CITY OF SAN MATEO
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1 CITY OF SAN MATEO
Agenda Report
City Hall
330 W. 20th Avenue
San Mateo CA 94403
www.cityofsanmateo.org
Agenda Number: 1 Section Name: {{section.name}} Account Number: 10-4662 File ID: {{item.tracking_number}} TO: City Council
FROM: Alex Khojikian, City Manager
PREPARED BY: Public Works Department
MEETING DATE: May 6, 2024
CONTENT UPDATED: May 3, 2024 – Updates are indicated in highlights.
SUBJECT:
Wireless Ordinance and Design Standards Update – Study Session RECOMMENDATION:
Provide direction to staff as to what extent updates and amendments to the City’s wireless regulations should be prepared and brought back for consideration by the Sustainability and Infrastructure Commission and City Council.
BACKGROUND:
The feedback requested from the City Council is set forth at the end of this report and will be described at the beginning of the staff presentation to the Council. Additionally, an overview of applicable federal and state law is set forth towards the end of this report and described in more detail in Attachment 5.
On July 16, 2018, the City Council adopted its first wireless ordinance as San Mateo Municipal Code (SMMC) Chapter
17.10, “Wireless Communication Facilities in the Public Right-of-Way” (Ordinance), which addresses small wireless facilities within the public rights-of-way.
Small wireless facilities are those that meet certain Federal Communications Commission (FCC) criteria, namely (1) specified height limits for the structure on which they are mounted, (2) each antenna is no more than three cubic feet in volume, (3) associated wireless equipment is no more than 28 cubic feet in volume, (4) the facilities do not result in human exposure to RF radiation in excess of applicable safety standards, (5) the facilities are not located on tribal lands, and (6) do not result in technical registration requirements.
After the Ordinance was adopted, the FCC adopted a Declaratory Ruling and Third Report and Order, FCC 18-133 (the “Small Cell Order”). The Small Cell Order imposed various new requirements on municipalities, which included a “technical feasibility” caveat to local aesthetic authority and a new “shot clock” for small wireless facilities that required approval or denial within 60 days for small cells on existing structures and within 90 days for small cells on new support structures.
In 2020, to comply with the Small Cell Order, the City began development of a new ordinance and associated design standards. In 2021, the City amended the Ordinance and adopted the Design Standards and Application Requirements (Design Standards) currently in effect.
In 2023, the City received numerous small cell permit applications, several of which were brought to the Sustainability and Infrastructure Commission for appeal hearings. Extensive public comments about the permit applications and the
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1 Ordinance were submitted in writing and at public meetings. It became apparent that the existing Ordinance and Design Standards are not serving the community’s interests in an orderly deployment process with rigorous design standards. The feedback from both community and industry stakeholders was to request amendments to the Ordinance, the Design Standards, and the City’s review process for permit applications. The City Council directed staff to explore amendments to the Ordinance which would be responsive to the concerns expressed by the community.
An update to the City’s Ordinance and Design Standards (Update) would incorporate stakeholder feedback as well as recommendations based on staff’s experience to date processing these applications. Staff’s approach to the Update thus far has included seeking feedback from the public and the telecom industry (telecom providers with active license agreements with the City). Multiple in-person meetings were held with the community to receive feedback and to discuss their concerns. Outside of the in-person meetings, the public was allowed to submit comments and suggestions, and approximately 50 proposed recommendations were received. Staff also invited all existing wireless small cell master license agreement holders (Industry) to submit comments and recommendations. In addition, a virtual meeting with Industry representatives was held to get a better understanding of their suggestions and feedback. Furthermore, the City has retained consultants experienced in this area to review comments from the public, industry, and staff, and which will ultimately result in the drafting of amendments to the Ordinance and Design Standards based on Council’s direction.
SUMMARIZED PUBLIC COMMENTS TO DATE:
The City received various recommendations and comments from the public. Below is a list of the most common requests grouped into categories. For the full compilation of public comments, please see Attachment 1. •Gap In Coverage: This feedback concerns requiring the applicant to demonstrate there is a significant gap in coverage in the application. The public has asked for signal maps, speed test data, geographic distribution of personal wireless service, and data from a drive test.
•Restrictions on Certain Land-Uses: Requests from the public included prohibiting small cells from residential and school zones altogether, imposing setbacks requirements from homes between 500 – 600 feet and including separate design guidelines specific to residential zones. In addition, the public has requested that the effect of small cell facilities on property values to be a factor in the City’s review process. •Appeal Process: These general requests from the public include increasing the appeal deadline and to require the burden of proof for appeals to be with the applicant, as opposed to the appellant. •Public Notice and Outreach: The feedback is two-fold. First, the public requests making the notices, which are distributed as part of every application, more visible and in additional languages. Second, the public has requested that applicants hold mandatory community meetings for each application. •Definitions and Clarity: The existing design standards utilize terms that are not explicitly defined, even if in common usage, such as “technically feasible.” The public would like terms that are critical to the application review process to be better defined.
•Required Facility Separation: The public has requested that small cell facilities are placed a minimum distance apart.
•Post-Installation: The public has requested a means of monitoring the RF emissions after the site begins operation either by requiring applicants or City staff to perform/submit annual RF inspections and prepare/submit RF compliance reports.
•Pole Options: Community members have asked for an outright prohibition on allowing wireless small cell facilities on city owned streetlight poles.
•City Internal Review Process: Community members have sought more visibility into what is being submitted before the beginning of review process such as an online portal hosting the applications. In addition, they would like to see 3rd party technical experts reviewing elements of the applications such as potential fire risk from wireless small cell facilities.
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1 SUMMARIZED INDUSTRY COMMENTS TO DATE:
The industry submitted their comments by redlining the existing design standards and Ordinance. Staff compiled the comments and recommendations and the feedback received. Below is a list of the most common requests grouped into categories. The comments from the industry are compiled in Attachment 2. •Installation Standards: The Industry recommends softening restrictions on streetlight circuit voltage impact to reduce situations triggering meter pedestals.
•Conformance with Other Regulations: The Industry requests that City requirements conform to other regulations such as FCC volume limits, CPUC regulations, and PG&E requirements. •Appeal Process: The Industry proposed that appeals be heard by a hearing officer rather than the Sustainability and Infrastructure Commission to streamline the application approval process. •Definitions and Clarity: The Industry wants to replace subjectivity with objectivity in the Design Standards, including their interpretation and application. A specific example is the current Design Standards require the proposed installation to be the “least obtrusive.”
•Pole Options: The Industry is proposing to expand the pole options available for wireless small cell facility installations.
•Application Requirements: Most of these requests seek to reduce the amount of information that needs to be submitted that is not legally required. Some of the proposed changes include reducing the radius to provide alternative sites in the alternative site analysis and reducing number of angles of the renders.
FEDERAL AND STATE LAWS:
This section contains a general explanation of key federal and state laws that apply to the processing of permit applications for small wireless facilities. A more detailed explanation is set forth in Attachment 5. In addition to the City Attorney’s Office, outside legal counsel will be available at the meeting to go over these concepts and answer any questions that the City Council may have.
I. Federal Telecommunications Act
Congress adopted the Telecommunications Act of 1996 (“TCA”) to, among many other things, facilitate personal wireless service facilities deployments nationwide. The adopted legislation preserved local land-use authority subject to specific limitations enumerated in the Act. Under those “specific limitations,” local regulations cannot (1) regulate based on environmental impacts from radiofrequency (“RF”) emissions, (2) unreasonably discriminate among functionally equivalent services; or (3) prohibit or effectively prohibit the provision of personal wireless services. In addition, local decisions must be made within a reasonable time and any denial requires a written decision based on substantial evidence in the written record. These limitations are germane to all personal wireless facilities in all regulatory classifications.
With regard to RF emissions, Congress authorized the FCC to establish national standards for human exposure limits to RF emissions, and preempted state and local regulations. Also, local governments may still treat facilities that create different visual, aesthetic, or safety concerns differently, as allowed by general zoning rules, notwithstanding the general prohibition on unreasonable discrimination amongst functionally equivalent services.
A “reasonable” time for local governments to act under the “shot clock” rules is generally 60 days to collocate a small wireless facility on an existing structure, and 90 days to process a small wireless facility that is not collocated. The ability to meet shot clock deadlines is important because failure to act within them gives rise to a claim for unreasonable delay.
Compliance is especially important in California because, as discussed in Part III below, failure to timely approve or deny may result in an automatic approval.
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1 II. Federal Laws for “Small Wireless Facilities” and “Eligible Facilities Requests” (EFRs) On September 27, 2018, the FCC adopted a Declaratory Ruling and Third Report and Order, FCC 18-133 (the “Small Cell Order”). The Small Cell Order covered many topics but the key changes in the law included: (1) a reinterpretation and new legal test for an “effective prohibition” that abrogates the significant gap element in prior judicial tests; (2) defines a new regulatory classification for “small wireless facilities”; (3) limited the fees that can be charged for small wireless facilities; (4) described specific limitations on local aesthetic regulations for small wireless facilities; and (5) established new shot clock rules specific to applications for these facilities.
Additionally, federal law requires that State and local governments “may not deny, and shall approve” any “eligible facilities request” for collocation, removal, or replacement of transmission equipment on an “existing wireless tower” or “base station” so long as it does not cause a “substant[ial] change in [that site’s] physical dimensions.” More information about small wireless facilities and “eligible facilities requests” is described in Attachment 5.
III. California Wireless Siting Laws
California Public Utilities Code Section 7901 provides that telephone corporations may construct facilities along public roads in ways and locations that do not “incommode” the public use of the road. While local governments cannot require telephone corporations to obtain a local franchise, rules related to aesthetics, noise, health and safety are fair game under Section 7901. Public Utilities Code Section 7901.1 also affirms local authority to regulate the time, place and manner in which telephone corporations access the right-of-way. These regulations relate to temporary construction activities and must be applied in a nondiscriminatory manner.
In addition to any federal remedies, California law provides for a “deemed approved” remedy for certain applications for wireless facilities if the City fails to act within the FCC shot clock. To be deemed approved, the City must have failed to act within the shot clock period, all public notices required for the application must be given, and the applicant must provide written notice to the City.
Under AB 965, state law now imposes specified rules on “batched” applications. Effective January 1, 2024, state law requires local public agencies to process substantially similar “broadband projects” (e.g., wireless facilities, fiber optic cable lines, etc.) submitted at the same time by the same applicant simultaneously under a single permit application.
These batches must be processed within the “presumptively reasonable” timeframe under applicable law, which includes timelines under both federal and state laws. Batched applications are subject to “deemed approved” regulations, within certain limits, and can include up to 50 projects for cities with populations over 50,000.
FEEDBACK REQUESTED FROM THE CITY COUNCIL:
Following staff outreach, stakeholder comments clearly favor an update to the City’s regulations for wireless facilities.
Comments from community members and associations favor restricting wireless small cell deployment within the City of San Mateo. Industry comments are more technical and mainly consist of making City design standards more objective and streamlining the permit review process.
Based on a review of all stakeholders’ input on potential amendments to the City’s Municipal Code and Design Standards, staff recommends that the City Council direct staff to evaluate potential updates to the City’s regulations for wireless facilities siting and prepare a draft update for public review and comment.
Specifically, does the City Council agree with staff recommendations to amend the Municipal Code and Design Standards to:
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1 1) Comply with state mandated batch-processing rules. 2) Explore objective design standards to make installations less intrusive. 3) Allow hearing officers to consider appeals and extend the appeal timeframe from 5 to 10 days. 4) Make on-site notices of proposed facilities more visible and in more languages. 5) Revise the design standards to be more objective, add a definition of “technically infeasible,” remove conflicting requirements, and clarify which standards apply to which design cases. 6) Maintain the existing 250-foot separation requirement between freestanding poles. 7) Require applicants to submit an annual radio frequency (RF) report for each installed facility. 8) Expand pole options to reduce impacts on the right-of-way, including more discretion to use freestanding poles when warranted.
9) Explore options to use third-party experts to assist with technical reviews. 10) Explore options to reduce the number of meter pedestals in the right-of-way. 11) Amend the design guidelines to be consistent with other applicable regulations. 12) Revise application requirements to require all relevant information to be submitted as part of the permit application for transparency and to allow staff and the public to better understand the proposal and feasible alternatives.
13) Adopt a fee to recover costs for appeal hearings, as there is currently no such fee.
NEXT STEPS:
Following Council direction, staff will prepare amendments to the Ordinance and Design Standards. The draft amendments will be presented in a future Sustainability and Infrastructure Commission meeting. Staff intends to present the draft Ordinance and Design Standards to the City Council following the SIC meeting for an ordinance introduction and consideration of revised Design Standards, following by adoption of the draft Ordinance at the next regular Council meeting.
BUDGET IMPACT:
There is no budget impact associated with this study session.
ENVIRONMENTAL DETERMINATION:
This study session item is exempt from CEQA review because, as a study session, the Council cannot take any action.
Therefore, there is no possibility of any effect on the environment. (Pub. Res. §21065.) CEQA review of the draft Ordinance and Design Standards will occur when those documents are presented to the Council.
NOTICE PROVIDED:
All meeting noticing requirements were met. Additionally, a public hearing notice was published for this study session.
ATTACHMENTS:
Att 1 – Consolidated Public Request List
Att 2 – Consolidated Industry Request List
Att 3 – Wireless Ordinance
Att 4 – Design Standards and Application Requirements
Att 5 – Federal and State Laws
Att 6 – Public Comments
STAFF CONTACT:
Jay Yu, Engineering Manager
[email protected]
(650) 522-7323
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1 Jason Hallare, Senior Engineer
[email protected]
650-522-7316