Facing a flood of applications from telecommunications companies wanting to install new wireless antennas throughout Palo Alto, city staff and elected leaders find themselves caught between new federal rules that require them to speed up the permitting process and a chorus of concerned residents calling for them to resist.
Both of these factors are sure to come into play on Monday, when the City Council considers creating a new process for approving "wireless communication facilities" — radio equipment that telecoms such as Verizon and AT&T are installing with ever-greater frequency on streetlights and utility poles throughout the city. The city has approved dozens of such applications in the past year and has at least 100 more wireless "clusters" in the pipeline, according to staff.
That trend is expected to continue, with telecoms rolling out new 5G technologies, which typically rely on equipment that have less power and shorter range. As such, they will require a "greater density of WCFs (wireless communication facilities) to support a network," according to a new report from the Department of Planning and Community Environment.
As city planners review the applications, they are facing pressure to speed things along from the Federal Communications Commission (FCC), which in September approved an order creating a new time limit for the review process.
The FCC order defines a category of "small wireless facilities," many of which are designed for streetlights and utility poles, that cities must make rulings on within 60 or 90 days, depending on the technology being installed. In Palo Alto, this federally mandated "shot clock" speeds up the city's prior time limit of either 90 days or 150 days.
The federal order also requires local jurisdictions to make decisions on these applications based on aesthetic regulations that are "reasonable, objective, non-discriminatory, and published in advance." It gave cities until April 15 to adopt such regulations, which a public official must be able to apply "without exercise of personal judgment," according to the planning report.
At the same time, city leaders are facing an intensifying pushback from residents, who in recent months have submitted hundreds of letters protesting the new pole fixtures that are slated to go up near their homes. Last month, about a hundred residents attended a meeting of the Barron Park Neighborhood Association to hear a presentation from resident Tina Chow about the latest wireless proposals. They also heard from City Manager Ed Shikada and Planning Director Jonathan Lait, who in January approved an application from Vinculums, on behalf of Verizon, to install seven nodes, some of them in Barron Park.
Chow, a professor in the Department of Civil and Environmental Engineering at the University of California at Berkeley, told the Weekly that residents expressed concern about the city's approval of the latest batch of wireless nodes. One resident, Jerry Fan, confronted Lait at the meeting and asked him why he had rejected the Architectural Review Board's recommendation that the project be denied. Lait's decision "put my three kids' and wife's health at risk," Fan told the council on March 18, referring to his fear that the radio frequencies are harmful.
Dozens of other residents sent letters to the Planning and Transportation Commission and the City Council in recent weeks, complaining about the aesthetic, health and environmental impacts of the new technology. Some people have called for more restrictions for wireless equipment, including setback requirements in cases where antennas are installed near homes and schools. Others, like resident Francesca Kautz, urged the council to place a moratorium on nodes in residential neighborhoods.
"I am not saying we can't have 5G, but please put the cell nodes along freeways and on top of commercial, industrial and city owned buildings, not in our residential neighborhoods," Kautz wrote to the council on March 22.
Four designs, three tiers
On Monday, the City Council will consider a new wireless-facilities ordinance and a set of "objective standards," which include four designs for wireless equipment that city planning staff believe are "among the smallest, least conspicuous, camouflaged, and/or stealth design options available," the department's report states. These include underground vaults for radio equipment; cylindrical "shrouds" that hide pole-mounted antennas; a boxy "sunshield" cover for equipment mounted on the side of poles; and the use of existing street signs to conceal wireless equipment.
The new standards would bring some consistency and clarity to what has often been a protracted, convoluted and highly contentious process, according to staff. Applications typically undergo numerous Architectural Review Board hearings, which span months and routinely involve design changes. Even after the board and the planning director approve the application, residents and applicants can appeal it to the City Council.
That's what happened in January, when both Verizon and its critics appealed Lait's approval of the telecom's proposal to install five pole-mounted wireless equipment "nodes" in the downtown area. Crown Castle, the company that is installing the equipment on Verizon's behalf, protested Lait's rejection of its proposed design — fake mailboxes on downtown sidewalks — and his requirement that the equipment be placed in pole-mounted shrouds.
Residents also criticized his approval and maintained that the radio equipment should be placed underground, in keeping with the Architectural Review Board's recommendation.
After a long debate, council voted 4-3, with Tom DuBois, Lydia Kou and Greg Tanaka dissenting, to reaffirm Lait's decision, leaving Verizon unsatisfied and the resident appellants furious.
While the proposed ordinance aims to facilitate a "more efficient review and help to alleviate the significant burden on staff resources and ARB agendas created by the influx of WCF applications," the report states, it is facing pushback from both sides of the debate.
Verizon and AT&T are both arguing that the proposed rules are too restrictive. The companies are specifically opposing a provision that would create three different tiers for wireless equipment, based on the type of equipment sought. The least intrusive equipment ("Tier 1") would require approval by the planning director, whose decision would be final and not subject to appeal. Equipment that requires modification of poles and support structures would be considered "Tier 2." The planning director would have the option of referring these applications for ARB review, and residents would be able to appeal his decision to the council.
A similar process would apply to "Tier 3" permits, which would be required for equipment that is not collocated on existing poles. In this case, however, the applicant would need to acquire a conditional-use permit. And for both Tier 2 and Tier 3 proposals, the applicant would be required to host community meetings and notify all residents and property owners within 600 feet of the project sites at least 14 days before the meeting.
Jeremy Stroup, a representative from Vinculums, which is installing wireless equipment on behalf of Verizon, told the planning commission that Verizon believes all applications for small cells should be approved under the Tier 1 process.
"Verizon strongly believes that conditional-use appeals to the City Council for small cells that already meet objective design standards would overburden the City Council, where they have limited authority under the federal law and will prove impossible to complete within the required 60 to 90 day shot clock," Stroup said.
AT&T made a similar argument in its March 26 letter to the city. Attorney Paul Albritton, who represents AT&T, wrote that soliciting public comments "introduces subjectivity and the illusory impression that personal concerns would override objective standards, frustrating both the public and decision-makers."
"The public's subjective personal concerns simply cannot be addressed by decision-makers implementing what must be an objective process," Albritton wrote. "While a community meeting could be optional, the notice and meeting required for Tier 2 and 3 facilities are irrelevant to objective review."
Residents want a say
But for Chow and many of her neighbors, community input is paramount. At recent public hearings, residents have urged the council to include ARB in all reviews of wireless facilities and criticized the proposed ordinance for giving the planning director the sole discretion to approve applications without public meetings.
Todd Collins, a Barron Park resident and member of the Palo Alto Unified School District Board of Education, argued that the city's proposed ordinance appears "rushed." Collins, who had attended the March meeting and heard Chow's presentation, told the planning commission during its March 27 review that the proposed ordinance appears to be in need of "more thoughtful consideration" and "public input."
"I think it's fair to say at the end (of the meeting) that a large majority of those present — including council members (Tom) DuBois, (Greg) Tanaka, and (Lydia) Kou — felt that the topic deserves more discussion and public input, especially before passing an ordinance that curtails future public input, as this one does," said Collins, speaking as an individual and not as a representative of the school board.
Palo Alto is far from the only city dealing with the federal order. A coalition of cities that includes San Jose, Los Angeles, Portland and New York has sued to have the order overturned and Palo Alto has publicly come out in favor of H.R 530, a resolution by U.S. Rep. Anna Eshoo, D-Palo Alto, that would do exactly that. In February, the city submitted a letter to Eshoo expressing support for her legislation.
"We agree that deployment of the infrastructure supporting new cellular technology must be completed in a thoughtful and deliberate manner," the Feb. 7 letter signed by Mayor Eric Filseth states. "We also believe that it should be done through the usual public process associated with local government, a process that has worked well and needed no modifications from the FCC.
"As you noted, the FCC's decision to implement a time limit on our ability to review the applications — thus limiting our public process — cap fees, and restrict our ability to best determine the needs for our own city represents the FCC's failure to listen to local governments across the country."
The proposed ordinance accounts for the possibility that the FCC order would be struck from the books. It specifies that if the council repeals the "objective standards" necessitated by the FCC order, the city would effectively revert to the existing process requiring architectural-review findings as part of the approval of Tier 2 and Tier 3 applications.
Chow and others believe the city can do a lot more to protect neighbors. The architecture board, she said, should continue to review wireless applications and Lait should respect its recommendations, as planning directors have traditionally done.
The city can also include in its objective standards a list of "preferred locations" for new wireless equipment and consider requiring a minimum distance between wireless nodes.
While the Telecommunications Act of 1996 precludes states or cities from regulating radio-frequency emissions (other than to verify that wireless equipment comply with FCC standards), several cities, including Mill Valley and Fairfax, have prohibited installations of wireless equipment in residential zones, in some cases using residents' health concerns as a justification.
But Palo Alto planners note that Mill Valley and Fairfax have yet to receive any applications for "small cells," while Palo Alto has numerous such applications pending. Adopting a residential ban, the staff report notes, "would result in a large number of exception requests and would warrant additional legal analysis."
Cities that restrict the placement of wireless equipment received a boost on April 4, when the California Supreme Court ruled that cities are allowed to adopt regulations to accommodate aesthetic concerns. In upholding a San Francisco ordinance on wireless facilities, Justice Carol Corrigan wrote that the city has "inherent police powers" to determine uses of its land, a power that "includes the authority to establish aesthetic conditions for land use."
Chow and others argue that Palo Alto should use this power and, at the very least, impose setback requirements for cell equipment in residential areas. She also wants to tighten up the "exceptions" provision in the proposed ordinance, which allow applicants to get waivers from objective standards under certain circumstances.
Chow argued that the city should require applicants seeking exceptions to commission an analysis from an independent third-party reviewer, demonstrating why other alternatives (including those recommended by the city and by members of the public) aren't feasible. Telecom companies should also be required to use "the least non-compliant configuration that would work," Chow told the council this week.
Chow also noted that other cities that have recently crafted new regulations for wireless equipment. Petaluma, she said, requires underground vaults for its equipment. Fairfax recently passed an urgency ordinance with new regulations for wireless equipment, including setback requirements. In Ripon, an uproar from residents prompted Sprint to relocate a cell tower that was installed near an elementary school. It's important, she said, for Palo Alto to consider the issue carefully and craft a solution that works for its residents.
"We are fortunate that we have many nearby cities who are also working on this issue," Chow told the council on April 8. "Now, we have to figure out how to do this here, for Palo Alto."