Honorable Mayor and Members of the Hermosa Beach City Council Adjourned Meeting of February 26, 2019
Title
CONSIDERATION OF DESIGN STANDARDS
FOR WIRELESS COMMUNICATION FACILITIES
IN THE PUBLIC RIGHT OF WAY
(Assistant City Attorney Lauren Langer,
Community Development Director Ken Robertson,
and Acting Public Works Director Lucho Rodriguez)
Body
Recommended Action:
Recommendation
Staff recommends that the City Council approve the proposed Design Standards for wireless telecommunications facilities in the public right of way by adopting a Resolution of the City of Hermosa Beach, California, Establishing Design and Development Standards for Wireless Facilities in the Public Right of Way, as Authorized by Hermosa Beach Municipal Code (HBMC) Chapter 12.18.
Body
Executive Summary:
On January 8, 2019, the City Council considered and introduced an ordinance to provide the regulatory framework and standards for permitting the installation of small wireless facilities within the City’s public right of way (ROW). On January 22, 2019, the City Council adopted the ordinance, and also directed staff to bring back an amended ordinance to specifically address a resident’s expressed concern about unsightly excess cabling, or “snowshoes,” that exist along power lines, with the intent to have these corrected with new wireless installations.
The ordinance was accompanied by draft design standards. Following written and public comment on the design standards, staff proposed to delay adoption of the design standards until staff had an opportunity to thoroughly review the comments and collaborate with the wireless carriers on how to reconcile their design specifications with the City’s aesthetic goals and policies. Staff has accepted and considered multiple rounds of comments from the carriers, and the proposed design standards reflect a revised staff proposal.
Discussion:
The demand for wireless broadband is expected to grow exponentially over the next several years. This growth is a result of the implementation of the tremendous amount of digital content such as streaming video, social media, Smart City applications, robots, drones, self-driving cars, artificial intelligence, and many more Internet of Things (IoT) applications. Traditionally, wireless antennas and equipment were primarily installed on large towers on private land and on the rooftops of buildings. These deployments are subject to conditional use permit approval under the zoning code and are currently prohibited in residential zones.
In recent years, companies increasingly seek to install wireless facilities in the ROW on utility poles, streetlights and new poles. To accommodate the ever growing demand for wireless broadband telecommunications, the industry is starting to look for small cell 5G (fifth generation of cellular mobile communications) technology which is a 10-fold improvement in capacity over existing broadband. 5G technology is distinguished from the present 4G based wireless service by use of low power transmitters with coverage radius of approximately 400 feet - 5G thus requires close spacing of antennas and more of them. Street light poles and other poles are therefore ideally suited for 5G antenna placement due to their sheer numbers and locations where they are deployed throughout municipalities. Current predictions indicate that the next wave of wireless facility deployment, specifically 5G, will involve $275 billion in investment over the next decade, with the vast majority of these new facilities anticipated to be placed in the ROW.
Limits of City Authority and Regulatory Setting:
The City’s role in the siting and design of wireless communication facilities (WCFs) is generally limited to aesthetics. Essentially, the federal Telecommunications Act is intended to ensure that the public has sufficient access to telecommunication services. Based on this federal law a local government shall not prohibit or have the effect of prohibiting the provision of personal wireless services. Further, no state or local government may regulate cell tower placement based on “the environmental (health) effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.” A zoning authority’s consideration of health effects, including potential effects on property values due to potential radio frequency emissions, may not serve as “substantial evidence” for purposes of denying a WCF.
As utilities, telephone companies, which include wireless telecommunications providers, may use the public right of way to deploy facilities under their state franchise conferred in California Public Utilities Code Section 7901. That right does have some limitations. Specifically, Section 7901 provides that such use must be “in such manner and at such points as not to incommode the public use of the road….” The phrase “incommode the public use” in Section 7901 means “to unreasonably subject the public use to inconvenience or discomfort; to unreasonably trouble, annoy, molest, embarrass, inconvenience; to unreasonably hinder, impede, or obstruct the public use.” “Incommode” is “broad enough ‘to be inclusive of concerns related to the appearance of a facility’”, and therefore, Section 7901 does not prohibit local governments from conditioning the approval of a particular permanent siting permit on aesthetic concerns.
In addition to Section 7901, Public Utilities Code Section 2902 also protects a local government’s right “to supervise and regulate the relationship between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility, the location of the poles, wires, mains, or conduits of any public utility, on, under, or above any public streets…within the limits of the municipal corporation.” This provision is a further basis for a local government to restrict the location of proposed facilities due to public safety reasons or other local concerns or even deny applications in appropriate circumstances.
Further, a local government has the right under Section 7901.1 “to exercise reasonable control as to the time, place, and manner in which roads…are accessed [by telephone companies].” The “time, place and manner” of temporary access refers to “when, where, and how telecommunications service providers gain entry to the public rights-of-way.” This includes a requirement for obtaining encroachment permits. There are other tangential constraints on local regulation from state and federal law. At the state level, the California Public Utilities Commission (CPUC) may have authority to invoke the statewide interest in telecommunications services to take action to preempt local ordinances for particular telecommunications projects.
Recent FCC Orders:
In addition, recent changes in federal law place shortened time frames or “shot clocks” and other requirements on local review of wireless facility installations in the ROW. Under a Federal Communications Commission (FCC) declaratory order and regulations1 which went into effect on January 14, 2019, if a city does not render a decision on a small wireless facility application within a specified time period (60 days for installations on existing structures, and 90 days for new structures), the failure to meet the deadline for action will be presumed to violate federal law (both a failure to act within a reasonable period of time and an effective prohibition of wireless services). On aesthetics and undergrounding, the FCC declares that such requirements will not be preempted if they are reasonable, no more burdensome than those applied to other types of infrastructure deployments, and objective and published in advance.
While the legal validity of both of the FCC orders is being litigated, the effectiveness of the orders has not been stayed pending the resolution of the litigation.2 Staff, therefore, is taking steps discussed in this report to address wireless deployments in the ROW consistent with the new federal regulations, and among them, recommends Council adopt the draft design standards that would provide the industry guidance with regarding to aesthetics, location and design.
Summary of Proposed Design Standards:
The ordinance adopted in January provides that design and development standards would be established separately. Given how fast this technology is changing, staff recommends having these guidelines adopted by separate resolution and not placing them in the Municipal Code. Given the frequent and often important changes to the law and technology of wireless installations, especially the pending litigation surrounding the FCC Order, administrative design standards afford the City the flexibility to readily adapt and tailor its regulations to these changes and the concerns of the City. Many cities follow this format. The draft Design Standards are attached to this report for City Council approval. The FCC order also requires that cities have design standards published by mid-April. Notwithstanding, the City should adopt its standards as soon as possible, so carriers have guidance as they begin to submit applications to the City as early as February. The intent of these designs standards is to establish objective requirements for location, camouflage and concealment elements,
etc. for small wireless service facilities in the ROW. The more advance guidance that the City can provide to the wireless industry through its design standards, the easier it is for the carriers to design to meet those standards, and the easier it is for the City to review and process the applications within the short timeframes (shot clocks) set by the FCC.
Siting these facilities can be a difficult task for the carriers, as they try to meet the City’s goals while providing the capacity and coverage they need to serve their customers. The design standards encourage a pre-application meeting during which City staff can discuss the proposal with the carrier and confirm whether the proposal meets the standards. This also provides the carriers an opportunity to discuss location with staff and attempt to site the facilities in a way that best meets the City’s aesthetic and safety goals.
Determining the appropriate height in the ROW can be challenging. The guidelines propose that wireless facilities be located no higher than 10% or 10 feet (whichever is greater) than the maximum height allowed in the adjacent zoning district. This would ensure consistency in height limits and ensure that facilities relate in size and scale to their surroundings. In response to carrier concerns about compliance with the PUC’s minimum vertical clearance requirements, language has been added to allow an exception if a different height is required to comply with those PUC requirements.
In order to avoid visual clutter, the preferred method of concealment is to place the equipment associated with the antennas underground. The antenna and pole mounted accessory equipment must be camouflaged. Lastly, modifications to existing facilities may not defeat existing concealment elements on the existing structure or pole.
Allowable locations are on existing infrastructure such as street lights or utility poles. Should the carriers need to replace the infrastructure with new lights or poles to incorporate the wireless facility, that is permitted and referred to as a replacement pole. Replacements must be in the same location, unless they need to be moved slightly to meet the pole owner’s requirements.
The standards also try to balance the unique land use characteristics in Hermosa Beach. For example, staff proposes that in the City’s narrow alleys adjacent to residential properties, the facilities be placed above roof lines in order to avoid facilities next to residential windows and decks. On walk streets, staff proposes that the facilities be located lower to avoid a major disruption in the aesthetics and views. Staff also recommends that when there is a choice in location, carriers should choose to site on a pole or light that is between structures and not immediately adjacent.
WCFs are prohibited on The Strand and Pier Plaza, and lighting is prohibited unless required by the FAA. Artificial trees, aboveground generators and batteries are also prohibited. While electric meters should not be needed if unmetered service is available in the area, any electrical meters shall be as unobtrusive as possible. The standards also require that any landscaping proposed to be removed during installation shall be replaced with like kind or better. Cabling shall run internally within all poles to the maximum extent feasible.
Pole mounted facilities are not permitted on historic or decorative or unique street lights or structures, or on traffic poles. There must be a minimum of five feet horizontal clearance from the base of the pole and eight feet vertical clearance from the ground to maintain safe pedestrian passage.
Where feasible for street lights, antennas shall be placed inside a pole-top shroud no wider than the pole and the accessor equipment shall be inside or underground where feasible.
On utility poles, the antennas, brackets and cabling shall match the color of the pole. The equipment and enclosures shall be narrow so that it is less likely to impair views of buildings and scenic resources or detract from streetscapes. Equipment shall be oriented away from residential windows and the primary travel direction, and shall be stacked close together.
A public concern was raised about “snowshoes”, a slack cable on a strand of wires shaped like a snowshoe or horseshoe. The concern was that unsightly snowshoes and excess cabling should be removed as part of a new wireless installation. Wireless carriers report that snowshoes and excess cabling are typically related to land lines and other utility functions, most likely Frontier in Hermosa Beach. Because they are not associated with wireless facilities, the wireless carriers do not have the authority to remove them. However, the proposed design standards for wireless facilities specifically prohibit exposed slack or extra cable and require the concealment or removal of any existing excess cabling where feasible if associated with the wireless carrier.
These proposed standards reflect staff’s best proposal to balance all of the competing interests, including safety of the ROW, aesthetics, evolving technology and federal law requirements and different design needs for each carrier. It can be difficult to draft one-size fits all standards to cover different carriers with different design and coverage needs in this evolving space. Therefore, there must be some limited flexibility in the standards. Under the City’s new wireless ordinance, the Public Works Director may waive a standard if that standard would create a prohibition on service in violation of federal law. If a wavier is warranted, it shall only be to the minimum extent required to avoid the prohibition or violation.
General Plan Consistency
Chapter 7 of the City’s General Plan Infrastructure element states that telecommunication systems support advanced and innovative communication methods between residents, businesses, visitors, and the City. Telecommunications infrastructure and services are critical to businesses for economic growth and job creation. Residents rely on telecommunications for quality of life, education, research, and access to health care and government services. Telecommunications services in Hermosa Beach include cable television, high speed Internet, and wireless and ground-line telephone services. A variety of private companies provide these services and have infrastructure located throughout the City to provide consistent and reliable telecommunication services to the community. As of August 2015, Hermosa Beach had a total of five mobile providers.
This resolution is consistent with General Plan Infrastructure Goal 1 which aims to ensure infrastructure systems are functional, safe, and well maintained through implementing the following policies:
Policies
• 1.1 Infrastructure systems plan. Establish and adopt an integrated, holistic systems approach to guide infrastructure development, improvement, maintenance, and resilience.
• 1.3 Right-of-way coordination. Ensure infrastructure maintenance and repair projects within the public right-of-way are coordinated with utilities and agencies to minimize additional roadway repaving or accelerated deterioration.
• 1.4 Fair share assessments. Require new development and redevelopment projects to pay their fair share of the cost of infrastructure improvements needed to serve the project, and ensure that needed infrastructure is available prior to or at the time of project completion.
• 1.5 New technologies. When feasible, utilize emerging technologies and funding strategies that improve infrastructure efficiency, sustainability, and resiliency.
• 1.6 Utility Infrastructure Siting. Ensure new infrastructure is sited in a manner to minimize negative impacts to the community and prioritize projects to address the greatest deficiencies.
• 1.7 Aesthetic and urban form. Require infrastructure and infrastructure improvements that are aesthetically pleasing and consistent with the scenic character of the surrounding area.
The resolution is also consistent with General Plan Infrastructure Goal 7 which aims to ensure a reliable and efficient telecommunications network is available to every resident, business, and institution through implementing the following policies:
Policies
• 7.1 Accommodate future technologies. Encourage telecommunications providers and building developments to size infrastructure and facilities to accommodate future expansion and changes in the need for technology.
• 7.2 Appropriate siting of telecommunications infrastructure. Design and site all facilities to minimize their visibility, prevent visual clutter, and reduce conflicts with surrounding land uses while recognizing that the entire community can have access to communication infrastructure.
• 7.3 Co-location of facilities. Encourage telecommunications facilities located adjacent to, on, or incorporated into existing or proposed buildings, towers, or other structures.
• 7.4 Emergency services technology. Prioritize telecommunications services used for the safety and well-being of the community.
• 7.5 Access for all. Encourage the installation and availability of facilities that provide free telecommunication access at key activity and business centers throughout the community.
Environmental Analysis:
This Resolution is not a project within the meaning of Section 15378 of the State of California Environmental Quality Act (“CEQA”) Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. Most of the terms and scope of City discretion are guided by existing State and Federal law. The City’s Ordinance (Chapter 12.18) creates an administrative process to process requests for wireless facilities in the ROW and the City’s discretion with these applications is limited. This resolution sets forth the design standards for those wireless facilities to protect the aesthetic interests and ensure a safe and accessible right of way. These standards do not authorize any specific development or installation on any specific piece of property within the City’s boundaries, most of which would be placed on existing infrastructure. Alternatively, even if the Resolution were considered a “project” within the meaning of State CEQA Guidelines Section 15378, the Resolution is exempt from CEQA on multiple grounds. First, the Resolution is exempt from CEQA because the City Council’s adoption of the Resolution is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. (State CEQA Guidelines, § 15061(b)(3)). This Resolution creates design standards for wireless carriers to place facilities in the ROW, often on existing infrastructure. Moreover, in the event that the Resolution is interpreted so as to permit installation of wireless facilities on a particular site, the installation would be exempt from CEQA review in accordance with either State CEQA Guidelines Section 15302 (replacement or reconstruction), State CEQA Guidelines Section 15303 (new construction or conversion of small structures), and/or State CEQA Guidelines Section 15304 (minor alterations to land), as these facilities are allowed under Federal and State law, are by their nature smaller when placed in the ROW and subject to these various siting and design preferences to prevent aesthetic impact to the extent feasible.
Fiscal Impacts:
Due to the tight time restraints imposed by the FCC to process these applications, the Public Works Department would assign consultant(s) to process these applications in a timely manner. As such, the City would accept a deposit fee from the applicant to cover the consultant’s costs and a 15% administrative fee to cover the City’s related administrative costs, and any funds not used would be reimbursed to the applicant.
Summary:
Much of Hermosa Beach is zoned residential, where WCFs are prohibited, leaving fewer options for carriers to locate. Allowing and regulating WCFs in the ROW, subject to reasonable time, place and manner restrictions, strikes the balance between allowing carriers to improve their service in a manner that is less intrusive on the community, while balancing the wireless providers’ and their customers’ rights for coverage along with taking into account Hermosa’s unique characteristics.
Many carriers are considering smaller wireless facilities in the ROW in lieu of large macro facilities, which tend to generate significant public opposition. These facilities are small, unobtrusive and are often attached to light poles and utility poles. Other carriers and neutral hosts are currently waiting on adoption of these standards to guide their design for wireless telecommunication facilities within the ROW.
Attachments:
1. Draft Resolution Establishing Design and Development Standards for Wireless Facilities in the Right of Way
2. Ordinance 19-1390 Wireless Facilities in Public Rights of Way
3. Photos of Sample Wireless Facility Designs Prohibited and Allowed
4. Link to City Council Meeting of January 8, 2019
Respectfully Submitted by: Lauren Langer, Assistant City Attorney; Nicole Ellis, Associate Planner; Kim Chafin, Planning Manager
Concur: Ken Robertson, Community Development Director
Concur: Lucho Rodriguez, Acting Public Works Director
Noted for Fiscal Impact: Viki Copeland, Finance Director
Legal Review: Lauren Langer, Assistant City Attorney
Approved: Suja Lowenthal, City Manager