HomeMy WebLinkAboutStaff Report 3.F 09/10/2018DATE: September 10, 2018
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• • •
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: Ingrid Alverde, Economic Development Manager
Lisa Tennenbaum, Assistant City Attorney
SUBJECT: Adoption of Ordinance (Second Reading) Amending the City of Petaluma
Municipal Code and Implementing Zoning Ordinance Regulating Small Cell
Facilities
RECOMMENDATION
It is recommended that the City Council adopt an Ordinance Amending the City of
Petaluma Municipal Code and Implementing Zoning Ordinance Regulating Small Cell Facilities.
BACKGROUND
On July 16, 2018, the members of the City Council unanimously approved the introduction and
first reading of the attached ordinance, with all members of the City Council present and with
Mayor Glass abstaining. Council provided direction, after taking public comment in the matter,
to broaden the buffer from 200' to 500'.
On August 6, 2018, in response to correspondence submitted by John di Bene representing
AT&T (attached), staff provided additional information for the record confirming, with citations
to authority, that the proposed ordinance amendments comply with the requirements of the
Telecommunications Act of 1996, and in particular, 47 USC Section 332(c)(7), and with the
requirements of Section 7901 of the Public Utilities Code. Staff also provided comments
acknowledging that Section 332(c)(7)(B)(iv) of the Telecommunications Act preempts local
regulation of radio frequency emissions, and confirming that nothing in the proposed ordinance
amendments is intended to regulate radio frequency emissions. The City Council introduced the
revised ordinance by a vote of 510 with Mayor Glass recused and Council Member Kearney
absent.
DISCUSSION
To address Small Cell Facilities Council approved changes to Petaluma Municipal Code Section
14.44 to define Small Cell Facilities and regulate installation within City limits. As introduced,
the amendments to the Implementing Zoning Ordinance will include Small Cell Facility as its
own type of facility with a separate definition and identify where the Small Cell Facilities can be
located on the zoning table (Section 7.090.)
Municipal Code Section 14.44 will also be amended to include the following requirements for
Small Cell Facilities:
• All new wires needed to service small cell facilities shall be installed within the
circumference of the existing pole, and shall not add any height to the pole;
• All ground -mounted equipment that cannot be installed inside the pole must be
undergrounded, flush to the ground, within three (3) feet of the pole;
• Each small cell facility must be no less than 1,500 feet away from the nearest small cell
facility;
• Aside from the transmitter/antenna itself, no additional equipment shall be visible;
• An encroachment permit must be obtained before any right-of-way work can commence;
and
• Small cell facilities must be at least 500 feet away from any residence.
The attached Ordinance includes these proposed changes, including the change from the 200'
staff recommended buffer to the 500' residential buffer, which will minimize neighborhood
aesthetic impacts from Small Cell Facilities while providing for appropriate placement of such
facilities.
FINANCIAL IMPACTS
There are no fiscal impacts from the proposed action. All small cell facility applications will be
processed through the Planning Division on a cost recovery basis.
ATTACHMENTS
1. Ordinance Amending the Petaluma Municipal Code and Implementing Zoning
Ordinance regarding Small Cell Facilities
2. AT&T Comment Letter on Small Cell Ordinance
EFFECTIVE DATE
OF ORDINANCE
Introduced by
ORDINANCE NO. XXXX N.C.S.
ATTACHMENT I
Seconded by
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PETALUMA AMENDING
CHAPTER 14.44 OF THE PETALUMA MUNICIPAL CODE AND CHAPTER 7,
SECTION 7.090 OF THE IMPLEMENTING ZONING ORDINANCE TO ADD A
DEFINITION FOR SMALL CELL FACILITIES, TO OUTLINE REGULATIONS FOR THE
INSTALLATION AND LOCATION OF SMALL CELL FACILITIES IN PETALUMA
AND ADDING A COLUMN FOR SMALL CELL FACILITIES TO THE ZONING TABLE
WHEREAS, California Public Utilities Code Section 7901.1 gives the City the right to control,
in a reasonable manner, the time, place, and manner where telecommunications facilities can
be located in City rights of way, so long as the controls are applied to all entities in an equivalent
manner; and
WHEREAS, the Petaluma Municipal Code (PMC), in Chapter 14.44 and the City's
Implementing Zoning Ordinance (IZO), Ordinance 2300 N.C.S, in Chapter 7.090 both regulate
telecommunications facilities within Petaluma; and
WHEREAS, existing telecommunications companies have requested the addition of Small
Cell Facilities within Petaluma to offload data from existing telecommunications infrastructure;
and
WHEREAS, the City, at this time, and within its absolute right as owner of City property,
declines to add or permit the adding of small cell telecommunications facilities to existing City
infrastructure; and
WHEREAS, by precedent set in GTE Mobilnet of Cal. Ltd. P'ship v. City & Cty. of San
Francisco, 440 F. Supp. 2d 1097 (N.D. Cal. 2006), Small Cell Facilities may be located on existing
privately -owned infrastructure in the public right-of-way; and
WHEREAS, under California Public Utilities Code Section 7901, the City may not ban such
Small Cell Facilities; and
WHEREAS, in order to protect the general welfare of citizens of Petaluma, the City
Council intends to update the PMC and IZO to limit the siting of small cell facilities within the
scope of existing laws; and
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WHEREAS, Section 25.010 of the City's IZO provides in pertinent part that no amendment
that regulates matters listed in Government Code Section 65850, which matters include the use
of buildings and structures, shall be made to the IZO unless the Planning Commission and City
Council find the amendment to be in conformity with the City's General Plan and consistent with
the public necessity, convenience and general welfare in accordance with Section 25.050(B) of
the IZO; and
WHEREAS, on June 12, 2018, the Planning Commission held a duly noticed public hearing
in accordance with Chapter 25 of the IZO to consider the proposed amendments to the PMC
and IZO concerning small cell sites; and
WHEREAS, after the conclusion of said public hearing, the Planning Commission adopted
Resolution No. 2018-19, recommending that the City Council adopt the amendments; and
WHEREAS, the City Council finds that the proposed edits to Chapter 14.44 of the PMC
and to the IZO, Ordinance 2630 N.C.S. are exempt from the California Environmental Quality Act
("CEQA") pursuant to Sections 15061(b) (2), 15183 and 15301 because the project is exempt due
to a categorical exemption and the application of that categorical exemption is not barred by
one of the exceptions set forth in Section 15300.2, the proposed amendments will direct Small
Cell Facilities to appropriate business and industrial zones; and because the proposed zoning
amendments will allow Small Cell Facilities with a City of Petaluma Conditional Use Permit and
Encroachment Permit that: 1) add Small Cell Facilities to existing public utilities designed to
support such uses and 2) modify existing public utilities with a new ancillary structure, without
interfering with the principle use and adding utility to the community, and there are no
cumulative impacts, unusual circumstances or other factors that would make the exemption
inapplicable; and
WHEREAS, the amendments contained in this ordinance to modify Chapter 14, Section
14.44 of the PMC and Chapter 7, Section 7.090 - Telecommunications Facilities of the IZO
implement, consistent with applicable state laws, the precise requirements, including location,
for Small Cell Facilities in the City; and
WHEREAS, on July 5, 2018, a public notice of the July 16, 2018 public hearing before the
City Council to consider the proposed PMC and IZO amendments was published in the
Petaluma Argus -Courier; and,
WHEREAS, on July 16, 2018, the City Council held a duly noticed public hearing to
consider the amendments;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF PETALUMA AS
FOLLOWS:
Section 1. FINDINGS. The City Council of the City of Petaluma hereby finds:
1. In accordance with Sections 25.010 and 25.050(B) of the City's IZO, Ordinance No. 2300
N.C.S., the proposed amendments to the IZO in Chapter 7, Section 7.090 -
Telecommunications Facilities contained in this ordinance are in general conformity with the
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Petaluma General Plan 2025 in that these changes do not change the general character
and impacts of current zoning regulations.
2. In accordance with Section 25.050(B) of IZO, the proposed amendments are consistent with
the public necessity, convenience and welfare in that they:
a. Ensure Petaluma's land use and zoning regulations provide safe and appropriate
locations where installation of Small Cell Facilities is appropriate;
b. Comply with California Public Utilities Code sections 7901 and 7901.1 which permit local
regulation of telecommunication facilities; and
c. Provide for buffers to assure that Small Cell Facilities are a safe distance from residential
land uses.
3. This ordinance is exempt from CEQA pursuant to Sections 15061(b) (3), 15183 and 15301 of
the CEQA Guidelines because the project is exempt due to a categorical exemption and
the application of that categorical exemption is not barred by one of the exceptions set
forth in Section 15300.2, the proposed amendments will direct Small Cell Facilities to
appropriate business and industrial zones; and because the proposed zoning amendments
will allow Small Cell Facilities with a City of Petaluma Conditional Use Permit and
Encroachment Permit that: 1) add Small Cell Facilities to existing public utilities designed to
support such uses and 2) modify existing public utilities with a new ancillary structure, without
interfering with the principle use and adding utility to the community, and there are no
cumulative impacts, unusual circumstances or other factors that would make the exemption
inapplicable.
Section 2. Sections 14.44.020 and 14.44.090 of Chapter 14.44 - Telecommunications Facility and
Antenna Requirement of the PMC are hereby amended to read as follows:
14.44.020 Definitions.
S. "Telecommunication facility" means a facility that transmits and/or receives
electromagnetic signals. It includes antennas, microwave dishes, horns, and other types of
equipment for the transmission or receipt of such signals, telecommunication towers or
similar structures supporting said equipment, equipment buildings, parking area, and other
accessory development.
1. "Telecommunications facility - exempt" includes but is not limited to, the following unless
located within a recognized Historic District:
a. A single ground or building mounted receive -only radio or television antenna
including any mast, for the sole use of the tenant occupying the residential parcel
on which the radio or television antenna is located; with an antenna height not
exceeding twenty-five feet;
b. A ground or building mounted citizens band radio antenna including any mast, if
the height (post and antenna) does not exceed thirty-five feet;
c. A ground, building, or tower mounted antenna operated by a federally licensed
amateur radio operator as part of the Amateur Radio Service, if the height (post
and antenna) does not exceed thirty-five feet;
d. A ground or building mounted receive -only radio or television satellite dish
antenna, which does not exceed thirty-six inches in diameter, for the sole use of
the resident occupying a residential parcel on which the satellite dish is located;
provided the height of said dish does not exceed the height of the ridgeline of the
primary structure on said parcel.
e. All citizens band radio antenna or antenna operated by a federally licensed
amateur radio operator as part of the Amateur Radio Service which existed at the
time of the adoption of this chapter (September 1996).
f. Mobile services providing public information coverage of news events of a
temporary nature.
g. Hand-held devices such as cell phones, business -band mobile radios, walkie-
talkies,
cordless telephones, garage door openers and similar devices as determined by
the planning director.
h. City government owned and operated receive and/or transmit telemetry station
antennas for supervisory control and data acquisition (SCADA) systems for water,
flood alert, traffic control devices and signals, storm water, pump stations and/or
irrigation systems, with heights not exceeding thirty-five feet.
2. "Telecommunications facilities - major" are all telecommunication facilities not clearly set
forth and included in the definition of exempt, minor or mini facilities.
3. "Telecommunications facility -mini" is an attached wireless communication facility
consisting, but not limited to, the following unless located on a structure recognized as a
historic landmark:
a. A single ground or building mounted receive -only radio or television antenna
including any mast, for the sole use of the tenant occupying the parcel on which
the radio or television antenna is located; with an antenna height not exceeding
fifty feet;
b. A ground or building mounted citizens band radio antenna including any mast, if
the height (tower, support structure, post and antenna) does not exceed seventy
feet;
c. A ground, building, or tower mounted antenna operated by a federally licensed
amateur radio operator as part of the Amateur Radio Service, if the height (post
and antenna) does not exceed seventy feet.
d. A ground or building mounted receive -only radio or television satellite dish
antenna, with diameter exceeding thirty-six inches but less than eight feet in
diameter, for the sole use of the resident occupying a residential parcel on which
the satellite dish is located; provided the height of said dish does not exceed the
height of the ridgeline of the primary structure on said parcel.
e. Exempt telecommunication facility located within a recognized historic district.
f. City owned and operated antennae used for emergency response services,
public
utilities, operations and maintenance if the height does not exceed seventy feet.
If a facility does not meet these criteria then it is considered either an "exempt", "minor"
or "major" telecommunication facility.
4. "Telecommunications facility -minor" means any offhe following:
a. Antenna which meet the definition of "mini" with the exception of the height limit.
b. Telecommunications facilities less than thirty-five feet in height and that adhere
to
Section 14.44.090 of Chapter 14.44 of the Petaluma Municipal Code.
31
C. A single ground or building mounted whip (omni) antenna without a reflector,
less
than four inches in diameter whose total height does not exceed thirty-five feet;
including any mast to which it is attached, located on commercial and/or
industrial zoned property.
d. A ground or building mounted panel antenna whose height is equal to or less
than
four feet and whose area is not more than four hundred eighty square inches in
the aggregate (e.g., one -foot diameter parabola or two feet by one and one-
half foot panel) as viewed from any one point, located on commercial or
industrial zoned property. The equipment cabinets shall be designed, placed and
screened to be unobtrusive and effectively unnoticeable.
e. More than three antennas, satellite dishes (greater than three feet in diameter),
panel antennas, or combination thereof, are proposed to be placed on the
commercial or industrial parcel, including existing facilities.
f. Building mounted antennas which, in the opinion of the planning director, are
unobtrusive or undetectable by way of design and/or placement on the building,
regardless of number, when located on commercial or industrial zoned property.
g. Telecommunications facilities less than fifty feet in height, in compliance with the
applicable sections of this chapter, located on a parcel owned by the city of
Petaluma and utilized for public and/or quasi -public uses where it is found by the
planning director to be compatible with the existing city uses of the property.
h. Telecommunication facilities, including multiple antennas, in compliance with the
applicable sections of this chapter, located on an industrial parcel and utilized for
the sole use and purpose of a research and development tenant of said parcel,
where it is found by the planning director to be aesthetically compatible with the
existing and surrounding structures.
L Telecommunication facilities located on a structure recognized as a historic
landmark.
If a facility does not meet these criteria then it' is considered a . "major"
telecommunication facility.
5. "Telecommunication facility - co -located" means a telecommunication facility
comprised of a single telecommunication tower or building supporting one or more
antennas, dishes, or similar devices owned or used by more than one public or private
entity.
6. "Telecommunication facility - commercial" means a telecommunication facility that is
operated primarily for a business purpose or purposes.
7. "Telecommunication facility - multiple user" means a telecommunication facility
comprised of multiple telecommunication towers or buildings supporting one or more
antennas owned or used by more than one public or private entity, excluding research
and development industries with antennas to serve internal uses only.
8. "Telecommunication facility - noncommercial" means a telecommunication facility that
is operated solely for a non -business purpose.
7
9. "Telecommunications facility - small cell" means a telecommunications facility that is
pole mounted to existing public utility infrastructure.
14.44.095 Small Cell facilities - Basic Requirements.
Small Cell facilities as defined in Section 14.44.020 of this chapter may be installed, erected,
maintained and/or operated in any commercial or industrial zoning district where such antennas
are permitted under this title, upon the issuance of a minor conditional use permit, so long as all
the following conditions are met:
A. The Small Cell antenna must connect to an already existing utility pole that can support its
weight.
B. All new wires needed to service the Small Cell must be installed within the width of the
existing utility pole so as to not exceed the diameter and height of the existing utility pole.
C. All ground -mounted equipment not installed inside the pole must be undergrounded, flush to
the ground, within three (3) feet of the utility pole.
D. Each Small Cell must beat least 1,500 feet away from the nearest Small Cell facility.
E. Aside from the transmitter/antenna itself, no additional equipment may be visible.
F. Each Small Cell must be at least 500 feet away from any residence.
G. An encroachment permit must be obtained for any work in the public right-of-way.
Section 3. Section 7.090 of the IZO Ordinance 2300 N.C.S. is amended to read as follows:
7.090 - Telecommunications Facilities.
The following requirements apply to Telecommunications Facilities as defined in the City's
Telecommunications Ordinance, Petaluma Municipal Code Chapter 14.44.
A. Definitions. The types of facilities regulated by this section are defined in the City's
Telecommunications Ordinance, Petaluma Municipal Code Chapter 14.44.
B. Telecommunications facilities are allowed only as described in Table 7.090(B).
Table 7.090B
Zoning
Type of Telecommunications Facility
District
Exempt
Mini Minor Major Small
OSP
A
A CUP CUP CUP
AG
A
A - - -
RR
A
A - - -
R1
A
A - - -
R2
A
A - - -
R3
A
A - - -
R4
A
A - - -
8
R5
A
A
-
-
-
C1
A
A
CUP
CUP
CUP
C2
A
A
CUP
CUP
CUP
MUTA
A
A
CUP
CUP
CUP
MU1 B
A
A
CUP
CUP
CUP
MU1C
A
A
-
-
-
MU2
A
A
CUP
CUP
CUP
BP
A
A
CUP
CUP
CUP
A
A
CUP
CUP
CUP
CF
A
A
CUP
CUP
CUP
C. Where a telecommunications facility is permitted by Table 7.0908, the approval(s) required
prior to the commencement of the operation of a Telecommunications Facility are as
prescribed in subsections 1-4 below.
Exempt Facility. An Exempt facility is an Accessory Use and no special permit is required,
except when an Exempt facility is located in a Historic District. An Exempt facility located
in a Historic District or on the site of a designated landmark is considered a Mini Facility
subject to administrative Historic and Cultural Preservation approval as prescribed in
Section 15.050.
2. Mini Facility. A Mini Facility is an Accessory Use subject to administrative site plan and
architectural review approval as prescribed by Section 24.010. When a Mini facility is
located in a Historic District or on the site of a designated landmark, the following special
permits are required:
a. A Minor conditional use permit as prescribed in Section 24.030; and
b. Administrative Historic and Cultural Review as prescribed in 15.030.
3. Minor Facility. A Minor facility requires approval of a minor conditional use permit as
prescribed in Section 24.030 and administrative site plan and architectural review
approval as prescribed in Section 24.010. When_ a Minor facility is located in a Historic
District or on the site of a designated landmark, approval of a major conditional use
permit as prescribed in Section 24.030 and Historic and Cultural Preservation Committee
approval as prescribed In Section 15.030 are required.
4. Major Facility. A major facility requires approval of a major conditional use permit as
prescribed in Section 24.030 and Planning Commission approval as prescribed in Section
24.101.
5. Small Facility. A Small Cell Facility requires approval of a minor conditional use permit as
prescribed in Section 24.030 and administrative site plan and architectural review
approval as prescribed in Section 24.010. An encroachment permit for public right-of-
way work is also required. The right-of-way shall be subject to the designation of the zone
adjacent to the right-of-way, for purposes of the Table 7.090(B) designation.
D. A Telecommunication facility shall comply with the development standards (Tables 4.6 -
4.13) for the zoning district in which the facility is located, the City's Telecommunications
Ordinance, and all other applicable City requirements.
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Section 4. Except as amended herein, the PMC and the IZO, Ordinance No. 2300 N.C.S.,
remain unchanged and in full force and effect.
Section 5. Severability. If any section, subsection, sentence, clause, phrase or word of this
ordinance is for any reason held to be unconstitutional, unlawful or otherwise invalid by a court
of competent jurisdiction or preempted by state legislation, such decision or legislation shall not
affect the validity of the' remaining portions of this ordinance. The City Council of the City of
Petaluma hereby declares that it would have passed and adopted this ordinance and each
and all provisions thereof irrespective of the fact that any one or more of said provisions be
declared unconstitutional, unlawful or otherwise invalid.
Section 6. Effective Date. This ordinance shall become effective thirty (30) days after the
date of its adoption by the Petaluma City Council.
Section 7. Posting/Publishing of Notice. The City Clerk is hereby directed to publish or post
this ordinance or a synopsis for the period and in the manner provided by the City Charter and
other applicable law.
INTRODUCED, and ordered posted/dished, this 16th day of July 2018.
ADOPTED this day of 2018, by the following vote:
Ayes:
Noes:
Abstain:
Absent:
David Glass, Mayor
ATTEST: APPROVED AS TO FORM:
Claire Cooper, City Clerk
Eric Danly, City Attorney
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ATTACHMENT 2
a�� JOHN DI BENE AT&T Services, Inc.
General Attorney 2600 Camino Ramon
Legal Department Room 2W901
San Ramon, CA 94583
925.543.1548 Phone
925.867.3869 Fax
jdb@att.com
August 3, 2018
Via E -Mail
City Attorney Eric W. Danly
and Petaluma City Council
11 English Street
Petaluma, CA 94952
Re: AT&T's Comments on proposed ordinance to amend the Petaluma Municipal
Code and regulating small cell facilities
Dear City Attorney Danly, Mayor Glass, Vice Mayor Healy, and Councilmembers Albertson,
Barrett, Kearney, King, and Miller:
I write on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (AT&T) to
provide comments on the City's proposed ordinance to amend the Petaluma Municipal Code,
amending Chapter 14.44 and adding regulations of small cell facilities ("Proposed Ordinance").
AT&T appreciates the need for the City to update,its ordinance in light of changes to applicable
state and federal laws in recent years and given the continuing advances in wireless
telecommunications services technologies. Unfortunately, the Proposed Ordinance violates both
federal and state law in significant ways that must be addressed before the City enacts a new
ordinance. In particular, the City's proposed "buffer" between small cell facilities and residential
areas, which are entirely arbitrary, violates the federal Telecommunications Act and unlawfully
restricts AT&T's state law right to place its equipment in the public rights-of-way. Rather than
approving this unlawful ordinance, the City should return the draft to City Staff for further
analysis. AT&T would be happy to work with City Staff to help in developing a lawful and
effective ordinance.
Background on Need for Small Cell Infrastructure
Small cells are low-power, low -profile wireless telecommunications facilities that
propagate a signal over a shorter range (often only several hundred feet) than traditional macro
facilities. Investing in small cells gives residents and businesses access to the latest and greatest
wireless technologies while helping to preserve aesthetics because they easily blend with other
utility infrastructure in rights-of-way. Small cells will be critical to meet ever-increasing demand
for wireless services. We see a future where customers will experience speeds measured in
gigabits per second, not megabits. To work effectively, mobile customers need access to multi -
gigabit bandwidth speeds and low latency, which a small cell network helps provide. By getting
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City Attorney & City Council
August 3, 2018
Page 2 of 7
the physical antenna closer to the user, such as by attaching to poles in rights-of-way, users are
presented with a dominant signal that results in less noise interference and provides faster
throughput.
To realize the benefits of small cells; they need to be deployed near residences and
businesses where users are located. Smaller, and therefore less intrusive, wireless facilities are
appropriate in districts where residents live and work. This is especially important in today's
world where so many people rely on wireless services to do more even in their homes. The
Center for Disease Control and Prevention ("CDC") tracks the rates at which American
households are shifting from landlines to wireless telecommunications. According to the CDC's
latest Wireless Substitution Report, more than 70% of American households rely exclusively or
primarily on wireless telecommunications.' And the FCC estimates that 70 percent of all 911
calls are made from wireless devices.2 In fact, with AT&T's selection by FirstNet as the wireless
service provider to build and manage the nationwide first responder wireless network, each new
or modified facility will enhance its capability to strengthen first responder communications.
The 500 -foot "buffer" between small cells and residential uses that the City Council
voted for on its first reading would create a very large exclusion zone for small cells that
comprises most of the City. This is unlawful, as is the City's 1,500 -foot separation requirement
between small cells. Further, this policy misses an important opportunity to attract investment in
small cells that will benefit its residents and businesses.
Violations of Federal Law — Prohibition of Service
The very large exclusion zone created by the 500 -foot buffer, along with the City's
proposed 1,500 -foot separation requirement between small cell facilities, operates as a blanket
ban of wireless services, which violates federal law. This exclusion zone is entirely arbitrary, is
based largely. on non -cognizable radio frequency fears, and is not supported by any evidence. In
addition to this outright prohibition these restrictions effectively prohibit wireless services, which
also violates federal law.
The federal Telecommunications Act of 1996 ("Act") limits the authority of state and
local governments to regulate wireless telecommunications services. Under the Act, 47 U.S.C. §
253(a) prohibits any state or local regulation that prohibits or has the effect of prohibiting the
ability of any entity to provide any telecommunications service. The Ninth Circuit has made
clear that a local regulation that includes either an outright prohibition of or effectively prohibits
the provision of wireless services is preempted by Section 253(a).3 Section 253(c) provides a
safe harbor from preemption for local regulations that manage the public rights-of-way on a
competitively -neutral, reasonable, and nondiscriminatory basis.
I See Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, July -
December 2017, available at littp://www cdcyov/nchs/datafnhis/eal•lyl.eiease/wireless2O l8O6.pdf.
2 See 911 Wireless Services, available at httl2s://www.fcc.gov/cotisumers/guides/91 I -wireless-services.
3 See Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008).
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City Attorney & City Council
August 3, 2018
Page 3 of 7
The Proposed Ordinance imposes just this sort of unlawful prohibition by establishing an
arbitrary 500 -foot buffer from residential uses as well as a 1,500 -foot separation requirement
between small cell facilities. As Attachments 2-2 and 2-5 to the Proposed Ordinance — the 500 -
foot buffer maps — show, this buffer zone will prohibit provision of wireless services to large
portions of the City. This is an outright prohibition that is preempted by Section 253(a). In
addition, the 1,500 -foot separation requirement will effectively prohibit wireless services
throughout the same large portions of the City because small cells do not propagate a signal as
far as macro sites and, therefore, need to be closer together. This, too, is preempted by the Act.
Neither of these prohibitions falls within the safe harbor of Section 253(c) because these are
unreasonable and discriminatory regulations on AT&T's access to the public rights-of-way. In
particular, the buffer zone discriminates against wireless providers. The analysis of state law,
below, confirms that this buffer zone is an unlawful as an unreasonable and discriminatory
policy to manage the public rights-of-way in the City.
The Act, at 47 U.S.C. § 332(c)(7)(B), also provides rights to wireless service providers
and establishes limitations upon state and local zoning authorities with respect to applications for
permits to construct personal wireless service facilities. This law was enacted in part to prioritize
and streamline proliferation of wireless technologies on a national basis. The United States
Supreme Court has explained:
Congress enacted the Telecommunications Act of 1996 (TCA), 110 Stat. 56, to
promote competition and higher quality in American telecommunications services
and to "encourage the rapid deployment of new telecommunications
technologies." Ibid. One of the means by which it sought to accomplish these
goals was reduction of the impediments imposed by local governments upon the
installation of facilities for wireless communications, such as antenna towers. To
this end, the TCA amended the Communications Act of 1934, 48 Stat. 1064, to
include § 332(c)(7), which imposes specific limitations on the traditional
authority of state and local governments to regulate the location, construction, and
modification of such facilities, 110 Stat. 151, codified at 47 U. S. C. § 332(c)(7) a
Thus, the Act limits local regulation of wireless telecommunications facilities in pursuit of
increasing deployment of the necessary wireless infrastructure.
The Act defines the scope and parameters of a City's overall review of wireless
technology applications. Most relevant to the Proposed Ordinance, Section 332 of the Act also
prohibits a local government from denying an application for a wireless telecommunications
facility where doing so would "prohibit or have the effect of prohibiting the provision of
personal wireless services."5 The Ninth Circuit has found an "effective prohibition" under
Section 332 exists where a wireless carrier demonstrates (1) a "significant gap" in wireless
service coverage; and (2) that the proposed facility would provide the "least intrusive means," in
relation to the land use values embodied in local regulations, to provide the service coverage
4 City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115-16 (2005).
5 47 U.S.C. § 332(c)(7)(B)(i)(I1).
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City Attorney & City Council
August 3, 2018
Page 4 of 7
necessary to fill that gap.6 If a wireless carrier satisfies both of these requirements, state and .local
standards that would otherwise be sufficient to permit denial of the facility are preempted and the
municipality must approve the wireless facility. When a wireless provider presents evidence of a
significant gap and the absence of a less intrusive alternative, the burden shifts to the local
government to prove that a less intrusive alternative exists. In order to meet this burden (and
overcome the presumption in favor of federal preemption), the local government must show that
another alternative is available that fills the significant gap in coverage, that it is technologically
feasible, and that it is "less intrusive" than the proposed facility.
Based on the technology of small cell infrastructure, the Proposed Ordinance imposes an
unlawful blanket ban because the 500 -foot buffer prohibits provision of wireless services to large
portions of the City. And with each denial under the Proposed Ordinance of an application for
placement of a small cell among residential districts, the City will effectively prohibit wireless
service in violation of the Act. In addition, the City's proposed 1,500 -foot separation requirement
between small cell facilities will likely result in an effective prohibition.
Violations of Federal Law —Regulation of Radio Frequency Emissions
The Act also expressly precludes the City from considering any alleged effects of radio
frequency (RF) emissions in making decisions as to the siting of wireless telecommunications
facilities. The relevant provision states:
(iv) No State or local government or instrumentality thereof may regulate the
placement, construction, and modification of personal wireless service facilities
on the basis of the environmental effects of radio frequency emissions to the
extent that such facilities comply with the [Federal Communications]
Commission's regulations concerning such emissions.
47 U.S.C: § 332(c)(7)(B)(iv). In addition, evidence about RF emissions is not substantial
evidence that can support the denial of a wireless siting application. See 47 U.S.C. §
332(c)(7)(13)(iii). As the Proposed Ordinance was improperly animated over environmental and
health effects of RF emissions, it is unlawful.
The July 16, 2018 Staff Report to City Council makes abundantly clear that a Ivey focus
of the Proposed Ordinance was to eliminate a perceived threat of RF emissions in residential
districts. The Staff Report states that the City has consistently refused to allow small cell
facilities to be placed on City -owned infrastructure due to "health concerns to adjacent
residents." And the Staff Report describes the proposed buffer zone as a key element of a three -
pronged approach to provide "security for residential neighborhoods" by excluding small cell
facilities from residential districts.
6 See Metro PCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 734-35 (9th Cir. 2005), abrogated
on other grounds, T -Mobile South, LLC v. City of Roswell, 135 S.Ct. 808 (2015); T -Mobile USA, Inc. v. City of
Anacortes, 572 F.3d 987, 997-998 (9th Cir. 2009).
7 See City ofAnacortes, 572 F.3d at 999.
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City Attorney & City Council
August 3, 2018
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During the City Council's public hearing on the first reading of the Proposed Ordinance,
Council considered and acted upon concerns raised over alleged environmental and health
consequences of RF emissions. Several members from the public voiced concerns about
environmental and health consequences of RF emissions. Some even suggested that placement of
wireless service facilities in and among residential districts would create a health crisis. One
member of the public asserted that a cell tower in town had caused cancer. One councilmember
even discussed a concern about environmental effects of RF emissions. In the end, City Council
clearly tools these fears into consideration in not only voting to adopt the Proposed Ordinance,
but in so doing increased the proposed residential buffer zone from 200 feet to 500 feet.
Moreover, wireless facility siting applications cannot be rejected whether health concerns
are raised explicitly or indirectly through some proxy such as "property values" or even, in some
instances, aesthetics. A federal district court in California has held that in light of the federal
preemption of RF emissions, "concern over the decrease in property values may not be
considered as substantial evidence if the fear of property value depreciation is based on concern
over the health effects caused by RF emissions."8 Thus, these complaints cannot be a proxy for
preempted concerns about RF emissions. Since the prohibition on small cell facilities in
residential areas is animated by concerns over RF emissions, Council's vote to adopt the
Proposed Ordinance is an improper effort to regulate RF emissions.
Again, small cells are low-power facilities. Their outputs do not come close to the FCC's
limits. And, in any event, AT&T provides evidence of compliance with the FCC's regulations on
RF emissions with each wireless facility siting application. Thus, its applications cannot be
rejected based on health concerns of RF emissions. Because it is unlawful for the City to regulate
RF emissions or to deny compliant facilities on the basis of concerns of the effects of RF
emissions, the Proposed Ordinance is unlawful on its face, and as applied it will violate federal
law by resulting in denial of many applications for FCC -compliant facilities. And since this is a
central premise for the Proposed Ordinance, the City should take a step back to instead develop a
lawful ordinance.
Risks in Complying with State Law
The California Supreme Court has long held that telecommunications service is a matter
of statewide concern, not a municipal affair.9 AT&T has a statewide franchise right to place its
telecommunications facilities in the right-of-way. California Public Utilities Code Section 7901
provides:
Telegraph or telephone corporations may construct lines of telegraph or
telephone lines along and upon any public road or highway, along or across any
8 AT&T Wireless Services of California LLC v. City of Carlsbad, 308 F.Supp.2d 1148, 1159 (S.D. Cal. 2003)
(quoting H.R. Conference Report No. 104-458, 201 (1996)).
9 See Pac. Tel. & Tel. Co. v. Los Angeles, 44 Cal. 2d 272, 280 (1955) ("business of supplying the people with
telephone service is not a municipal affair; it is a matter of statewide concern"); Pac. Tel & Tel. Co. v San
Francisco, 51 Cal. 2d 766, 768 (1959) ("the construction and maintenance of telephone lines in the streets and
other public places within the City is today a matter of state concern and not a municipal affair").
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City Attorney & City Council
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Page 6 of 7
of the waters or lands within this State, and may erect poles, posts, piers, or
abutments for supporting the insulators, wires, and other necessary fixtures of
their lines, in such manner and at such points as not to incommode the public use
of the road or highway or interrupt the navigation of the waters.
Section 7901 applies to wireless telephone companies and the provision of wireless
telecommunications services.10 This right is subject only to the City's reasonable and
nondiscriminatory time, place, and manner regulations governing construction activities pursuant
to Section 7901.1. AT&T thus has a right to place and modify its wireless telecommunications
facilities in the public rights-of-way.
Thus, the City may not burden AT&T's use of the public rights-of-way unless the use
poses an unreasonable obstruction of public use. The City's proposed buffer zone interferes with
AT&T's right to deploy facilities in the public rights-of-way. This is not a reasonable time,
place, and manner regulation on AT&T's right to access. It is an absolute bar on AT&T's right
of access of the public rights-of-way in very large portions of the City. Not only is this patently
unreasonable as a blockade against AT&T's right of access, it is unreasonable because it singles
out wireless telecommunication facilities. To be reasonable under Section 7901.1(b), the City's
regulation must "be applied to all entities in an equivalent manner." By discriminating against
wireless providers in this way, the City's regulation is unreasonable. This blockade and this
discriminatory treatment violate state law.
Additional Section -Specific Comments
In addition to these significant legal issues affecting the Proposed Ordinance, AT&T
offers the following section -specific concerns and suggestions.
Section of the Proposed Ordinance would amend various definitions for
telecommunications facilities under Section 14.44.020 of the Petaluma Municipal Code. The
proposed definition S.9 for "Telecommunications facility — small cell" specifies that they must
be "pole mounted to existing public utility infrastructure." This is not appropriate and needs to be
revised. AT&T has the state law right to erect new poles to place small cells and to attach small
cells to other structures, whether or not qualifying as "public utility infrastructure" (which is not
defined by the Petaluma Municipal Code). Moreover, AT&T has contractual rights to attach its
facilities to other structures in the public rights-of-way, such as jointly -owned poles. And. while
AT&T typically seeks to site small cells in the public rights-of-way, it may also place small cells
10 See Application ofNextG Networks of California, Inc. for Authority to Engage in Ground -Disturbing
Outside Plant Construction and Related Matter, Case 08-04-037, Decision 11-01-027, 2011 Cal. PUC LEXIS
25 (Jan. 13, 2011) (rejecting the argument that "only wireline telephone corporations may rely upon section
7901 to access the public rights-of-way"); City of Huntington Beach v. Public Utilities Com., 214 Cal. App.
4th 566, 584-587 (2013) (NextG was properly classified as a "telephone corporation" by the CPUC and
telephone corporations are "public utilities"); GTE Mobilnet of Cal. L.L.P. v. City & County of San Francisco,
440 F. Supp. 2d 1097, 1103 (N.D. Cal. 2006) (wireless carriers are included in the definition of "telephone
corporation" in Section 7901 of the Public Utilities Code); T -Mobile West v. San Francisco, 3 Cal. App.5th
334, 348 (Cal. App. 1 st Dist. 2016).
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on other public or private property. Thus, the City should avoid defining "small cells" based on a
type of structure to which they might be mounted. AT&T is happy to suggest alternative,
appropriate language to define small cells.
For the same reason, the City must revise Section 14.44.095(A) of the Proposed
Ordinance, which requires small cell antennas "to connect to an already existing utility pole."
Section 14.44.095(B) of the Proposed Ordinance should be eliminated or revised. This
provision requires that new wires needed to service small cells be installed within the width of an
existing utility pole. Again, the City must eliminate the requirement that small cells be attached
to existing poles. In addition, the City cannot dictate AT&T's infrastructure choices such as pole
material. By requiring wires to run within the pole, this provision improperly prohibits the use of
new or existing wood poles.
Section 14.44.095(C) of the Proposed Ordinance requires "ground -mounted equipment
not installed inside the pole" to be undergrounded. This provision needs to be revised to be
consistent with Section 14.36.060(F) of the Petaluma Municipal Code that authorizes exceptions
to undergrounding resolutions for "[a]ntennae, associated equipment and supporting structures,
used by a utility for furnishing communication services."
Section 3 of the Proposed Ordinance would revise Table 7.09013 to Section 7.090 of the
City's Implementing Zoning Ordinance. The revision would specify that small cell facilities are
prohibited in all residential districts. And proposed Section 7.090(C)(5) provides that "[t]he
right-of-way shall be subject to the designation of the zone adjacent to the right-of-way, for
purposes of the Table 7.090(B) designation." Here again, the Proposed Ordinance seeks to
impose a blanket ban on wireless service facilities throughout large portions of the City. In order
to avoid this unlawful prohibition, this table must be revised to allow small cell facilities in the
public rights-of-way among these residential districts.
Conclusion
The City has proposed an ordinance that would violate state and federal law by
prohibiting small cell wireless technology. Accordingly, I urge the City not to enact the Proposed
Ordinance and to refer the matter back to City Staff to analyze the ordinance within the proper
legal framework, and then create a new ordinance that complies with state and federal law.
Very truly yours,
/s/John di Bene
John di Bene
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