Ordinance No. 80-17-87 vORDINANCE NO. 80-17-87
AN ORDINANCE ESTABLISHING A TEMPORARY MORATORIUM ON THE
ACCEPTANCE, PROCESSING OR APPROVAL OF ANY WIRELESS
COMMUNICATION FACILITIES IN THE CITY'S RIGHTS-OF-WAY; PROVIDING
AN EFFECTIVE DATE.
WHEREAS, Section 704(a) of the Telecommunications Act of 1996, entitled "Preservation
of Local Zoning Authority," (47 U.S.C. § 332(c)(7)) preserves local zoning authority over decisions
concerning the placement, construction, and modification of "personal wireless service facilities"
with certain limitations; and
WHEREAS, a local government is prohibited from imposing regulations that unreasonably
discriminate among providers of functionally equivalent services and prohibit, or have the effect
of prohibiting, the provision of personal wireless services; and
WHEREAS, a local government shall act on a request for authorization to place, construct,
or modify personal wireless service facilities "within a reasonable period of time" after the request
is filed and that any denial of a request for authorization be in writing and supported by substantial
evidence in a written record; and
WHEREAS, Chapter 19, City of Atlantic Beach Code of Ordinances provides the
application process for all instances in which a person or entity requests to occupy any City rights-
of-way; and
WHEREAS, Section 19-8, Utility Rights of Way, Code of Ordinances, provides the
processes for application, enforcement, placement and maintenance of communications facilities
in the City rights-of-way and has not been revised since 2011; and
WHEREAS, new technologies in wireless communications have emerged, which involve
the use and placement of smaller, but more numerous poles and related infrastructure to support
existing services and emerging "5-G" service; and
WHEREAS, in the 2017 legislative session, the Florida Legislature enacted House Bill 687
(the "Advanced Wireless Infrastructure Deployment Act"), which establishes a process by which
wireless providers may place small wireless facilities in the public rights -of -ways under the control
of counties and municipalities; and
WHEREAS, the Advanced Wireless Infrastructure Deployment Act became effective July
1, 2017 and requires local governments to allow certain types of wireless facilities within the rights-
of-way so long as those facilities meet objective design standards that have been locally adopted
by ordinance; and
WHEREAS, the application of Section 19-8 of the Code of Ordinances, does not provide
any objective design standards concerning the placement of these types of wireless
communications systems on City rights-of-way; and
WHEREAS, the City Commission finds that the City's rights-of-way are a limited resource
that must be properly managed both for current infrastructure needs and for planned or expected
future infrastructure expansion, maintenance, aesthetics and safety needs, to the extent
authorized by law; and
WHEREAS, the City's current laws governing the application, placement, enforcement,
and maintenance processes of wireless communications systems in the City's rights-of-way do
not adequately address the new requirements and regulations encompassed in the Advanced
Wireless Infrastructure Deployment Act; and
WHEREAS, the City Commission finds that there is a legitimate public purpose in
imposing a temporary moratorium on considering and approving personal wireless
communications systems in the City's rights-of-way to allow the City time to create appropriate
local regulations and standards consistent with federal and state laws and regulations and
balance the new and emerging technology with the City's needs and requirements; and
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WHEREAS, the Advanced Wireless Infrastructure Deployment Act allows local
governments until January 1, 2018 to enact objective design standards with which to evaluate
applications for those wireless facilities regulated by the Act; and
WHEREAS, during this time the City Commission finds that there is a legitimate public
purpose to temporarily prohibit the City's acceptance and processing of, or final determination on,
applications for rights-of-way permits for personal wireless communications systems in the City's
rights-of-way until the City Commission adopts amendments to the Code of Ordinances to
adequately regulate personal wireless communications systems in the City's rights-of-way, as
authorized in the Advanced Wireless Infrastructure Deployment Act; now, therefore,
BE IT ENACTED BY THE CITY COMMISSION ON BEHALF OF THE PEOPLE OF THE
CITY OF ATLANTIC BEACH, FLORIDA:
Section 1. Findings and Statement of Intent.
(a) The above recitals are hereby adopted as the City Commission's Findings of Fact;
and
(b) It is the intent of the City Commission to undertake a review of the City's current
laws governing the application and approval process for wireless communications
facilities, equipment and infrastructure in the City's rights-of-way and to propose
amendments to address the new and emerging technologies, conform with the
requirements of 47 U.S.C. § 332(c)(7) and the Advanced Wireless Infrastructure
Deployment Act for wireless communication systems in the City's rights-of-way
and adequately address the public health, safety and welfare.
Section 2. Temporary Moratorium Imposed as to the Acceptance, Processing or
Determination of Rights -of -Way Permit Applications for all Personal Wireless
Communications Systems in City Rights -of -Ways. The City Commission hereby imposes a
temporary moratorium on the acceptance, processing or approval of rights-of-way permit
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applications for personal wireless communication systems in the City's rights-of-way. This
moratorium is imposed pursuant to the City Commission's police powers to protect the public
health, safety and welfare of the community at large and shall remain in effect until December 31,
2017 or until such time as repealed by the City Commission, whichever shall occur first.
Section 3. Effective Date. The effective date of this Ordinance shall be August 14, 2017,
the day the Commission first took action towards the adoption of the moratorium, in accord with
Smith v. Clearwater, 383 So. 2d 681 (Fla. 2d DCA 1980). This Ordinance shall not be codified.
PASSED by the City Commission on first reading this 14th day of August, 2017.
PASSED by the City Commission on second reading this 28th day of August, 2017.
CITY OF ATLANTIC BEACH
Mitchell E. Reeves, Mayor
ATTEST:
Donna L. Bartle, City Clerk
Approved as to form and correctness:
AX
Br nna Dur n, City Attorney
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