A Brave New World for Cell Antennas in California
by Robert “Tripp” May, and Omar Masry, AICP
(published in the February 2016 newsletter for the Northern California chapter of the American Planning Association). Tripp is an attorney and partner with Telecom Law Firm. Omar Masry, AICP, has served as a City Planner in Los Angeles, Orange and San Francisco counties. Both testified on AB 57 before the California State Senate.
>>>>>>>(Link to An Article Focused on Small Cells only)<<<<<<<<
Effective January 1, 2016, all wireless permit applications will be subject to an automatic approval rule under either California or federal law. In early 2015, the FCC promulgated a “deemed-granted” rule for applications for less-than-substantial requests for collocations or modifications to existing facilities pending for more than 60 days.
In late 2015, the California legislature adopted AB 57 (Quirk), a new state statute codified Government Code Section 65964.1 (see http://bit.ly/1RcnIpb), which deems approved all applications for new sites after 150 days and all collocations not covered under the FCC’s rules after 90 days. AB 57 turns the development process in California upside down to accelerate wireless infrastructure deployment. Whereas applicants must normally submit at least a complete permit application before it becomes entitled to an approval, AB 57 merely requires a submittal without an approval or denial within a specified period. Even the “deemed approval” provisions in the California Permit Streamlining Act required the applicant to complete CEQA review and observe due process, but now AB 57 grants wireless site projects a free pass irrespective of environmental or constitutional concerns.
The California legislature adopted this radical departure from orderly and deliberate deployment decisions about more-or-less permanent installations despite a consistent refusal from the FCC to grant the same extraordinary privileges to these applicants. Wireless lobbyists twice petitioned the FCC for deemed-granted permits for any wireless site application, and twice went home empty handed. In both instances, the FCC felt that too many complex and important issues are at stake to simply deem any permit granted. Nevertheless, AB 57 is the law in California. Local governments, their planners, public works engineers, officials, and elected representatives must learn to navigate the new law.
This article introduces planners to AB 57 and provides some real-world applications.
Which Shot Clock? At its core, AB 57 automatically deems approved any application for a new or substantially changed wireless site after the FCC’s “shot clock” expires. Those shot clock rules established “presumptively reasonable” times to process an application for a new site (150 days) or a collocation (90 days), after which an applicant could sue to force a decision. The distinction between a new site and collocation seems simple enough, but people often disagree over which clock applies. For example, most municipalities define a collocation to mean two wireless facilities on the same structure, but wireless industry lawyers sometimes claim that new wireless equipment added to any existing structure (whether the building or utility pole has wireless equipment or not) qualifies as a collocation subject to the 90-day clock. In contrast to both definitions, the FCC said in 2009 that a 90-day collocation means an application “does not involve a substantial increase in the size of a tower,” and a tower means a structure solely or primarily intended to support wireless antennas.
So what’s a collocation? For AB 57 purposes, the FCC’s 2009 rule applies. Unless a shorter shot clock applies (and yes, they exist), municipalities must process less-than-substantial increases in the size of a tower in 90 days or less. New sites, and substantial changes to existing sites, must be processed in 150 days or less.
Exceptions to “pause” the Shot Clocks. There are two “pause” mechanisms that apply to these 90- and 150-day clocks. The first exception applies if a carrier submits an application and the local government provides a written letter indicating why the application is incomplete within 30 days. Then, the clock pauses until the carrier re-submits the application or provides the information requested. Once a project is re-submitted, the local government has 10 days to determine if the submitted materials are complete; otherwise the clock continues.
A second exception involves the wireless carrier and the city/county agreeing to a tolling agreement to extend the clock until a certain date, or a certain metric is met, or indefinitely. However, the carrier has to voluntarily agree in writing to such an extension.
Even when the application is “complete,” but the design is still not viable (e.g., minimally-intrusive and/or consistent with local development policies/guidelines/ordinances) or not legal (e.g., violates building codes, noise ordinances, CEQA, historic preservation regulations, has no legal access to the site), the time it takes to make further changes (e.g., revise the design, conduct outreach, perform environmental review and so on) to make the project “viable” (i.e., less-intrusive) counts against the city/county and the clock still runs. Given that 20 to 30 days of the clock will typically be used in reviewing the application when it is first submitted — and that in most cities/counties, it takes around 30–40 days to get a project and neighborhood notification mailed out in advance of the public hearing (assuming the hearing body doesn’t take time off in the summer) — the 90-day clock becomes an even greater challenge, especially if there are other recommendation hearing bodies such as Historic Preservation Commission or a public design review board.
What happens after a Deemed Approval? Quite frankly, no one knows for sure. Neither the statute nor the legislative record gives any clues about the applicants’ or the municipalities’ respective rights and obligations. Does the applicant need a physical permit, or can it just go out and build the site? Although the statute permits localities to seek judicial review, that provision hardly authorizes construction without actual permits. Can the applicant build whatever it wants, or must it obey zone height restrictions and setbacks? What if the application involved a variance? Can municipalities attach conditions to permits issued after a deemed approval? What happens when the clock runs out during an appeal? Localities should think about these problems now rather than after they receive the first letter from an applicant declaring its application automatically approved.
Perhaps the best approach is to build safeguards into the review process that help prevent applications from falling through the cracks. Given that a deemed approval cannot occur unless the applicant has provided all the public notices required for the application, localities should consider requiring the applicant to send public notice that the shot clock is about to expire (and require a copy of the notice to be sent to the planner!).
CEQA challenge. Unlike existing California “deemed approvals” in the Permit Streamlining Act, AB 57 provides no timing exceptions for complex environmental (CEQA) review. So, if a new hilltop tower (plus access roads and generators) would require an Environmental Impact Report (or similar) and complex studies (e.g., biological sampling for endangered species during the Spring, storm water review for new access roads, or geotechnical and archaeological review), what choice does the local government have?It may hope the wireless carrier will voluntarily request a tolling agreement (to extend the clock for a new facility). But failing that, the locality faces a conundrum: It will want to avoid automatic approvals for incompatible designs/locations, but it won’t be able to approve a project (or subsequent permits) if it hasn’t undertaken complete CEQA review.
Due Process. AB 57 also deviates from the due process protections that appear in the Permit Streamlining Act. Whereas the PSA prohibits any deemed approval without a public hearing when one is required, AB 57 was worded to avoid as many public hearings as possible. Under the PSA, a permit cannot be deemed granted unless “the public notice required by law has occurred,” which the courts interpret to include a public hearing when a project would substantially impact neighboring property rights. AB 57, however, only requires the public notice specified for the application. So if your local code doesn’t require a public hearing, but the Constitution would, AB 57 apparently deems the permit approved whether neighbors receive their fundamental rights or not.
So how many wireless sites “substantially” impact property rights? That’s a good question, and like most good questions it doesn’t have a clear answer. However, it’s worth mention that the Ninth Circuit in American Tower Corp. v. City of San Diego recently found that the mere renewal of a large tower’s permit could substantially impact property rights — so it seems fair to say that an approval for a new tower might require a hearing in some circumstances.
Local jurisdictions should look very hard at their notice requirements. AB 57 seems to push localities toward more public hearings rather than more streamlined administrative processes. Wireless sites are already controversial in many cases. Can you imagine how the public might react if it found out that the jurisdiction could have required a hearing but didn’t?
Conclusion. AB 57 presents significant new challenges for public officials and municipal staff members. Not only does it completely change the traditional development process, it also offers few if any clear rules to guide governments and applicants through the new paradigm. The regulatory void leaves ample room for gaming and bad behavior on both sides of the counter. It doesn’t have to be that way. Omar Masry has developed an excellent supplement to help guide planners through the wireless permit process: “Supplement: Tools for adapting to AB 57” is available at http://bit.ly/1Q9UEM3. In addition, the authors encourage local officials and staff members to study AB 57, discuss it with the applicants, and develop thoughtful approaches to fill in its gaps and holes.
Other Article: 10 Key Issues for California Cities & Counties on the Challenges of Small Cells & “Not So Small Cells”
*Key considerations for cell antennas and equipment mounted to light poles, utility poles and other structures in the public right-of-way (streets and sidewalks).
Separate link to areas of consideration for Federal “6409” rules governing potentially major changes to some existing wireless facilities
The Supplement: Tools for Adapting to AB 57 (New California Law on Cell Towers)
Don’t Accept Incomplete Applications | Make it clear in application forms that applications will be considered “incomplete” (or decline to accept the application) if:
- Any existing on-site wireless facilities were not built, modified or maintained correctly (request current site photos and prior plans/permits in submittal forms).
- There are current Municipal (Building, Fire) Code Violations at the Project Site.
- Commonly expected submittal items are missing. Determine if based on local practice, whether specific exhibits (geo-technical, archaeological surveys, Phase I reports, and environmental evaluations) should be required for freestanding facilities, or facilities with other major ground disturbances (excavations, access roads, fuel tanks, new equipment/building pads). Indicate these requirements up-front on the application forms.
Require the wireless carrier to identify up-front on the application form whether they believe the site qualifies as a co-Location. This is important to ensure the local government is not “surprised” (with a deemed granted letter at day 91, for example) that the wireless carrier expected a 90-day clock, when it was originally assumed by staff that a 150-day clock would apply.
If the existing facility was built without permits (if they were required); be clear, in the permit application form that such locations are not yet eligible for a co-location.
Decline to accept new facility applications that are substantially incomplete, and consider suggesting a pre-application instead (especially for new freestanding facilities).
See sample application checklist links in the Resources section further below.
Work with Public Works | Determine if wireless facilities within the public right-of-way (e.g. antennas & cabinets on utility/light poles) should (or should not) fall under the same process as wireless facilities on buildable lots. Some cities/counties place these rules within the public works code. Other cities/counties require Planning referral as part of an encroachment permit (with the ability to add conditions); while some cities/counties require a Conditional Use Permit for each location. If you don’t have a process in place; NOW is a good time to get one.
At a 2013 wireless industry conference, in Dublin, a lawyer who represents wireless carriers, advised carriers to tell city/county Public Works Departments they were installing telephone service, and avoid references to “wireless” or “cellular” in their applications.
One neutral host wireless carrier has been (recently) asking various California cities and counties about installing brand new wooden poles in the public right-of-way (even if right in front of a residence), just to hold up new wireless facilities. They’ve indicated doing so will allow for faster and cheaper roll out of small cells.
While State law does grant fairly broad rights to wireless carriers (who posses a Certificate of Public Convenience & Necessity from the CPUC) to enter the public right of way (by granting them similar rights as “telephone corporations”), cities/counties can still establish design criteria (“time, place and manner”) to ensure the wireless facility does not significantly (visually) incommode the public right-of-way; or generate bothersome noise (cooling fans). Cities/counties can also exercise CEQA (e.g. aesthetics, archaeology, historic preservation, and noise) review, beyond any potential CEQA review by the CPUC.
Avoid instances where Public Works issues an encroachment permit for a “fiber pole” only (without antennas shown on the plans) to an applicant claiming they are installing “plain old (wired) telephone service,” as occurred in Houston (and nearly occurred in one San Diego County town), where antennas and equipment were later added to the new fiber only pole without permits.
While the four national carriers can often install oDAS/Small Cells on poles in the public right-of-way by themselves, they often work with neutral host carriers such as Crown Castle (acquired NextG/Newpath), Extenet Systems, and Mobilitie. Mobilitie also uses another DBA of “California Utility Pole Authority” (no relation to AT&T Mobility or the Southern California Joint Pole Committee and the Northern California Joint Pole Associations).
See also “Areas of consideration for Public Right of Way Facilities (known as Small Cells, or oDAS)”
Early Warning on Other Items | Consider creating metrics when other studies, such as a noise study, photometric study (new recreational field lighting w/antennas) or structural analysis are required; and then requiring those studies/submittals up front, on the application checklist.
Example: Provide a noise study for all facilities that include any of the following: outdoor (diesel) generators in areas outside X (industrial zones); and any noise-generating equipment cabinets or condensers, that generate over 45 decibels from three feet away, and are also located within either 10 feet of a residential property line, or within 10 feet of the building face of a school, child care center or retirement home.
Example: Provide a (engineer wet-stamped) structural analysis for any new freestanding (screened or unscreened support structures over 15 feet tall) facility, and any facility on wood-framed buildings other than those buildings in X (commercial or industrial zones). Also affirm that there are no conflicting easements or other property restrictions (e.g. underground flood control culverts or pipelines).
Track the Clock | If a resubmittal is provided by the wireless carrier and the application is complete but still not VIABLE, then consider scheduling a Planning Commission hearing (if required) and indicate the project will be recommended for denial by staff, at the hearing, if a viable (and complete with respect to antennas, equipment, screening, support elements) design is not provided by a specific date (e.g. 45 days before the 90 or 150 day clock, whichever applies).
Some cities (e.g. Rancho Palos Verdes) require the carrier to notify the City, in writing, of a pending shot clock expiration no later than twenty (20) days prior to the expiration. It may be preferable to also indicate the notice should also not be sent more than forty (40) days before expiration as well.
Community Meetings | While Planners always make a sincere effort to anticipate potential neighborhood land use concerns with nearly any type of land use development, they can’t predict every issue.
So, in order to avoid asking for last minute changes to remedy a sincere concern that arises a few days after the upcoming public hearing notice gets mailed out; consider requiring wireless carriers to hold their own community meeting, prior to either considering an application complete or allowing a carrier to submit a new facility (or co-location, depending on neighborhood) application.
Depending on the level of local challenges and land use patterns, such a requirement could be exempted for wireless facilities that are in wholly industrial/commercial areas; or for screened rooftop facilities, or for co-locations (at existing sites) that are fully screened (with equipment cabinets inside existing non-residential spaces) in certain land use areas.
If the city/county does decide to require a separate carrier-held community-meeting, make sure the outside of the envelope says something to the effect of “Wireless Facility Neighborhood Notification (or meeting)” in English and any predominant local languages (grey text shouldn’t conflict with USPS mailing rules). Also, require the carrier to send (via first class mail) the notice 10 days before the meeting; and to host the meeting within a certain radius of the site, on days other than Sundays, State holidays, and any relevant local holidays of importance (e.g. lunar new year, or other holidays or teacher preparation days typically noted on calendars created by the local school district, for instance).
Encourage pre-applications | Especially for freestanding sites. For new freestanding sites (e.g. new wood or steel poles in public right of way and new steel towers outside of the PROW), be cognizant of issues such as: archaeology, native habitat, brownfields (possible soil contamination or underground storage tanks), easements (private or public agencies), noise (affecting residents or habitat), storm water rules, streambed adjacency (Department of Fish & Game and/or US Army Corps of Engineers may have some purview) and whether the Federal Aviation Administration (see local airport land use plans) may require tower lighting (tip: flashing white lights reduce bird deaths compared to steady red lighting).
Ensure the project submittal shows the full scope of the facility such as new driveways and how power and communications cables will travel from the tower to any equipment area. Avoid above ground “ice bridges” (which are basically steel cable trays elevated six or more feet above the ground) that may be prominently visible from off-site.
During the pre-application meeting, ask the wireless carrier’s representative if they understand the application form. It’s not uncommon for carriers (especially for Small Cells/oDAS in the public right-of-way) to fill out the application incorrectly, including checking a YES and NO box next to each other at the same time.
Establish an alternative site analysis preference | Consider requiring the carrier to submit documentation showing why a new facility is the least intrusive type of facility, in a given neighborhood. In rural (and some suburban) contexts this could include preferences for: screened rooftop facilities on shopping centers over X acres, any four-story or more commercial building rooftop mount (check on height limit rules for screening), magnetic mounts (to hold up antennas) on existing (real) water tanks, freestanding structures integrated with an associated land use (e.g. new bell tower at an existing church), faux water tanks in an industrial area, office/retail center monument signs, faux trees in areas surrounded by existing mature trees (with a “real” adjacent tree protection plan), and a “wide slim line” that basically resembles a 36-inch wide vertical rod.
The older “slimmer” slim lines (typically 18-inch diameter) found in cities such as San Jose and Fresno, are generally considered too slim for wireless carriers, who try to either place radio relay units (RRU/RRH) near the antennas, add more/larger antennas, or run fairly thick bundles of cabling from ground-mounted RRUs to the antennas (leaving little, if any, space for a 2nd carrier’s antennas on the same pole).
While many community members may prefer zoning ordinances that prohibit all wireless facilities within or near residential zoning districts, this may, depending on a large number of factors, have the negative counter effect of encouraging wireless carriers to forgo rooftop-mounted sites (for example) that may be minimally intrusive (e.g. hidden in a church steeple) and instead seek a larger (overall number of sites) number of antennas and equipment on new or existing poles within the public right of way; and therefore right in front of homes (with equipment boxes potentially in front of windows). Or an even more challenging possibility of proposing antennas and equipment on wooden utility poles that run between adjoining backyards in some relatively older neighborhoods.
The ability to create large buffers (from residential areas) for wireless facilities is far more limited specific to public right-of-way locations (compared to larger freestanding towers or rooftop-mounted sites on private property), given State law.
Accept No More Surprises | It’s all too common for project submittals, by wireless carriers to leave out significant required elements (e.g. wide cable trays proposed running over a residential window, storefront level alterations for new generator plugs or electric meters on historic buildings, or large caged ladders on the edge of a historic residential building) that are not included in the first submittal, or even the second submittal of plans and/or photo simulations.
Or, for City staff to see RF safety reports that list the wrong number of existing antennas (for another carrier), or say there are no other carriers within 100 feet; when a cursory look on Google Earth or Google Search shows two other existing carriers on the same project site.
See list, further below (or photos here), of common items not accurately conveyed on plans and simulations for new rooftop-mounted sites and modifications.
For rooftop-mounted facilities on buildings with residences below, require the carrier to affirm (based on consultation with the property owner) in writing that the antennas/equipment won’t displace (equipment areas range in size from 2 to 5 office cubicles) existing tenant spaces (e.g. roof decks). Consider requesting site photos as well. For mixed-use buildings ensure that equipment areas within buildings (ranging in size from the equivalent of 1 to 4 office cubicles) won’t displace a small business tenant (even if on a month-to-month lease).
Make it clear in the first screen check letter that any staff design direction or hearing body determination is based on a submittal that is complete; such as plans, photo simulations, and reports (e.g. RF and structural) that accurately depict all required facility elements.
Given that 20–30 days of the clock will be used up reviewing the application when it is first submitted; and in most cities/counties, it takes around 30–40 days to get a project and neighborhood notification mailed out in advance of the public hearing (assuming the hearing body doesn’t take time off in the summer); it may also be prudent to hold a date on the hearing calendar for the project and indicate to the carrier that if the project is not complete AND viable by a certain date (e.g. 10 days after the first re-submittal for collocations and 40 days after initial re-submittal for new facilities) staff may have to recommend disapproval at that hearing date.
Indicate that substantial revisions or additions after the first re-submittal may require either a denial if sufficient time is not provided to analyze those impacts; or may necessitate approval recommendations of the project without the last-minute changes (and a new application being necessary).
For projects with substantial completeness or viability challenges (especially for 90 day collocations), consider indicating within the first screen check letter that a public hearing is tentatively scheduled for a specific date (consider adding placeholders on the hearing calendar), and a disapproval recommendation is likely if items listed in the letter are not resolved XX days prior to the hearing date.
Encourage carriers to review applicable fire codes early on in the design process. A substantial number of revisions (e.g. antenna re-locations being requested by the carrier after Planning approval) occur due to project plans not in compliance, such as rules on smoke control, antennas near standpipes and emergency exits, cumulative levels of battery acids in a given room at co-location sites, and equipment (such as “RRUs”) impeding clearance within stairwells.
Create Citywide Template Conditions of Approval | Consider creating conditions of approval that would automatically apply if a deemed granted action (automatic approvals) occurs. Conditions could address security, time limits (expiration), site maintenance, obtaining CEQA clearance, brush clearance for fire safety, fencing (e.g. rules on fence height/material and barb/razor wire usage), knox boxes (police/fire access during emergencies), landscaping, light glare/spill, aircraft lighting, noise limits, generator usage, and painting of exposed antenna/enclosure elements. Example link. Consider adopting an ordinance/conditions stating that entitlements will lapse/expire for wireless facilities that have been abandoned/inactive for more than six (6) months.
Remedying Ongoing Code Violations | As many local governments face a challenge of wireless carriers improperly developing (antennas/equipment in unapproved locations, missing screening, or using equipment not compliant with electrical codes), maintaining or modifying (adding antennas/equipment without permits) wireless facilities; discuss with counsel if an appropriate remedy for repeated and unresolved violations is to decline intake of co-location applications at the same project site and/or new facility applications for the same carrier.
Delegation for Denials| Evaluate whether current codes/charters allow for administrative denials of applications.
Allowing for administrative denials (for both conditionally and principally permitted locations) of co-Locations (90 day clock) may be especially useful for those applications normally requiring both a public hearing (including average 20 to 30 day noticing periods before the hearing); where sufficient time isn’t provided to also allow for scheduling of timely appeals. Ensure the denial is based on information in the written record.
Determine if staff denials of certain types of entitlements can be appealed, by the carrier, to a specific hearing body that is best suited to review such a project.
Determine if appeal requirements, such as requiring a percentage of neighbor’s signatures in support of an appeal by a wireless carrier (which would seem unlikely to obtain), need to be modified.
Many wireless carrier representatives may not be aware that in many cities/counties, if a project is actually denied at a public hearing, the carrier can’t come back for a public hearing, at the same project site, for time periods of six months, a year, or more. It may be prudent to discuss this issue with carrier representatives prior to public hearings.
Sequencing for Multiple Review Bodies | Take a look at the order of hearings required for certain types of wireless facilities and whether changes should be made. For instance, determine if variances (e.g. to place large equipment areas in a rear yard, or for height exceptions) require a separate application that can be heard after the original Conditional Use Permit. If the agency requires some type of Coastal Act review prior to the entitlement, it may be better to reverse the review. AB 57 does not appear to apply to the Coastal Commission’s own review. Also determine if separate public design review hearing requirements (if applicable) should be waived for certain types of fully screened rooftop-mounted co-locations.
Work with Building Department Staff | Many cities/counties face ongoing challenges of wireless carriers not developing/modifying sites correctly, per the approved plans and photo simulations, and conditions of approval. Therefore, if the City/County doesn’t currently require a Planner to visit the site before a building permit is completed (final inspection), then consider having the photo simulations (in a clear format) added to the plan set on a sheet preceding the site plan sheet. This makes it easy for both the contractor and building inspector to compare the facility to what was approved, while they are out in the field, since the case packet (and photo simulations) often doesn’t make it to the contractor.
Also consider adding a stamp to building plan approvals (or permits by Public Works for public right of way permits) to require the contractor to send site photos to the case planner before calling for a final building (or public works) inspection. Ideally, the Building or Public Works inspector won’t sign off until they see the reply e-mail back from the case planner affirming the site appears correctly built.
Some cities/counties do not release electrical permits (to allow power to be turned on) for wireless facilities until it is determined the design is consistent with the approval. This is especially relevant for faux trees, given the challenge involved with inadequate construction (exposed antennas/equipment, wrong installation locations, inconsistent foliage colors).
Environmental Review Consultants | If a project involves complex CEQA review and the City/County doesn’t have staff in-house to adequately review reports (e.g. archaeology, habitat surveys, storm water quality, geotechnical) consider requiring the wireless carrier to have such studies commissioned before application submittal, and then using a separate consultant (from a list already created by the Department) to review the documentation.
Make sure the reviews take in the full project scope such as new access roads, excavation, trenching, lighting, and noise. Work through a checklist early on in the review in order to make sure items aren’t missed by staff or the carrier.
Amend City leasing templates & Work with nearby local districts (water, vector, flood control) and other government agencies | Determine if those agencies leases can be modified to expressly make property owner approval contingent upon specific “actual” approval (not a deemed granted automatic approval) by the local jurisdiction.
Consider reaching out to the local Caltrans District office to understand how referrals/reviews can/would occur for new wireless facilities along freeways, and if there are opportunities to require remediation of existing wireless facilities that are poorly designed as needed (or when leases are up for renewal). Cities/counties can request that new neighborhood serving wireless facilities on Caltrans right of-way be reviewed by the City (e.g. Planning Commission). This issue is particularly prescient as some State agencies sell off surplus land (that may have a tower on it) to private property owners.
Shot Clock Extensions that are workable | If a tolling agreement is requested (to extend the shot clock), consider amending it to include enough time for BOTH initial public hearings and a further extension for any timely appeals (if they are filed).
Also, consider advising local carrier representatives that they should try to be empowered (before the hearing) to sign a tolling agreement (they typically aren’t) at the public hearing, if the clock is running close and a hearing body isn’t supportive of the application and seeks a continuance to revise the design or resolve a siting challenge.
This may avoid instances where the Planner or City Attorney has to request that the hearing body (e.g. Planning Commission) decide on an approval/disapproval motion, because of the impending State’s Shot Clock issue; when the carrier’s representative isn’t empowered (at that moment) to request a tolling agreement, even if the carrier representative is “personally willing” to do so in order to resolve an unanticipated issue.
Define Ridgelines and Vistas | Identifying significant ridgelines or vistas that define a community in public documents (such as the General Plan, Wireless Guidelines, or Zoning Code) can be especially useful in making findings regarding the approval/disapproval (or design recommendations) of wireless facilities. This is especially important for freestanding screened (faux water tank or windmill) or unscreened (monopoles) towers, and Small Cells (especially those proposed on brand new wooden poles), which are also known as Outdoor Distributed Antenna Systems, or the acronym “oDAS” (antennas and equipment cabinets on utility poles in the public right-of-way).
Avoid moratoriums | The new State law may complicate efforts to impose a moratorium on certain types of facilities that represent a new siting type in a given community. Consider, for example, working early on to adopt rules for wireless facilities in the public right-of-way (e.g. height and size limits, noise standards [cooling fans], screening of potential ground-mounted equipment, and neighborhood notification boundaries) if they aren’t already in place.
Coastal Commission Timing and Entitlement Processing | Determine the types of configurations (facility type, location, etc.) that require the issuance of a Coastal Development Permit. If the California Coastal Commission has not certified a Local Coastal Program for the agency, the Coastal Commission may retain approval authority over any required coastal permits. The Coastal Commission may also retain permanent coastal permit authority within certain areas of the jurisdiction. In order to comply with all FCC “shot clock” deadlines, Coastal Commission approval, when required, follow the local agency’s determination. AB 57 does not appear to apply to any reviews or entitlements processed by the Coastal Commission. If the agency requires Coastal Act consideration prior to review and/or approval of the requisite local entitlements (e.g. Conditional Use Permit or Administrative Use Permit), it may be beneficial to reverse the order of review or process all reviews concurrently.
Noticing Materials up front | AB 57 refers to notification materials required for the application. This may complicate instances where additional types of notification materials are required as the project scope changes after the initial submittal. Keep an eye on whether this applies and notify the project sponsor early on.
In some cities and counties, disapproving a principally permitted application, requires a public hearing. Determine if notification materials (e.g. surrounding property owner labels) are required. The carrier may decline to provide such labels (since they weren’t required up front as part of the application) and you’ll have to decide whether to create them in-house, or to waive such a requirement. Or, to require adjacent owner labels for all sites up front (which may not be viable).
Inform Commissioners and the Public | Determine if resolutions of approval (and public notices for the original hearing as well as appeal applications) should include an informational clause about State law potentially abridging timely appeal rights (e.g. up to City Council or Board of Supervisors) for wireless facilities.
If your City/County hasn’t yet seen installations of antennas & equipment in the public right-of-way, consider holding an information session with your community leaders to discuss challenges/opportunities.
Fast Track Appeals | Determine if it is possible to fast-track appeals, since the new State law provides no clear exception for due process. Some folks have raised the concern that the law conflicts with the Permit Streamlining Act. That may have to be decided in the courts one day.
Pre-approval of Screened Co-locations | If approving a co-locatable structure (e.g. a faux water tank), consider adding language to pre-approve a future carrier (via a building permit) if they meet certain metrics (e.g. all transmitting antennas are stealthed, the GPS antenna and ancillary equipment [e.g. access ladders and generator plugs] is not visible from public right-of-way, equipment areas are both screened and adhere to a specific noise standard).
Coordinate intakes | Since a City/County has only 10 days from re-submittal (after the first incomplete letter) to indicate if an application is still incomplete (and pause the clock); consider requiring re-submittal appointments or ensuring administrative support staff (in Building/Planning/Public Works) immediately routes re-submittal materials to the assigned case planner (or public works reviewer).
Fire Station Exemption| The law (automatic approval remedy) would not apply to applications for new facilities and collocations at fire stations. In most cities/counties, the antennas (e.g. thin “whip” antennas typically mounted on the roof) serving public safety (police/fire) purposes often do not require the same process (such as public hearings) as a commercial wireless facility (larger panel antennas and substantial equipment areas).
As the bill wound its way through the State Capitol, local governments raised concern with organizations representing firefighters that the changing language of the legislation was unclear if project review (planning, design, historic preservation and environmental), public hearings, and complex building and fire code (construction plan) review have to all occur within the 90/150 day clocks.
In fact, the first versions (shepherded by Verizon) of the (AB 57) legislation almost inadvertently got rid of the ability for a wireless carrier to even ask for an extension of the clock (tolling agreement); which would have been to the detriment of the wireless industry.
In response to initial opposition by firefighters, the bill’s sponsors inserted the additional language to gain their support. In reality, the bill language likely has no discernable effect since the city/county can still require more application review time anyways for a commercial wireless facility, in its capacity as the fire station’s property owner.
Lastly, it does not appear this bill would resolve some of the types of challenges that occurred with the new “FirstNet” (public safety network) rollout in Los Angeles County. Significant opposition came about (just prior to hearings for AB 57) from LA-area firefighters and neighbors to proposed FirstNet installations that involved approximately 70-foot tall freestanding steel monopoles, with panel antennas, at fire stations in areas such as residential neighborhoods.
Additional Resources
- City of Calabasas Wireless Facility Application Checklists
- San Francisco Wireless Facility Application Checklists
- Best Practices for Rooftop-Mounted Micro Wireless Facilities (Bulletin #3)
Many of the design/siting practices & examples also apply to rooftop-mounted “Macro” (large) facilities. - Design Preferences for Wireless (oDAS/Small Cells) On Wooden Poles
These preferences focus on narrower rights-of-way, where ground-mounted equipment cabinets (computers or batteries and electric meters are strongly disfavored, so all of the equipment remains on the pole. - Slide from a Design Discussion for Wireless Facilities
Presented at a Joint Venture Silicon Valley forum - Presentation on the FCC Report and Order (6409) at the League of California Cities
- League of California Cities article on Section 6409 (starting on Page 11).
- A wireless industry view on State rules for wireless in the public right-of-way. Includes an interesting “history lesson” on how old rules for telegraph lines affect wireless review now.
- Recent City of Rancho Palos Verdes urgency ordinance for wireless facilities in the public right-of-way (oDAS/Small Cells)
MobileNow Act on the horizon | A wholly separate draft (Federal) law recently before some Congress members may prohibit cities/counties from: 1) placing time limits on approvals (e.g. 10 year limits on Conditional Use Permits for wireless that many local governments have in place); 2) limit local* discretion (e.g. noise limits) over (noisy diesel) generators, that are sometimes installed at wireless facilities; and 3) prohibit requiring proof that a new site is needed to meet a service/capacity gap, based on RF signal/noise studies (no more city/county requirements for coverage maps). These rules may further hinder community appropriate wireless siting. *It’s unclear what effect the law, if approved would have on generator permitting by many regional air quality districts in California.
Common items not consistently depicted on plans and photo simulations for new rooftop-mounted sites and modifications to existing sites
· Cable trays with exposed conduit at the ends (e.g. before it enters the building). Consider the use of faux hot water pipes instead. Ensure cable trays do not run over residential windows.
· Caged access ladders that are often left off the original plans and photo simulations. In a few instances (e.g. small residential-historic buildings) the carrier may need to use a man-lift (truck) instead to access the roof.
· Cross bracing. Ensure there are no horizontal bars between a group of freestanding antennas (or those in faux vent pipes). It is not uncommon for carriers to leave such bracing out of photo simulations and the initial set of project plans.
· Doghouses not shown.
· Driveways (new) to access outdoor ground-mounted equipment areas at the back of the property.
· Generator Plugs / Cam Locks not shown on original submittals. Ensure their placement doesn’t detract from a potentially historic storefront. This is the receptacle (socket) that generators on trailers are plugged into, and used power the facility after a major power outage.
· GPS antennas unnecessarily visible from street. In many instances they can be attached to a mid-roof cable tray (the property owner will not count it toward the carriers lease area). GPS antennas can be painted to match another color instead of bright white. Ensure plans show location and height. Some manufacturers (e.g. Commscope) of primary transmitting antennas make versions with a GPS antenna integrated into the top of the antenna.
· HVAC Units (condensers) that may cause a massing and/or noise concern if placed near a residential window.
· Noise. If a new equipment cabinet or backup generator is being installed, ensure the noise levels will be compatible. In some instances a cabinets that meets noise standards may cause concern if it’s placed in a narrow lightwell, and creates an echo effect.
· Radio-Frequency Barriers/Fences not adequately shown on the photo simulations, site plans or elevation sheets. Often a 2.5 foot tall barrier will suffice; instead of a 4-foot tall barrier (especially since we don’t typically see snow drifts piling on most coastal California rooftops that would obscure view of the barrier).
· Radio Relay Units (RRUs/RRHs) left off photo simulations, but shown on project plans in locations that are likely visible from nearby sidewalks. RRUs are essentially computers the size of suitcases which filter/boost power/signal for faster data speeds. Wireless carriers prefer these to be as close to antennas as possible. A large facility may have 6 to 24 of them, per carrier. Often times photo simulations leave out the potential visibility of RRUs and the large bundles of cabling entering the RRU. Many RRUs feature visible manufacturer logos that should be relocated or covered with a screen plate.
· Screening where the underside of the screen box is left exposed with visible dangling cables. Or faux vent pipes on roofs without parapets where the tripod and cabling may end up being visible, if a shroud is not used at the base. Always check to make sure the screening wraps around the side sufficiently, so the equipment is not exposed to view as a pedestrian travels nearby.
· Screening with a “low-cost version” featuring visible protruding bolts and rivet points akin to an old warship. Plans should clearly indicate a smooth surface painted to match adjacent wall surfaces. For a color that should blend well with the sky (for rooftop elements) consider “Ponder” (non-glossy) by Sherwin-Williams, or equivalent.
· Vent stacks and fuel lines for generators (if present)
· Work lights. These are small lights on rods rising a few feet above the primary equipment area. They are used by technicians to work on a facility at night. Sometimes plans and photo simulations do not account for the potential visibility of this item. Consider requiring the work light to be placed on a hinge so it can be swiveled up above the equipment area, but only when needed.
Areas of consideration for Public Right of Way Facilities (known as Small Cells, or oDAS)
Also, consider reaching out to the local electric provider to discuss whether wireless metering (no meter box with glass bubble — uses a small antenna to communicate with the SmartMeter network) or “line drops” (flat rate charge for electricity, without a meter box, as is often used in SDG&E service areas) options are available to reduce the need for additional equipment on the pole, or on a separate freestanding meter pedestal in the public right-of-way.
Consider establishing noise (due to cooling fans), size, height and equipment area rules. In some places the street speed or number of lanes can be a useful metric for where larger oDAS systems (example below) are not allowed. In areas with a wider right-of-way (and no conflict with sidewalk widths for handicapped accessibility), moving all equipment (and meters) off the pole (except the antenna) may be less intrusive.
Even if a brand new pole (twenty to forty foot average height, and located in the public right-of-way) with wireless antennas and equipment boxes appears potentially palatable in a given area (e.g. rural road), there appears to be little reason the local government can’t require steel light poles instead of wooden poles (with cabling hidden inside and a decorative base to hide equipment); or visual mitigation for ground-mounted equipment cabinets such as underground enclosures, or faux decorative wood lattice screen covers (made of metal with texturing and painting to mimic wood) that are under four feet tall, and landscaping combined with modest berming of soil. Or, perhaps placing ground-mounted electronic equipment in fake vintage wood wine/whiskey barrels along mostly treeless rural canyon roads with equestrian trails.
In some cities each encroachment permit (to trench or build in the right of way) require City Council approval. Determine if approval authority should instead be delegated to the Public Works Director. This may be useful as there could be a timing challenge if appeals have to go to another hearing body first, then go to the next City Council meeting (if the appeal is denied).
Some cities include conditions within the utilities conditions permit (UCP) to require utilities (including wireless facilities on wooden utility poles) to be removed if the city begins undergrounding of wooden utility poles.
In some residential or historic areas, if a pole top antenna (instead of a side arm midway up the pole holding up the antenna) is proposed, it may be best to require the entire pole to be replaced, so that the pole can taper toward the top-mount antenna, instead of an unsightly (non-uniform profile and utility prohibitions on painting) bayonet arm (stick holding up an arm with a clamp attached to the top of the pole) rising 3 to 8 feet above the top of the pole to hold up the antenna.
Be skeptical of claims that the overall wooden pole height needs to be increased 13 to 20 feet taller than the existing wood pole in order to meet utility (vertical separation) rules, as they may not actually be true. Also:
- In some instances carriers have been willing to reduce the proposed pole height increase when they know the local government is inclined to deny the proposal (especially in single-family neighborhoods where a 50 foot tall pole would appear out of place).
- At most an 8 foot extension may be needed above high voltage lines (bear in mind some wires are used for fiber-optic or copper wires for communications and do not require the same vertical separation).
- In some instances the use of wireless metering (so that an extra meter box is not needed) and/or relocation of some equipment to a second pole may reduce the need for a pole height increase. In more limited instances, routing power or communication lines from a nearby pole on the same side of the street, first, before crossing the street may reduce the need for a pole height increase in order to accommodate required line separation and vehicle clearance heights as the wires cross a public street.
- Moving a portion of the equipment (e.g. optional battery backup cabinet and shut down switch) to another pole may allow for height reductions.
Article link providing a wireless industry point of view on wireless in the public right-of-way.
· Antennas. Radome style antennas offer a more uniform profile than multiple panel antennas. Multiple short panel antennas are often made even more visible given the bulky mechanical tilt brackets.
However, many slightly longer (newer) panel antennas feature electronic tilt mechanisms built-in, which can allow for a panel antenna to be mounted in a manner that is more flush to the pole/bracket. Manufacturers also offer cable shrouds, which can make each panel antenna “look longer” but reduce visibility of multiple cables entering the bottom of the antenna.
· Battery Backup Cabinets. These are optional elements with lead acid or nickel cadmium batteries to run the facility in the event of power outages. Though with a more limited uptime compared to larger battery systems and generators used at “macro” rooftop or tower mounted sites. There are manufacturers, such as TSi Power, which offer battery cabinets that are about as wide as the pole, though longer, and are generally preferable to bulky enclosures about three times as wide as the pole that may be more noticeable as traveling down the street, and more likely to obstruct views from nearby residential windows.
· Bayonet/Pole Height Extensions. The use of a bayonet (4 x 4 post with metal clamps) to mount an antenna above the top of the pole can appear incongruous (change in profile, and prohibition of painting of the clamps and bayonet by utilities) with the pole. In more sensitive scenic, historic, or residential areas, it may be best to require the carrier to replace the entire pole so that the new pole tapers toward the antenna. Many initial photo simulations do not show the bayonet mounted correctly in terms of location (typically cannot be mounted in the center of the existing poletop), and lack of paint to match the existing pole or antenna.
· Cabling. Encourage the use of solid and narrow conduit pipes or flexible rubber elements running up the outside of wood poles to avoid the cluttered look of multiple power and communications cables. These elements can often be painted (to match the pole) and retain the paint color better than individual cables. Avoid instances where the carrier utilizes a ladder type system running up the pole with conduit offset a few inches from the wood pole. In some instances the photo simulations may not accurately depict this item. For steel poles ensure cabling will run inside the pole with clear notes indicating such on plan sets.
· Combiners/duplexers. These elements are often placed near the antenna and roughly the size of jewelry boxes. For side arm mounted antennas on wood poles, encourage the use of mounting arms with the combiners placed inside. Ensure these elements are shown (if needed) on plans and photo simulations, and ensure that they can be painted to match the pole (doing so will not void a warranty).
· Completeness. It is not uncommon for submittal to leave out known required elements (e.g. nearby freestanding electric meter pedestals, combiners, cabling). Request carrier to affirm in writing if the submittal is complete with respect to all elements needed to operate the facility (including those elements required by the utility and backhaul provider).
· Dual Poles. In locations where the carrier is proposing a substantial number of boxes on a single pole, and the public right-of-way is narrow (making ground mounted equipment problematic) consider requiring the carrier to place a portion of the equipment (e.g. battery backup, electric meter, shutdown switch) on a second nearby (existing) pole.
· Electricity. Encourage the use of wireless metering (small grapefruit sized antenna that connects to existing “SmartMeter” networks) or line drops (carrier pays an estimated flat billing rate for electricity) to avoid the need for new electric meter enclosures (whether on a separate freestanding pedestal or attached to the pole). If an electric meter enclosure is necessary, then require a slim meter enclosure that is about as wide as the pole (instead of bulky meters nearly twice as wide of the pole, that often become graffiti targets).
· Excavation. Ensure the project scope (and environmental review) takes into account excavation that may be needed for new/replacement poles, equipment vaults, or backhaul (underground fiber-optic cables). Avoid instances, as occurred in one town (where the town was not consulted on the project), where the carrier apparently excavated in areas with known Native American burial grounds.
· Fiber (PBX) Boxes. This is a box typically placed near the bottom of a wood pole and used to connect (backhul fiber) the wireless facility to the local “wireline” carrier. Ensure the box is shown, if needed, and ensure it is painted to match other adjacent equipment. Manufacturers of such boxes have not expressed a concern with painting such boxes.
· GPS Antenna. In some, but not all instances the carrier may need to add a GPS antenna. However, many plans and photo simulations often leave out this item. Some manufacturers (e.g. Commscope) of primary transmitting antennas make versions with a GPS antenna integrated into the top of the main antenna. Evaluate opportunities to use the smallest GPS antenna available (e.g. versions the size of a shot cup instead of versions the size of large pear).
· Ground-Mounted Equipment. Ensure plans and photo simulations (not based on Google StreetView photos) accurately depict the height and massing of such elements. Have carrier affirm in writing that no other enclosures are required, including but not limited to electric meter pedestals. Determine if screening elements should be utilized such as an undergounded vault (with an above ground vent stack for ventilation and moisture pump out), soil berming, landscaping, or faux wood lattice screens (made of steel but painted and textured to mimic wood).
· Grounding. For City-owned poles, ensure new ground rods won’t damage sidewalks or pole bases (underground).
· Guy Wires. Determine if new guy wires (used to anchor the pole to the ground) are needed and clearly shown in plans and photo simulations (they are often left out of initial submittals). Replacing the pole may negate the need for guy wires.
· Lights. Add conditions of approval prohibiting flashing lights (visible from nearby residences or sidewalks) on equipment enclosures. Also, if side-arm mounted antennas are being added to existing wooden poles with streetlights, ensure the antenna placement won’t significantly impair street lighting. In some instances it may be best to have the carrier arrange for a longer light arm to be installed by the utility.
· Noise. Determine if equipment uses passive cooling (no noise) or requires cooling fans. If cooling fans are utilized have carrier provide the noise profile on the cover sheet of project plans. In quiet residential areas, carrier may need to either set fans to turn off at night, or turn off based on a thermostat. In other instances a slightly larger enclosure may allow for a larger fan that can turn slower and generate less noise.
· Overhead Wires. In undergrounded areas (no existing wood poles), ensure no new “aerial” or overhead lines (electricity or fiber-optic) are being utilized. It is not uncommon for the initial submittals to omit these items. Request carrier to affirm in writing.
· Paint. Have noted added to cover sheet, site plan and elevation sheets regarding painting of Antennas, Brackets, Cabling/Conduit, Electric Meters (except the glass bubble), Equipment Enclosures, and Fiber Termination Boxes. Non-glossy colors such as Sable (for brown poles) or Ponder (for washed out grey poles near ocean areas), by Sherwin-Williams, may be good choices.
· Pole offset. Ensure the offset of enclosures from the wood poles (gap between pole and boxes) is shown on the plan set. Avoid an offset greater than 4 inches (typical minimum allowed by wooden pole owners in California).
· Photo Simulations. Ensure photo simulations are not based on Google StreetView photos. Photo simulations should show all requirement elements of facility that may be visible (they often don’t) and provide a realistic depiction of cabling/conduit (they often don’t).
· Project Plans. Ensure the carrier uses a nearest building address that nearby neighbors will recognize (if public notification required). Consider requiring a site completion checklist and/or photo simulations to be added to the plans.
If plans and photo simulations are mailed to nearby residents, make sure the address listed by the carrier, is one that residents would recognize (it often isn’t). Consider indicating the noise profile on the cover sheet, such as “maximum of XX decibels from 6 feet away,” or “no noise generation (passive cooling).
Then again thanks to the FCC’s interpretation of “6409,” the day after carrier builds a small, and noiseless system on a non-city owned wouldn’t utility pole, they can demand the ability to replace the system with one featuring larger (refrigerator sized) cabinets with loud cooling fans.
· RF Warning Stickers. Require plans and photo simulations to show location of RF warning stickers. Avoid placement of stickers near ground level on equipment enclosures where they appear cluttered and are not generally needed (sticker should be a few feet below antenna to inform utility personnel who may climb the pole).
· Sidewalk vault lids. Condition approvals to ensure no logos or commercial names are added to new sidewalk vault lids (if needed). Descriptions such as wireless or telecom may be appropriate.
· Stickers and Decals. Condition approvals to require that all prominent logos and decals to be removed, painted over, or filled in (e.g. for indented Ericsson logos on mRRUs), if visible from surrounding sidewalks. Also require that carrier identification stickers be placed on the underside of enclosures, or if not possible, utilize a sticker background that is the same color as the painted enclosure surface) and no larger than 3 inches by 5 inches.
· Trees. Some local governments require the carrier to plant a street tree near the pole to reduce visibility of equipment on the pole.
Ensure that trenching (if needed) and overall facility construction does not damage existing trees (especially heritage trees), or that they are replaced at a 3:1 ratio. Additionally, one challenge often encountered by many local governments is when crews (in spite of rules already in place) running fiber-optic cables begin topping off nearby trees that harms them. It may be advisable to require crews obtaining street closure and/or encroachment permits to affirm in writing they are aware of such requirements, or notify City arborists of pending activity.
See also: Design preferences for oDAS on wooden utility poles
Omar Masry, AICP, and Tripp May testified before the California State Assembly and State Senate on AB 57. The information contained herein does not reflect policy of any government agency.
