 August 5, 2014 Item # 3.2 ZOA 14 -002 Regulations for Amateur Radio Antenna Installations August 5, 2014 Page 4 F. Building- mounted antenna installations up to 10 feet above the roofline, but no more than 35 feet in height with horizontal elements that are no areater than 6 feet. Comment 7: In the correspondence it is suggested that the cost of an Antenna Permit be 10% of the antenna installation cost. Response 7: An Antenna Permit is a discretionary permit that will involve staff analysis, neighbor input, and a public hearing. At the May Workshop it was indicated that the Antenna Permit is very similar to a Minor Conditional Use Permit in terms of process, but that an Antenna Permit would be less complicated. The MCUP cost is $1,542. Since the Antenna Permit is less complicated it would need less staff time to evaluate and process. This was translated into a fee reduction of 15% for a proposed Antenna Permit fee of $1,300. Attachment A. Correspondence 4 of 9 August 5, 2014 Item # 3.2 �teur k7Z40 FOUNDED 1971 / Poway Amateur Radio Society Comments On Poway Draft Ordinances Pertaining To Amateur Radio Antennas July 20, 2014 5 of 9 August 5, 20141 Item # 3.2 This letter conveys the Poway Amateur Radio Society's (PARS) comments related to the two proposed draft ordinances affecting Amateur Radio Antennas that will be considered by the Poway City Council at the August 5th, 2014 City Council meeting. These ordinances correspond to the direction given by the Poway City Council at the Poway City Council meetings of May 6th, 2014. For purposes of brevity, this letter will refer to the proposed ordinances as "Version One" and "Version Two." Version One states: "Antenna installations up to 65 feet in height are permitted without the requirement to obtain an antenna permit..." Version Two states: 'Antenna installations which are 35 feet in height and up to 65 feet in height shall require a Minor Antenna Permit pursuant to Section 17.31.040...." PARS thanks the City Council, the City Planning and Development Services Department, and the City Attorney for the attention devoted to the matter of amateur radio installation permits, and the associated effort of bringing Poway into compliance with Federal and State regulations pertaining to amateur radio. Though each version of the draft ordinance eliminates the existing blanket pre- emption of antenna installations over 35 feet in Poway, Version Two fails to meet the minimum practicable regulation standard set forth in PRB -1. This letter addresses this shortcoming and suggests several minor tweaks to improve Version One. Introduction In preparation for the aforementioned City Council meetings, PARS provided the City with an extensive technical analysis detailing amateur radio communications throughout Poway. This study defined effective long range communications as those which permitted a 90 percent connection rate. The analysis scientifically proved that when considering Poway's topography, and addressing all the elements affecting high frequency radio propagation, the average antenna height required in Poway for effective long range communications is 200 feet. No substantive rebuttal investigating the actual topographic characteristics of Poway was offered in opposition. Upon consultation with Poway licensed radio amateurs experienced in erecting antenna installations in this region, PARS proposed to the City a compromise antenna height of 65 feet approved through a building permit process and with 6 of 9 August 5, 20142 Item # 3.2 notification to neighbors within a 500 foot radius. It is upon this proposal that the Council directed staff to prepare the subject ordinances (i.e. Version One and Version Two). PARS does not suaoort Version Two Version Two introduces an unnecessarily cumbersome antenna approval process for radio amateur applicants desiring heights between 35 feet and 65 feet. This proposed ordinance fails to increase the efficiency of the antenna installation approval process, an objective that was sought by PARS and the City Council. It instead requires a non - ministerial Minor Antenna Permit approval mechanism for those installations over 35 feet but under 65 feet, adding cost to both the City and the applicant without purpose or benefit. As a discretionary process, Version Two will slow down applications by demanding additional staff review time, and otherwise encumber such applications by permitting appeals of staff -level approvals to the Council. These obstacles may turn off certain applicants and increase the financial burden on what is intended to be a low -cost hobby. As PARS has conveyed previously, many amateur radio operators are volunteers assisting in emergency services so any such. reduction in applicants is an inherent detriment to the City of Poway. Further, Version Two fails to provide the Council criteria for denial of a Minor Antenna Permit so long as the antenna is "sited to minimize the potential for visual impact to surrounding properties to the extent that is feasible." (See Version Two at section 17.31.060.) Determining whether this criteria is met is squarely within the ambit of Development Services staff who have the ability to closely examine plans and provide appropriate guidance — the Council can add no expertise to such an effort. In short, where the sole finding for a Minor Antenna Permit is siting this is best left as a ministerial process, much as it is in Version One. Our opposition to Version Two is not solely an issue of practicality and efficiency. Version Two also runs afoul of Federal and State law. Both 47 Code of Federal Regulations Section 97.15(b) section 25 and California Government Code section 65850.3 pre - emptively require cities to use the minimum practicable regulation necessary to accomplish legitimate purposes. Version One reflects a well- reasoned and practicable mechanism to approve installations up to 65 feet given the scientific evidence before the City. Whereas Version Two adds potentially two layers of bureaucracy (i.e. discretionary approval by the Development Services Director and an appeal to the Council) for those installations falling between 35 and 65 feet. The fact that Version One affords a demonstrably effective means to regulate such installations impliedly provides that Version Two is not the minimum practicable regulation. We suggest the Council outright reject Version Two. 7 of 9 August 5, 2014 3 Item # 3.2 PARS members support Version One with minor revisions. Version One largely reflects the request PARS made to the City Council at the May 6th, 2014 hearing — an expedient, low -cost ministerial process for up to 65 foot installation heights necessary to carry out effective long range' communications in Poway. Installations over 65 feet, multiple installations, and installations within setbacks will require discretionary approval from the Council. These provisions are reasonable based upon the technical evidence and legal precedent presented to the City. Thus, Version One is largely acceptable to PARS. However, PARS objects to several aspects of Version One which can be easily corrected. These include: A. PARS members are willing to further compromise on the notice to the public of intention to install an amateur radio antenna. We propose changing section 17.31.050 to state: For antenna installations up to 65 feet in height, which require a Building Permit, upon submission of a complete application for a building permit under Chapter 17.31, the Development Services Department shall: .a) Provide notice of the applicant's intention to all contiguous property owners; and b) Interface with the Building Department to grant the building permit within 10 days of the issuance of the notification. B. The permissive language describing the approval of an Antenna Permit. Version One section 17.31.060 states: With an Antenna Permit, the City Council may authorize an antenna installation greater than 65 feet in height and /or an antenna installation that does not comply with the provisions of Sections 17.31.030 B and C of this Chapter upon findings that:... A simple revision of the word "may" to "shall" will clarify that an applicant, upon proving up the necessary findings, will be granted an Antenna Permit. We believe this is the intent of the Council, as the use of existing permissive language implies the City may use unspecified or nebulous criteria to deny such a permit in contravention of PRB -1. C. The narrow definition of exempt antenna installations. Section 17.31.070 (Version One) provides exemptions for four classes of antenna installations 8 of 9 August 5, 20144 Item # 3.2 and related improvements: 1) Previously permitted installations; 2) Installations not exceeding six feet in a single dimension; 3) guy -wire supports; and 4) wire antennas of gauge 12 or narrower. To these we suggest adding, for clarification: a) Non - permanently affixed antennas, such as those temporarily mounted onto transmitters or receivers, vessels, aircraft, vehicles, and trailers, and hand -held, portable tripod or other movable supports; and b) building- mounted vertical or compact (elements less than 12 feet in length) directional antennas up to 10 feet above the roofline but no more than 35 feet in height. The first addition affords exemptions to the many small varieties antennas often used while in transit in emergency situations and/or an applicant's experimentation prior to the placement of a more expensive, larger, permanently affixed structure. These largely inconspicuous antennas are vital to amateur radio operators and the services they provide the community. While it is likely implied that such antenna are exempt under the existing provisions of Version One, PARS feels it important to clarify this position in the ordinance so no confusion arises in the future. The second addition relates to antennas that are similar in size to television antennas, which require no permits under Federal, State and City law, or smaller. D. Finally, we recommend the specification of a cost to the Antenna Permit review and approval process to ensure applicants are able to understand the expense of such an effort. Such an Antenna Permit fee should be relatively inexpensive to encourage applicants to enter the amateur radio service as directed by 47 C.F.R. Section 97.1(c). Our recommendation is that the fee be no greater than 10% of the cost of the equipment to be installed or such other fixed cost which ensures that a ready supply of amateur radio operators. Such hobbyists may one day be crucial in protecting their family, their neighborhood, Poway, and the greater region — a truly priceless benefit. PARS urges the City to reject Version Two and approve Version One as amended above. Sincerely, Charles Ristorcelli NN3V PARS Technical Commitee 9 of 9 August 5, 20145 Item # 3.2 ADDITIONAL MATERIAL From: Pat Herndon [mailto:pMpat @gmail.com] Sent: Monday, July 28, 2014 4:02 PM To: Don Higginson; Dave Grosch; Jim Cunningham; John Mullin; Steve Vaus Cc: Dan Singer; Bob Manis; Jason Martin Subject: Amateur Radio Antenna Ordnance Mayor Higginson and Council Members, I will be out of town on August 6 and therefore unable to attend the Council Meeting but want, to give you my input regarding the proposed ordinances. First, I urge you not to even consider Ordinance No. 2 as it clearly violates the FCC requirement to use "minimum practicable regulation ". It adds unnecessary layers of bureaucracy and expense to the process. Ordinance No. 1 is well thought out, and I urge you to adopt it, with possibly some minor tweaks. I am not opposed to requiring notification of neighbors with 500 feet of the proposed antenna. This subject has been under discussion for far too many years, and I am glad to see that it will finally be resolved. Thank you for your attention to my concerns. Sincerely, Patrick Herndon 13844 Savage Way Poway, CA 92064 1 of 1 August 5, 2014, Item # 3.2