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
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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