December 16, 2024
[VIA ELECTRONIC MAIL]
Members of the City Council
City of Palo Alto
Office of the City Clerk: City Hall, 7th Floor
250 Hamilton Avenue
Palo Alto, California 95901-5273
[[email protected]]
Re: Comments regarding Item 22 (Consent Calendar) on the December 16, 2024 City Council Agenda, Entitled “ First Reading: Adoption of a Temporary Ordinance Amending Section 18.42.110 (Wireless Communications Facilities) of Title 18 (Zoning) to Require Architectural Review Board Review for Tier 2 and Tier 3 Wireless Communications Facilities in the Public Rights-of-Way and Repeal the Objective Aesthetic, Noise, and Related Standards for Wireless Communication Facilities in the Public Rights-of-Way.”
Dear Mayor Stone, Vice Mayor Lauing, and Members of the City Council:
I am writing regarding Item 22, which would modify the existing wireless communications facility ordinance to eliminate the City’s objective standards for wireless communications facilities in the public rights of way and require Architectural Review Board (“ARB”) approval for Tier 2 and Tier 3 wireless facilities. AT&T recommends that the City continue to maintain its objective standards until it has developed substitute processes that will ensure compliance with the “shot clock” deadlines and “reasonableness” and “published in advance” requirements set by the Federal Communications Commission (“FCC”). AT&T requests the Council remove the item from the Consent Agenda, and send the item back to City staff with instructions that they work with the industry on developing a proposal that will comply with federal legal requirements.
AT&T is concerned that eliminating all objective standards for wireless facilities in the public rights of way will make it impossible for the City to comply with the FCC’s “shot clock” deadlines.
Small wireless facilities in the public rights of way have either a 60 day or 90 day “shot clock” deadline, and as the staff report notes, the City’s existing process makes it difficult to process permits for wireless communications facilities within these deadlines even with objective standards . Removing those objective standards and putting ARB in the middle of the process will ensure the City cannot comply with the federal law. AT&T respectfully suggests that this proposal is getting the “cart before the horse” – if the City wants to appeal its objective standards, it needs to streamline its review process first so it can ensure it can process applications for wireless communications facilities within the FCC shot clock deadlines.
Even if the Council wants to eliminate the objective standards, it should not replace them with the standard ARB requirements in Municipal Code Section 18.76.020. The extremely broad and general requirements applicable to all ARB projects are too vague and general to be useful in reviewing small wireless facilities on poles in the public rights of way. When it eliminated the City Council
City of Palo Alto
December __, 2024
objective standards, the Ninth Circuit kept in place the requirement that requirements be “reasonable” and “published in advance.” See City of Portland v. United States, 969 F.3d 1020, 1041-42 (9th Cir. 2020), cert. denied, 141 S.Ct. 2855 (Mem) (U.S. June 26, 2021). The ARB criteria in Section 18.76.020 do not include either of these concepts, and, as such, could lead the ARB to make decisions inconsistent with federal requirements. If the Council wants to rely on ARB review, it needs to at least include the “reasonable” and “published in advance” criteria from the City of Portland decision.
AT&T thus recommends that the City Council send Item 22 back to City staff with instructions to develop a new proposal that is fully consistent with federal law. AT&T would be happy to work with the staff on any such future proposal.
Sincerely,
Ellen Kamei, Lead External Affairs
MACKENZIE & ALBRITTON LLP
155 SANSOME STREET, SUITE 620
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415 / 288-4000
FACSIMILE 415 / 288-4010
December 16, 2024
VIA EMAIL
City Council
City of Palo Alto
250 Hamilton Avenue
Palo Alto, California 94301
Re: Draft Temporary Ordinance to Repeal Objective Standards and Require Architectural Review Board Review of Wireless Facilities in the Right-of-Way City Council Consent Calendar Item 22, December 16, 2024 Dear Councilmembers:
We write on behalf of Verizon Wireless regarding the draft ordinance that would repeal the current Objective Standards for small cell wireless facilities in the right-of-way, and instead require Architectural Review Board (“ARB”) review (the “Draft Ordinance”). The Draft Ordinance is inconsistent with Federal Communications Commission (“FCC”) regulations and the City’s own municipal code (the “Code”). Eliminating the Objective Standards would increase burdens on planning staff, the ARB, and the Council, requiring them to apply the subjective architectural review criteria to small utility components placed on poles along the right-of-way. We request that the Council remove Item 22 from the consent calendar, decline adoption of the Draft Ordinance, and direct staff to work with industry to update the current Objective Standards.
Verizon Wireless worked closely with the City to develop the Objective Standards, which were adopted in 2019 before the Ninth Circuit Court of Appeals vacated the FCC’s requirement that small cell standards be objective. On March 8, 2019, Verizon Wireless provided example designs for small cells on utility poles and streetlights to the ARB. At its March 21, 2019 meeting, the ARB provided feedback on potential small cell designs, which City staff incorporated into the Objective Standards. On April 15, 2019, the City Council adopted the Objective Standards along with an ordinance designating them as the applicable design criteria for wireless facilities in the right-of-way. The Objective Standards were amended later in 2019, and have since been the pertinent standards for approval of numerous small cells, which provide reliable wireless service to Palo Alto residential and commercial areas.
The close collaboration with industry ensured that the Objective Standards were technically feasible and therefore “reasonable” as mandated by FCC regulations—a
Palo Alto City Council December 16, 2024 Page 2 of 3 requirement that the Ninth Circuit upheld. See Infrastructure Order, 33 FCC Rcd. 9088, ¶¶ 86-88 (FCC 2018); see also City of Portland v. United States, 969 F.3d 1020, 1042 (9th Cir. 2020), cert. denied, 141 S.Ct. 2855 (Mem) (U.S. June 26, 2021). Feasible objective standards provide clear direction to applicants, staff, and decision-makers, and avoid legal challenges. In late 2021, Verizon Wireless recommended amendments to the Objective Standards to accommodate new wireless technology. Planning staff proposed a work program to update the standards at a November 15, 2021 City Council study session, but the initiative stalled. Verizon Wireless remains willing to collaborate with the City to update the Objective Standards. To repeal the Objective Standards would leave small cells in the right-of-way subject to the highly subjective findings for architectural review, such as “harmonious transitions in scale.” Code § 18.76.020(d). While those standards may be appropriate for typical commercial development, they are not tailored to communications utility infrastructure. For applications reviewed before 2019, the architectural review findings led the ARB to apply inappropriate and inconsistent design concepts to wireless facility equipment on utility poles and streetlights, frustrating applicants, City staff, and indeed the ARB members themselves. The Draft Ordinance would also require that right-of-way facilities satisfy the Code’s dated general wireless facilities standards, including vague requirements for “stealth” design and screening from public view. Code § 18.42.110(i). These various discretionary findings and standards could lead to denial of small cells that satisfy the FCC’s “reasonableness” standard, resulting in appeals to the City Council. According to the Council’s staff report, the Draft Ordinance would place additional burdens on planning staff workloads, due to the need to evaluate discretionary standards with no clear criteria, prepare ARB staff reports, and attend ARB meetings for each small cell application. As acknowledged in your staff report, the extended ARB review and appeal process will cause the City to miss the FCC’s “Shot Clock” deadline for final action on an application (e.g., 60 days for small cells on existing poles). In that case, an application would be deemed approved per state law. California Government Code § 65964.1. The City has bypassed Planning and Transportation Commission review by rushing the Draft Ordinance to first reading, citing City Code Section 18.80.090, which allows the Council to change zoning code provisions for a temporary period without Commission review. That specific provision was added to the Code by a 1993 ordinance intended to expedite permits for vendors serving the World Cup soccer games at Stanford the following year. See Ordinance 4181. The Draft Ordinance does not include adequate justification of the finding that it is necessary for the public health, safety, or welfare, nor can it satisfy that finding. The City has already permitted numerous small cells in the right-of-way, which pose no such impacts because the Code’s conditions of approval require compliance with the FCC’s radio frequency exposure guidelines as well as applicable building and safety regulations. Code § 18.42.110(j).
Palo Alto City Council December 16, 2024 Page 3 of 3
Small cells provide enhanced wireless service for Palo Alto residents, visitors, workers, and emergency personnel with minimal impact. The City should continue to review applications for small cells in the right-of-way based on feasible standards that accommodate this unique technology. We urge you to remove Item 22 from the consent calendar, decline adoption of the Draft Ordinance, and instead direct staff to work with wireless industry representatives to update the Objective Standards. Very truly yours, Paul B. Albritton cc: Molly Stump, Esq. Jonathan Lait Planning and Transportation Commission