Council looks for more say over cell towers

Federal law trumps local law when it comes to cell tower facilities, to the dismay of some Laguna Beach officials, but the City Council has made a move to gain as much control as possible over the structures.

The council gave tentative approval Aug. 20 to changes in a zoning ordinance and Local Coastal Plan that would give the city some say over new or significantly altered facilities.

“This grants us as much discretion as we can get under unfortunate federal law,” said Councilman Robert Whalen.

Federal law prevents local jurisdictions from putting restrictions on existing cell tower facilities that are not substantially changing in dimensions or that are adding antennae to existing equipment or removing or replacing it.

Existing facilities would be exempt from the requirements for local design review or a city conditional use permit. Proposed new sites or substantial increases in the size of an existing installation would be required to go through both processes.

Submittals for eligible existing sites would be required to include maps of all facilities owned and operated by the applicant within the city, information that Councilwoman Toni Iseman has been requesting for years.

Other requirements include data to justify the proposed height of the installation, analyses of alternate configurations and visual effects of the facility. A catchall provision would allow the city to obtain any other information it deems necessary.

The ordinance would also give the city discretion to hire a qualified consultant to evaluate the application, with the cost to be paid by the applicant.

Facilities that are not “eligible” would be subject to conditions of the typical approval process. City staff would review applications for administrative approval to determine compliance with the ordinance. Notices of the decision must be mailed to neighbors within five days. Appeals may be submitted within 14 days to the City Council. Fees would be waived.

Mayor Kelly Boyd objected to neighbors not being notified until after the review is completed.

Submittal requirements for administrative approval include development standards and screening to make the installation, operation and appearance as visually inconspicuous as reasonably possible, perhaps using camouflage or other design techniques. Accessory equipment must not impede pedestrians and must be screened.

Strict California Public Utilities Commission guidelines make it difficult to force the facility owners to underground the installations, according to Jeff Melching, a Rutan and Tucker attorney principally responsible for the proposed modifications to the city ordinance.

“I am trying to keep you out of the cross hairs,” Melching said about trying to avoid legal repercussions.

Councilman Steven Dicterow, who passionately objects to usurpation of local control by the state or federal government, said litigation seems likely.

“There is no certainty here,” Dicterow said. “A lot depends on how aggressive we want to be on local control.”

The vote on the amendments was 3 to 1. Mayor Pro Tem Elizabeth Pearson was absent. Iseman, a long-time opponent of the proliferation of cell towers over which the city has no control, voted against the changes. She said she wanted the staff to first find out what other communities are doing to strengthen their ordinances.

A second hearing is required before the amendments to the proposed ordinance become law.