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TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: DIRECTOR OF PUBLIC WORKS DATE: SEPTEMBER 2, 2003 SUBJECT: AN UPDATE ON THE CITY’S PROCESS FOR PERMITTING TELECOMMUNICATION AND OTHER SIMILAR ABOVEGROUND FACILITIES IN THE PUBLIC RIGHT OF WAY RECOMMENDATIONS
BACKGROUND In the summer of 2001, staff was notified by both Sprint Communications, and ATT Wireless that they intended to upgrade wireless communication throughout the City by installing a number of new cellular sites in the public right of way. At the October 16, 2001 City Council meeting, staff made a presentation regarding the City’s ability and limitations on regulating the use of the right of way by wireless providers in light of the Telecommunications Act of 1996. At that meeting the proposed procedures for reviewing applications were also discussed by the City Council. The Council received another update about this issue on November 19, 2002, at which time the Council gave direction to staff about further refinements to the process. Since October 2001, the Public Works Department has received approximately 45 applications for new cellular sites within the public right of way. A total of 31 applications have been approved and either have been constructed or are in the process of being constructed. For the most part the process has been very successful, and the construction generated only minor feedback from the public. One reason for this is that the review process utilized the experience gained when several similar cellular sites were installed in the rights of way a number of years ago. Another reason is that the direction provided by the City Council in November 2002, further improved the process. The review process attempts to strike a balance between the fact that the principal issue for most homeowners is view impact versus the fact that the City has limited authority with respect to restricting the use of the street rights of way by wireless providers due to the Federal Telecommunications Act of 1996 and the requirement that users of the public rights of way be treated similarly. Accordingly, staff has developed policies that will apply to all of the entities that wish to place facilities within the public right of way. Since some facilities are completely underground, they do not have a visual impact on the City’s residents and are not discussed in this report. However, it should be noted that public utilities, such as Southern California Edison Company, do have cabinets and other aboveground facilities in the public rights of way, to which these policies will apply. However, because of the unique issues that arise in the cellular telephone context, due to the need for the antennae, this report necessarily focuses on companies that provide cellular telephone service. Elements of a cellular site As the Council will recall, cellular sites generally consist of the following elements:
DISCUSSION Some of the more important principals considered when the review process was established:
Based these principals, the following guidelines and procedures were established for all above-ground facilities that are to be located in the public right of way: Guidelines:
Procedures for aboveground installations:
The Council will recall that individual written notice to the residents has not been used because with respect to cabinets, the City is limited in its ability to regulate their construction by wireless providers, given that other utility companies are generally permitted to install them and frequently have specific requirements about where the cabinet must be located. Further, with respect to the antenna, it is difficult to assess to whom the notification should be sent. Moreover, the antenna ‘mock up’ for a 30-day period is the tool that is used to notify property owners. At the November 19, 2002 Council meeting, the Council discussed the then-existing policies and directed staff to improve the process so that residents would know whom to contact if they had concerns about a mock-up facility. Accordingly, staff now requires that a mock-up facility include a sign that displays the image of the proposed installation, including the cabinet, and the telephone number of the Public Works Department so that a resident knows whom to call if they have questions, concerns or comments. In addition, the Council also gave direction to staff that a new pole might be a viable option to allow in certain circumstances, if the new pole could be located in a manner that would cause fewer impacts on the surrounding area than locating a facility on an existing pole or if the pole would provide an ancillary benefit, such as the installation of a new street light in an area that previously did not have one but is in need of a light. The revised process, as modified by the City Council in November, has been very successful. Residents now know whom they can contact about a mock-up. On several occasions, residents have complained to staff, and changes were incorporated into the proposed facility to address the resident’s concerns. Also, there have been two instances when staff has issued permits for a new pole. One of those sites has been completed to the satisfaction of both the applicant and the surrounding residents. Staff is only aware of 3 or 4 cases where a resident is not happy with the facility that is being approved by staff. Two of these cases may be appealed to the City Council. Appeal of the director’s decision. Staff has assumed that, similar to decisions of the Director of Planning, Building and Code Enforcement, decisions by the Director of Public Works on these applications would be appealable to the City Council. Staff would provide notice of the Director’s decision to the applicant and to any person who expressed interest during the process. If the Council concurs that a right of appeal should be provided, staff recommends that an appeal fee be established by the City Council to offset the City’s cost of processing the appeal. Staff estimates, based on appeal fees that have been established by the City Council for similar planning decisions, that an appeal fee would be in the range of $600 to $700. If the City Council concurs that an appeal fee should be established, staff will prepare a more detailed report justifying the amount of the appeal fee and bring back the establishment of the fee to the City Council at a duly noticed public hearing. CONCLUSION Staff believes that the existing process, as modified by the City Council in November 2002, has been very successful. It balances the City’s goals of preventing the impairment of views and the adverse impacts on residential neighborhoods of new aboveground facilities in the public rights of way with the goals of the utilities and telecommunications providers of providing service to their customers. If the City Council concurs with staff’s assessment, the City Attorney will prepare an ordinance that memorializes these policies for adoption at an upcoming meeting. In the meantime, staff will continue to follow the process that has been established. Staff seeks direction from the City Council as to whether the process is acceptable of if it should be modified. Staff is seeking specific direction from the City Council on the issue of whether there should be an appeal process. If the Council determines that affected parties should have a right to appeal the Director’s decision, then the new ordinance will include the appeal as part of the proposed ordinance. If the City Council determines that an appeal process should be included, then staff is seeking direction from the Council on the issue of whether an appeal fee should be established to cover the City’s cost of processing an appeal. Respectfully submitted, Dean Allison Director of Public Works Reviewed, Les Evans City Manager |
