New rules in Palo Alto would require Telecoms to get exceptions before they can encroach on residential areas
By Gennady Sheyner, Dec 17, 2019 | Original Palo Alto Weekly article here.
On Dec. 16, 2019, the Palo Alto City Council approved new rules for wireless communication facilities, which should be placed no closer than 600 feet to public schools. Photo by Veronica Weber. Palo Alto took its most dramatic action to date to curtail the proliferation of wireless antennas on street poles on Monday night, when the City Council agreed to restrict such equipment in residential neighborhoods.
The new rules aim to protect residents who have been arguing for years that the telecommunication equipment causes health, aesthetic and noise impacts. They aim to steer the equipment away from residential zones and toward commercial ones. They also attempt to strike a delicate balance: addressing the anxieties of residents without inviting lawsuits from telecommunication companies. In the end, neither side was fully satisfied. Dozens of residents submitted letters to the council on Monday to request tougher measures. At the same time, representatives of Verizon and Crown Castle argued in separate briefs that the standards proposed by staff are overly restrictive and illegal.
The council, for its part, acknowledged that the process of adopting standards for wireless equipment remains a work in progress and that the new rules will likely see further changes. By a 6-1 vote, the council agreed that wireless communication facilities should be placed in non-residential districts unless the council grants an exception.
In addition to giving a preference to equipment in non-residential areas, the newly adopted standards specify that near public schools, wireless equipment should be placed no closer than 600 feet, up from the current standard of 300 feet (an applicant may request an exception to be within 300 feet, but no closer). They also state the city’s preference for placing equipment into underground vaults rather than mounting them on poles. And they establish a 20-foot setback from buildings in all zoning districts with no exception.
The discussion comes at a time when the city is seeing a huge influx of applications from wireless companies, with more than 100 antennas recently winning approval in both commercial and residential districts. Planning Director Jonathan Lait told the council that the proposed standards try to "clearly articulate the city’s interest to locate wireless communication facilities in the commercial and industrial areas and outside the residential areas."
But for many residents, the 20-foot setback doesn’t go nearly far enough. Dozens submitted nearly identical letters arguing that the 20-foot rule "opens the door for the telecom industry to put their ugly, noisy, and potentially hazardous equipment right next to our homes."
Many, including Tina Chow, requested a more meaningful setback. Chow, a professor of civil and environmental engineering at the University of California at Berkeley, recommended adopting a 100-foot setback requirement, with no exception.
"Otherwise, the whole resolution with objective standards can be sidestepped by wireless companies simply asking for exceptions and having them granted," Chow wrote to the council.
Jeanne Fleming, who is one of the leaders of the effort to oppose new wireless antennas, argued that the city should not provide exceptions to service providers seeking to install equipment in residential zones.
"A setback of 20 feet is an invitation to telecom companies to seek exceptions and they’ll place their cell towers wherever they want to," Fleming said.
While many pushed for a 100-foot setback, Lait argued that such a standard would make almost all streetlights and utility poles in residential areas ineligible and put the city in a legally tricky position. The Federal Communications Commission limits local control over communication equipment. In September 2018, the FCC declared in an order that local aesthetic regulations "must be reasonable, objective, non-discriminatory and published in advance" (the order is now being challenged in the Ninth Circuit Court of Appeals).
Several representatives of telecommunication companies argued that the new rules fall afoul of the federal standards. Paul Albritton, who is representing Verizon, submitted a letter arguing that the proposed standards are both ill-advised and illegal. Rather than prohibiting antennas in residential zones, the city should state its preference for commercial, office and manufacturing zones but still allow a "less-preferred location" if there is no preferred alternative nearby that is available and technically feasible.
"The various location restrictions imposed by the Draft Standards would prohibit small cells in broad areas of Palo Alto," Albritton wrote. "The option for an exception to some restrictions does not excuse such unlawful prohibition. Instead, the City should adopt reasonable, location preferences."
The proposed law, Albritton argued, violates FCC’s prohibition on restrictions that "materially inhibit" the ability of telecommunication companies to enhance services.
"With facilities permitted in only non-residential zones, a small cell in a residential zone would require an exception, as would facilities within 300 to 600 feet of schools. … The city cannot rely on the exception process to excuse such prohibitive restrictions because it requires applicants to satisfy a vague, quasi-judicial finding that federal and/or state law compel approval."
Michael Shonafelt, an attorney with the firm Newmeyer Dillion, similarly urged the council not to approve the restrictions, which he argued illegally impede the right of wireless companies to use public rights of way. Shonafelt, who is representing Crown Castle, likened the proposed restriction to "discriminatory treatment."
"The resolution singles out wireless telecommunication carriers and infrastructure developers, prescribing onerous aesthetic and engineering restrictions that do not apply to other utilities in the right of way," Shonafelt wrote.
While the council felt comfortable adopting the regulations, despite these objections, City Attorney Molly Stump warned the council not to adopt the broader restrictions proposed by some residents, including an outright ban on wireless communication equipment in residential areas with no exceptions.
In declaring commercial areas as a preference for new antennas, city staff pointed to the fact that expressways and major arterials offer larger right of way dimensions and, as such, offer greater opportunities to screen or otherwise conceal a proposed wireless communication facility, according to the staff report from the Palo Alto Department of Planning and Development Services. Companies requesting exceptions to install equipment in residential areas would need to demonstrate the infeasibility of doing so in commercial districts.
While the new rules limit the abilities of Telecoms to mount equipment near schools, they don’t go nearly as far as some in the Palo Alto school district had hoped. Todd Collins, president of the Board of Education, cited a resolution that the board passed June calling for a setback of 1,500 feet from schools and requesting that school principals and the district be notified of any applications near school sites.
"I’m not sure what the logic is for the much smaller setbacks," Collins wrote to the council. "There is no value to placing cell towers near schools sites. PAUSD has a total of only 16 school sites in the City of Palo Alto — wireless carriers should be able to give them a wide berth, and still achieve other objectives."
But the council agreed that the standards drafted by staff, while imperfect, represent a major step forward. Councilman Tom DuBois called them "a big improvement" while Mayor Eric Filseth credited staff with "an artful construction that encourages cellphone companies with a combination of carrots and sticks . . . not to put these things in residential neighborhoods without strictly excluding the possibility that if they did a bunch of work, they might be able to."
While the city isn’t outright banning wireless equipment in residential areas, a move that would likely launch a lawsuit, the city is trying to make telecom companies say, "Do I really want to fight that battle in the residential neighborhood? I’ll just stick to the commercial neighborhoods," Filseth said.