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2014-28752 Reso RESOLUTION NO. 2014-28752 A RESOLUTION OF THE CITY OF MIAMI BEACH, FLORIDA, REGARDING THE SUBJECT OF A MORATORIUM; IMPOSING A TEMPORARY MORATORIUM ON THE ACCEPTANCE OF OR PROCESSING OF ANY APPLICATIONS OR ISSUANCE OF ANY CITY PERMITS OR APPROVALS FOR THE SITING OR INSTALLATION OF ANY WIRELESS TELECOMMUNICATION FACILITY (INCLUDING BUT NOT LIMITED TO "TELECOMMUNICATION TOWERS" AS DEFINED BY FEDERAL LAW, OR ANY NEW "WIRELESS PERSONAL TELECOMMUNICATIONS SERVICES TOWER," "TOWER," OR DISTRIBUTED ANTENNA SYSTEM," OR ANY OTHER COMMUNICATIONS FACILITIES WHOLLY CONTAINED OR MOUNTED ON A SINGLE STAND ALONE TOWER AS MAY BE CONTEMPLATED BY SECTION 337.401, FLORIDA STATUTES; SUCH MORATORIUM BEING EFFECTIVE FOR ANY PUBLIC RIGHT-OF-WAY WITHIN THE CITY OF MIAMI BEACH; WITH SUCH MORATORIUM TO BE EFFECTIVE UPON THE DATE OF ADOPTION OF THIS RESOLUTION. WHEREAS, the Telecommunications Act of 1996 ("Act") prevents the City from unreasonably discriminating among providers of functionally equivalent services, such that when the City allows communications distribution facilities (antennae) or Distributed Antenna Systems wholly contained or mounted on a single, stand-alone tower, or wireless personal telecommunications services antennae towers, within the City's public rights-of-way, it must formulate reasonable nondiscriminatory rules and policies that are applicable to all such similar facilities; and WHEREAS, the State of Florida has adopted legislation, presently codified as Section 365.172, Florida Statutes (2014) (herein the "Emergency Communications Number E911 Act") which is designed to facilitate E-911 Service Implementation for the wireless personal telecommunications industry, by expediting certain co-location requests and otherwise limiting a municipality's authority to regulate the installation of wireless telecommunications facilities; and WHEREAS, the Emergency Communications Number E-911 Act does not prevent a municipality from managing its public rights-of-way and provides in pertinent part: Further, notwithstanding anything in this section to the contrary, this subsection does not apply to or control a local government's action as a property or structure owner in the use of any property or structure owned by such entity for the placement, construction, or modification of wireless communications facilities. In the use of property or structures owned by the local government, however, a local government may not use its regulatory authority so as to avoid compliance with, or in a manner that does not advance, the provisions of this subsection. WHEREAS, the State of Florida has adopted legislation, presently codified as Section 337.401, Florida Statutes (2014) (herein the "Right Of Way Regulatory Laws") which is designed to promote the expansion of the wireless personal telecommunications industry, by confirming a municipality's authority to adopt and enforce reasonable, non-discriminatory rules and regulations which apply to the installation of utilities facilities in public rights-of-way, stating: Because of the unique circumstances applicable to providers of communications services, . . . and the fact that federal and state law require the nondiscriminatory treatment of providers of telecommunications services, and because of the desire to promote competition among providers of communications services, it is the intent of the Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to providers of communications services placing or maintaining communications facilities in its roads or rights-of- way must be generally applicable to all providers of communications services and, notwithstanding any other law, may not require a provider of communications services to apply for or enter into an individual license, franchise or other agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights-of-way. Section 337.401(3)(x), Florida Statutes (2014). WHEREAS, explosion of personal wireless communications has included not only "traditional" large towers, but recently the use of new smaller tower "microcell" technologies such as Distributed Antenna Systems Networks or DAS Networks; and WHEREAS, as a result of coverage throughout the media and applications filed with the City, the City is aware that Distributed Antenna System Networks or DAS Networks desire to begin installations of new tower facilities within the City's public rights-of-way; and WHEREAS, these new technologies may require improvements that have not been contemplated by the City in the management and control of the City's public rights- of-way and lawful competing uses thereof which need to be weighed and balanced with safety and aesthetic interests in mind; and WHEREAS, on an increasing basis, public safety officials are becoming alarmed atAhe dangers of distracted driving caused in part by the use of personal wireless communications technology in the transportation context resulting in the adoption of the Florida Ban on Texting While Driving Law, Section 316.305, Florida Statutes (2014) preventing or limiting the use; therefore, allowing a new technology principally designed to serve rights-of-way users and an immediate surrounding area (which immediate surrounding area likely already has access to alternative forms of communications) could well be viewed as inconsistent with the interest of transportation public safety; and WHEREAS, the City has already started the process for approval of possible amendments to Chapter 104 of the Code, the amendments seek to create additional regulations regarding the placement of telecommunications facilities in the public rights- of-way, and propose requirements for providers to comply with the City's land development regulations, design and site improvement standards and distance separation regulations for such facilities, and proposes to establish jurisdiction for review of such telecommunication facilities in the Design Review Board and Historic Preservation Board; and WHEREAS, although the Planning Board has heard the item, as has the Design Review Board and the Historic Preservation Board, the Historic Preservation Board has recommended substantial changes to the draft ordinance, including modification of the distance requirements, placement locations, requiring one-to-one replacement of street furniture, and modification to the design criteria; and WHEREAS, the City Commission and its Boards are contemplating additional changes and review by the Boards; and WHEREAS, these further modification are in response to the efforts to review and locate new DAS systems in the right-of-way, which placement can cause safety and security issues for the pedestrians and vehicles traversing the rights-of-way, and which placement needs to be further analyzed by Public Works and the Transportation Divisions of the City; and WHEREAS, during the discussion of moratorium the City Commission entered into the record various factual reasons for the need to review the draft ordinance and stay review of applications. A copy of the record is incorporated herein by reference as Exhibit a, in support of the moratorium; and WHEREAS, the Telecommunications Act of 1996 at 42 USC 332(c)(7)(A), does not preempt the authority of local government over decisions regarding the placement, construction and modification of wireless service facilities, and in fact ensures that local government may regulate land use (zoning), particularly if there is a written record and substantial evidence to support the action; and WHEREAS, in creating the Act Congress sought to balance between the right of the local zoning authorities to maintain the integrity of its land use rules and the need for technology; and WHEREAS, the moratorium is intended to suspend the review of application while the City gather information, to ensure there is no discrimination against providers and to ensure that the proposed edits to the telecommunications ordinance is uniform in application and does not regulate entry into the marketplace; and WHEREAS, based upon prior discussions with possible applicants, there is currently no gap in service, but rather a desire to enhance services; and WHEREAS, the possible applicants do not actually provide telecommunication services, rather, they act as "pass-through" to the providers by creating the structure that may eventually house the telecommunications provider's equipment; and WHEREAS, a moratorium is a standard land'use tool utilized in a bona fide effort to act carefully in a field with rapidly evolving technology; and WHEREAS, the Mayor and City Commission and City staff have noted the rapid deployment and potential for rapid deployment of such telecommunications towers, wireless personal telecommunications service tower, towers and Distributed Antenna Systems (hereinafter in these recitals, "telecommunications facilities") and the need for time to review, consider, and modify the processes for adoption and implementation of regulations pertaining to the deployment of such telecommunications facilities and to evaluate the extent that the existing regulations are effectively regulating the deployment of such telecommunications facilities; and WHEREAS, the purpose of this Resolution is to undertake a thorough analysis of the City's regulation of telecommunications facilities consistent with state and federal laws and developing a comprehensive strategy with regard thereto; and WHEREAS, the City's prior proposed amendments are in draft form and are in the City's review process, a 180 day moratorium on the issuance of any permits for wireless communications facilities in the City's public rights-of-way is reasonable time frame to complete the process and ensure uniform application of the final ordinance; and WHEREAS, the scope of this Resolution is purposefully designed to be narrowly tailored as it only affects new wireless communications facilities and/or tower/facility locations (as distinguished from co-locations) in the City's public rights-of-way. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISION OF THE CITY OF MIAMI BEACH, FLORIDA, THAT: I SECTION 1. The foregoing recitals are incorporated by this reference as if fully set forth in the text of this Resolution. The recitals evidence the concern, motivations and reasons for imposition of this Resolution. SECTION 2. The following words, terms and phrases, when used in this Resolution, shall have the meanings ascribed to them in this section, except when the context clearly indicates a different meaning: Antenna means a device capable of transmitting or receiving electromagnetic signals. City means the City of Miami Beach, Florida. Co-location means the situation when a second or subsequent wireless provider uses an existing structure to locate a second or subsequent antenna. The term includes ground, platform, or roof installation of equipment enclosures, cabinets, or buildings, and cables, brackets, and other equipment associated with the location and operation of the antenna or antennae for the purpose of providing wireless service. Distributed Antenna System or DAS means a network of spatially separated antenna nodes, connected to a common source by way of a transport medium that provides wireless services, including wireless personal telecommunications service, within a limited geographic area. The term DAS as used herein is limited to outdoor installations and excludes indoor installations. Public rights-of-way means the surface, the airspace above the surface and the area below the surface of any public street, highway, road, boulevard, concourse, driveway, freeway, thoroughfare, parkway, sidewalk, court, lane, way, drive, circle, or any other property for which the City is the authority that has jurisdiction and control over the transportation corridor pursuant to the Florida Transportation Code, including roads transferred to the City in accordance with § 335.0415, Fla. Stat. (2014). "Public rights-of- way" shall not include any real or personal City property except as described above and shall not include city buildings, fixtures, or other structures or improvements, regardless of whether they are situated in the public rights-of-way. Tower means any structure designed primarily to support a wireless provider's antenna or antennae. Utility pole means any pole that is used to support power, telephone or other communications service wires, including monopoles or antennae. Wireless communications facility means any equipment or facility used to provide support for service and may include, but is not limited to Distributed Antenna Systems, wireless personal telecommunications service antenna or antennae, antenna or antennae towers, equipment enclosures, cabling, antenna brackets, and other similar equipment. Placing a wireless communications facility on an existing structure does not cause the existing structure to become a wireless communications facility. Wireless personal telecommunications service antenna tower means a monopole or lattice structure, of free standing or guyed design, to support or contain one (1) or more wireless personal telecommunications service antenna and their appurtenances. Wireless personal telecommunications service antenna shall mean an antenna used in the provision of over the air wireless personal telecommunications services. SECTION 3. As of the effective date hereof, there is hereby imposed a moratorium on the acceptance of applications for or the processing of applications for or the issuance of any City permits or approvals for the installation of or siting of any new "wireless personal telecommunications services tower," or any "Tower" as defined by Section 365.172, Florida Statutes (2014), or any communications distributions facilities (antennae) wholly contained or mounted on a new single, stand-alone tower in any of the City's public rights-of-way. The moratorium will not: prevent or affect applications to co-locate antenna arrays on existing telecommunications towers which have antenna arrays anywhere in the City in accordance with Section 365.172 (13), Florida Statutes (2014). Specifically excluded from the moratorium is the application for and installation of wireless communications facilities, towers or antennas on private property and any City owned property. While the City is in the process of formulating regulations, the City reserves the right, by Resolution, to adopt other installation descriptions that may be excluded from the moratorium. During the effective period of this Resolution, all other ordinances and resolutions of the City or portions thereof in conflict with this Resolution are declared to be suspended to the extent of such conflict. SECTION 4. This Resolution is to be liberally construed to accomplish its objectives. SECTION 5. This Resolution shall remain in effect for one hundred eighty (180) days from effective date hereof, unless earlier rescinded, repealed or extended by an Ordinance or Resolution of the City Commission of the City of Miami Beach. SECTION 6. That if any clause, section or other part of this Resolution shall be held invalid or unconstitutional by any court of competent jurisdiction, the remainder of this Resolution shall not be affected thereby, but shall remain in full force and effect. SECTION 7. This Resolution shall become effective immediately upon its passage and adoption. PASSED AND ADOPTED this day of September, 2014. ATTEST: ao�y- aB�Sz. Z/ex RAF EL GRANADO, CITY CLERK PHILIP VI `-, OR ZI p� APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION City Attorney Date Exhibit 1 Reasons for Moratorium: In all discussions with possible applicants—there is no GAP in service. Coverage is present. There may be a delay in downloads, No current applicant is an actual provider of service, rather they create the structure that could house the provider—so it does not appear the FTA is triggered. Street Furniture — includes poles, lights, etc. There has been expressed by the HPB, DRB and PB concerns over safety with additional street furniture. Visual obstructions to Historic Structures in both local designated areas and National Historic Designation Areas. Concerns with ADA access and sidewalks Additional poles, which an applicant has advise would include at least 100 additional street furniture items being added to Right-of-Way, causing additional visual obstructions to drivers, in seeing the ROW, in seeing pedestrians(and vice versa) Comments from applicants that existing poles are not structurally sound or able to collocate—our poles, etc., seem to withstand hurricanes, so, need to understand if this is true, if there can be collaction or replacement of a light structure rather than adding more street furniture Should arterial roads be used rather than alley ways (which are often less traveled and reflect the back of a structure or business, so, may be more visually appealing in an alley; Representation that traffic lights can't be used for collaction, county owns the lights, so, need to determine if County would allow collocation The issue of whether the poles/street furniture would threaten property values, this claim needs to be evaluated, particularly for historic districts. The City needs to evaluate if the proposed distance separation is possible, or should be revised, expanded or eliminated. City of Miami Beach is a pedestrian city, unlike many cities in Florida, and with the Deco Bike program, etc., need to make sure that street furniture is minimized and that the poles do not cause additional aesthetic,visual pollution, and protect the community. MIAMI BEACH OFFICE OF THE MAYOR AND COMMISSION MEMORANDUM To: Jimmy Morales, City Manager From: Jonah Wolfson, Commissioner Date: September 17, 2014 Re: Commission Agenda Item —Consent Agenda —Proposed Moratorium on Permits for Wireless Telecommunication Facilities in the Public Rights- of- Please place on the Septemberl 7, 2014 Commission Consent Agenda: This memorandum reviews the applicability of a moratorium on the issuance of permits and approvals for the placement of wireless communication facilities in the City's public rights-of- way. The siting of wireless telecommunication facilities is regulated by the federal government (through the Telecommunications Act of 1996), the State of Florida (through Section 365.12, Florida Statutes) and the City of Miami Beach (through Chapter 104 of the Code of the City of Miami Beach, Florida). The Telecommunications Act of 1996 says that state and local governments may not unreasonably discriminate among otherwise equivalent wireless providers, nor may they effectively prohibit wireless services. Further, an application for siting a wireless facility must be acted upon by the governmental entity within a reasonable time. Section 365.172(13), Florida Statutes, establishes regulations that impact setbacks and design but also establish a 90-day time frame for a local government to review and approve/reject an application for a wireless facility. Chapter 104 of the Code regulates the placement and maintenance of communication facilities in the public rights-of-way consistent with state and federal requirements. We ore committed to providing excellent public service and safety to all who live, work,and play in our vibrant, tropical, historic —Agenda Item C 7 C Date -/7-/y The City is in the midst of the approval process for amendments to Chapter 104 of the Code. The amendments seek to create additional regulations regarding the placement of telecommunication facilities in the public rights-of-way. These provisions include requirements to comply with the City's land development regulations, design and site improvements standards and distance separation regulations for such facilities, and establishes jurisdiction for review of such telecommunication facilities in the Design Review Board and Historic Preservation Board. The amendments have been approved by the Planning Board and the Historic Preservation Board, but the City is contemplating further changes and review by these boards. These changes are in response to the efforts of a telecommunications entity to locate its distributed antenna system (DAS) on the City's public rights-of-way. That entity has made application for the location of over 35 DAS installations in the City's public rights-of-way. Given this new technology, the City would be well served by re-evaluating its telecommunications ordinance in the context of this new technology, the state and federal telecommunications regulations, the City's land development regulations, and the City's desire to protect the health, safety and welfare of its residents. However this legislation is characterized, a moratorium on acceptance of any applications for the placement of telecommunications in the public rights-of-way in the City is an appropriate tool to enable the City to properly evaluate the amendments. This also addresses the concern that any one entity is being positioned to be gaining an unfair competitive advantage through the amendment process. Because the City's amendments are in draft form and are in the City's review process, a 180-day moratorium on the issuance of any permits for such wireless communications facilities in the City's public rights-of-way is a reasonable time-frame. The Federal Communication Commission's Intergovernmental Advisory Committee states that such a moratorium with a clearly defined time limit can provide benefits. For example, it could provide for the orderly handling of requests for siting these facilities in the public right- of-way. In Sprint Spectrum v. City of Medina, 924 F. Supp. 1036 (W.D. Wash. 1996), the court found that a city's six month moratorium on the approval of new wireless communications facilities does not violate the Federal Communications Act. Please note that the Federal Communications Commission is considering limits on municipal moratoria in the context of siting and co-location applications. (WT Docket No. 13-238). Under this proposal, a state or local government may not prevent or delay the filing of such applications due to a moratorium, and it must approve those applications within the same time period as if no moratorium were in effect. Thus, the City would be well served by the We are committed to providing excellent public service and safety to all who live, work,and play in our vibrant, tropical, historic community. institution of the enclosed moratorium as soon as possible before the FCC implements the proposed rule. A prudent approach to address this matter would include the City's implementation, as soon as possible, of a 180-day moratorium staying the issuance of any development and/or building permits for wireless telecommunication facilities in the City's public rights-of-way. During this period, the City can reach out not only to the wireless telecommunications community but to city residents to meet and discuss their concerns and goals to develop amendments that serve the entire Miami Beach community. It should be noted that numerous jurisdictions throughout Florida have imposed moratoriums concerning this issue, including, most recently, the City of Fort Lauderdale on September 3, 2014, and the City of West Palm Beach on September 2, 2014. Please feel free to contact my Aide, Brett Cummins at x6437, if you have any questions. JW We are committed to providing excellent public service and safety to all who live, work,and play in our vibrant, tropical, historic community.