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HomeMy WebLinkAbout09-18-2019 Supplemental Attachment -Written Communications CITY OF SARATOGA Memorandum To: Mayor Cappello & Members of the Saratoga City Council From: Debbie Bretschneider, City Clerk Date: September 18, 2019 Subject: 2.1. Wireless Telecommunications Facilities Ordinance Update (Written Communications) After publication of the agenda packet for the September 18, 2019 City Council Meeting, this written communication was received for 2.1. Wireless Telecommunications Facilities Ordinance Update. Saratoga Letter Wireless Facilities Ordinance To: Mayor Manny Capello, Vice Mayor Howard Miller, Council Member Rishi Kumar, Council Member Mary-Lynne Bernald, Council Member Yan Zhao From: Cindy Lee Russell, MD Re: Wireless Facilities Ordinance for Saratoga Date: September 15, 2019 Dear Mayor Capello, Vice Mayor Miller and Council Members: I am a physician who visits Saratoga and have friends who live there. I understand the City of Saratoga is looking at a proposal for an Urgency Ordinance to address the FCC Declaratory Ruling and Third Report FCC 18-133 which further impacts local regulation of wireless telecommunications facilities siting. This ruling, which accelerates the deployment of small cell antenna in the public right of way, took effect January 14, 2019. The League of Cities and the U.S. Conference of Mayors, among many others, feels this declaratory ruling by the FCC is an overreach of authority. It requires only a ministerial permit to approve small cell towers in the right of way, not the current conditional use permit that is fully vetted. These cell towers can be batched so dozens of these can be automatically approved at once. There is an increasing sentiment that this FCC Ruling should be overturned to give cities back what little authority they do have in the placement of cell towers as per the Telecommunications Act of 1996. This Act requires proof that there is a significant gap in coverage and that the least intrusive methods should be used. These have been removed with the FCC Ruling. 5G and Small Cell Issues The rollout of 5G has many glitches and hazards that have not been thought through by Federal leadership. These include health effects, privacy, security, surveillance issues, climate change (increase in energy consumption), lower property values, weather forecast interference and liability. Fiberoptic and wired alternatives are safer, more secure and cheaper in the long run than adding cell towers every 300 feet. In addition, many carriers will use these towers and not for just 5G. 4G will be essential in these towers as backhaul. No safety testing has been done for 5G or the mix of frequencies we will be exposed to 24/7, especially for vulnerable populations such as pregnant women and children. https://mdsafetech.org/2019/02/13/no-research-on-5g-safety- senator-blumenthal-question-answered/ FCC Lawsuits I understand that there is a lawsuit from the City of San Jose and dozens of other cities challenging the FCC and the FCC ruling as an overreach of authority. The lawsuit is still pending and will likely not be settled until early 2020. https://mdsafetech.org/2018/12/31/fcc-5g-fast- plan-provokes-lawsuits/ U. S. Conference of Mayors Opposes FCC Order Saratoga is a member of the US conference of mayors, which is in support of the lawsuit brought against the FCC. They feel this is an overreach of authority and it threatens local democracy. CEO Tom Cochran, noted that this is "an unprecedented federal intrusion into local (and state) government property rights that will have substantial and continuing adverse impacts on cities and their taxpayers, including reduced funding for essential local government services, and needlessly introduce increased risk of right-of-way and other public safety hazards.” Statement by U.S. Conference of Mayors CEO & Executive Director Tom Cochran on FCC’s Order Proposing to Usurp Local Property Rights https://www.usmayors.org/2018/09/10/statement-by-u-s-conference-of-mayors-ceo-executive- director-tom-cochran-on-fccs-order-proposing-to-usurp-local-property-rights/ Eshoo- Speier HR 530 and Feinstein SB 2012 Representative Anna Eshoo Introduced HR 530 to Revoke the FCC Ruling. The bill has 51 co- sponsors now and hundreds of municipalities supporting this bill. Senator Feinstein has introduced a companion bill in the Senate. Your neighbors, Palo Alto, Mountain View as well as San Jose, Marin County, Santa Cruz County, Los Angeles, New York, San Diego and many other cities all support this effort. New Ordinance I urge you to carefully look at options to craft the strongest ordinance that gives you as much authority in placement of cell towers. Several aspects of other city ordinances that would be useful to include are listed below. There are legal requirements but other cities are keeping key provisions. The key elements to require are 1) Regular monitoring(yearly) of RF radiation by an independent consultant that is paid by industry along with notification of any changes in cell tower settings 2) Require $5million in general liability insurance. 3) Have set backs and separations for antennas- 1500 feet 4) Have restrictions or preference list for placement of cell towers to keep them from schools, homes, parks, nursing homes or other sensitive areas where humans or wildlife are vulnerable 5) Stipulate that the small cells will be in compliance with the Americans with Disabilities Act 6) Maintain a conditional use permit process and do not separate small cells from cell towers in terms of permitting requirements ( See Sonoma City ordinance- very strong). Small Cells I would like to point out that • These small cells are not really small and have powerful antennas that radiate 3G and 4G telecommunications frequencies. 5G is proposed and in the pilot stages now. • These small cell antenna will be densely spaced i.e. 25-30 per square mile • Small Cells will be close to homes, schools and businesses. • This will impact the Public Right of Ways far more than it ever has • Public Right of Ways are valuable real estate • The cities are asked to give away this real estate without planning for future development and infrastructure which may preclude other communication development i.e. pure fiberoptic which is faster, safer, and more secure Health and Environmental Effects I understand that the 1996 Telecommunications Act prevents a decision based on health or environmental effects of radiofrequency radiation that these cell towers emit and we are not supposed to bring this issue up. Some would argue that it is not the correct interpretation. Nevertheless, the unfortunate and inconvenient reality is that a growing body of scientific literature has determined that not only are there human health effects from RF radiation, there are adverse effects on trees, plants, insects and animals. This radiation is absorbed by and passes through all living organisms and affects cellular processes along the way. There is cumulative damage with RF thus short exposures would not give much evidence of harm. As we are exposed to a mix of other toxins all acting on our immune, endocrine, nervous and metabolic systems, we can rarely determine the cause of any particular chronic illness. https://bioinitiative.org https://mdsafetech.org/2018/11/03/wireless-silent-spring/ The recent $25 million, 10-year study by the National Toxicology Program on Cell Phones and Cancer concluded that cell phone radiation caused DNA damage along with clear evidence of carcinogenicity of the heart, significant findings for brain cancer as well as higher cancer rates above controls for prostate, pituitary, pancreas, liver and lung. A robust study by Dr. De Kun Li of Kaiser looked at 900 pregnant women and found a 3 fold increase in miscarriage at the high levels of everyday exposures. This radiation acts like a toxic exposure similar to chemicals, acting through a process of free radical formation or oxidation. https://mdsafetech.org/ntp-study-2016/ Congressmembers Blumenthal and Eshoo Ask for Evidence of Safety for 5G The evidence of harm from 2,3 and 4G radiofrequencies is contrasted with the lack of safety testing for 5G telecommunications. Congressmembers Blumenthal and our own Representative Anna Eshoo have asked the FCC for scientific proof of safety prior to the rollout of this novel technology. https://mdsafetech.org/2019/02/13/no-research-on-5g-safety-senator-blumenthal- question-answered/ They stated in their letter that “the current regulations were adopted in 1996 and have not been updated for next generation equipment and devices” and “The FCC’s Specific Absorption Rate (SAR) limits do not apply to devices operating above 6 GHz.” 5G frequencies will be from 6 GHz to 100 GHz and above. They highlight that the FCC has acknowledged that “The SAR probe calibration, measurement accuracy, tissue dialectric parameters and other SAR measurement procedures required for testing recent generation wireless devices need further examination.” A response was requested by Dec 17, 2018. There has been no response. In a press conference with Senator Blumenthal author Blake Levitt, noted that thin skinned amphibians and insects will be most affected by this technology with potentially disastrous results. She warns that it is not the power density or tissue absorption but the signaling characteristics that are harmful with damage even at low power levels. In addition, she emphasizes that there are inadequate protective regulations for chronic human exposures for current wireless frequencies and no oversight for wildlife or the environment. She concluded that “The FCC is completely unprepared, unable and possibly unwilling to oversee 5G for safety, even at it barrels toward us.” Although we should be reevaluating the FCC safety guidelines and amending the 1996 Telecommunications Act we are now faced with trying to have the strongest possible ordinance to protect the character, safety and health of the city. Boulder Colorado Legal Expert Report A wonderful reference and god summary is from Boulder Colorado, who hired an attorney to look at how to maintain as much authority as possible. Boulder Colorado Has Expert Legal Opinion to Maintain Local Control of Small Cell Towers. Policy Report: Small Cell Facilities in Boulder, Colorado- June 2019 City Ordinances that are strong I have looked at several different urgency ordinances in California including Los Altos, Mill Valley, Sonoma City, Palo Verdes, Glendora and Belveldere. They have taken the opportunity to craft emergency ordinances that reflect the current law with regards to siting of wireless communications facilities including small cells, maintaining as much control and oversight as possible. Here are additions I have found in these other ordinances that would be important to consider. Sonoma City has a very strong ordinance. Los Altos just passed an ordinance in keeping with the wishes of the community. It is a strong ordinance and I would advise modeling your ordinance after that of Los Altos., and includes a robust noise clause. The language for the ADA compliance I would change to the following - All facilities shall be in compliance with the Americans with Disabilities Act (ADA). (New Palos Verdes) The links to the City ordinances are listed below. Examples of City Small Cell Wireless Facilities Emergency Ordinances • City of Belvedere, California https://www.cityofbelvedere.org/DocumentCenter/View/5641/Item-11 • Calabasas, California (very strong) . https://www.cityofcalabasas.com/pdf/wireless/Wireless_Facility_Ordinance- w_CC_Changes052312.pdf • Fairfax, California. Fairfax Emergency Wireless Ordinance 2018 • Los Altos, California (very strong) passed Aug 5, 2019 • Ordinance Wireless Facilities https://www.losaltosca.gov/sites/default/files/fileattachments/city_council/page/4 8421/2019-08-05_19-460_1.pdf • Resolution No. 2019-35 of the City of Los Altos Adopting Design and Siting Guidelines and Standards for Wireless Facilities.https://www.losaltosca.gov/sites/default/files/fileattachments/city_council/page/4 8421/resolution_no._2019-35.pdf • Fee Chart for Wireless Facilities in Los Altos, California. Resolution 2019- 36.https://www.losaltosca.gov/sites/default/files/fileattachments/city_council/page/48421/r esolution_no._2019-36.pdf • City of Mill Valley, California (strong) http://cityofmillvalley.granicus.com/MetaViewer.php?view_id=2&clip_id=1290&meta_id= 59943 • Palos Verdes, California (Medium) New Ordinance 2019 – https://www.rpvca.gov/DocumentCenter/View/13741/RPV—ROW-Wireless- Telecommunications-Urgency-Ordinance-April-2-2019. Old Ordinance 2016- https://www.rpvca.gov/DocumentCenter/View/7952/RPV—ROW-Wireless-Telecommunications- Urgency-Ordinance • Petaluma, California (setbacks good) https://www.codepublishing.com/CA/Petaluma/html/Petaluma14/Petaluma1444.html • Sonoma City, California (strong) https://sonomacity.civicweb.net/document/17797 • Suisun, California (medium) https://www.suisun.com/small-cells/ Key Points of Local Ordinances 1. FCC Clause: Have a clause voiding the agreement or requiring it modification in the event of a regulatory change (overturning the FCC Order), according to a report by Next Century Cities 2. Maintain that all wireless facilities both small cells and cell towers require a Conditional Use Permitby the planning department followed by an encroachment permit. (remove Minor wireless permit section 18.41.050 and add all wireless communications facilities to section 18.41.060) which is reopened every 3 to 5 years- Sonoma City, California 3. Significant Gap in coverage: Maintain requirement for significant gap in coverage to be identified for approval of both small cells and cell towers 4. Least Intrusive Methods: Maintain requirement for the least intrusive methods to fill the gap for both small cells and cell towers.A justification study which includes the rationale for selecting the proposed use; if applicable, a detailed explanation of the coverage gap that the proposed use would serve; and how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed facility and why said alternatives are not a viable option. (Old-Palos Verdes) 5. 1500 Foot Setback from other small cell installations: Every effort shall be made to locate small cell installations no less than 1500 feet away from the Permittee’s or any Lessee’s nearest other small cell installation, or within ______ feet of any permanent residential dwelling. (ART Ordinance) Setbacks Between Small Cells:Calabasas, Petaluma, Fairfax, Mill Valley, and San Ramon (all California) require 1,500 feet between SCFs. (Boulder, CO Recommendation-Boulder Colorado Small Cell Ordinance Legal Opinion Policy Report) 6. Radiofrequency Data Report Requirement: Have a thorough radiofrequency data requirement as part of the submittal for consultants. For all applications require that both an RF Compliance Report signed by a registered Professional Engineer, and a supporting RF Data Request Form as Attachment A as provided is mandatory. RF DATA SHEET (can be an attached form to be filled out and submitted with application). 7. Preferred or Disfavored Locations: In addition to residential areas, designate areas where cell towers are disfavored and not permitted, i.e. near schools, residential areas, city buildings, sensitive habitats, on ridge lines, public parks, Historic Overlay Districts, in open spaces or where they are favored i.e. commercial zoning areas, industrial zoning areas. (Boulder, CO Repor-tBoulder Colorado Small Cell Ordinance Legal Opinion Policy Report) 8. Disfavored Location: Every effort should be made to avoid placement of small cell installations in close proximity to residences, particularly from sleeping and living areas. Viable and defendable setbacks will vary based on zoning. (ART ordinance) 9. Prohibited Zones for Small Cells: Prohibits small cell telecommunication facilities in residential zones and multi-family zoning districts (Mill Valley) 10. Require Mock-up: Require full-size mock-up of proposed SCFs and other pertinent information in order to adequately consider the same potential impacts. It also may want to adopt Larkspur’s approach to require construction drawings, a site survey, and photo simulations. (Boulder, CO Report ) 11. Public notifications of planning commission hearings; Either in newspaper, website no less than 14 days prior to the date of the hearing. 12. Notification of all property owners within 500 feet of the proposed installation within X timeframe 13. Drip line of tree/heritage trees: No facility shall be permitted to be installed in the drip line of any tree in the right-of-way…. (Old-Palos Verdes) 14. Speculative Equipment Prohibited. The city finds that the practice of “pre- approving” wireless equipment or other improvements that the applicant does not presently intend to install but may wish to install at some undetermined future time does not serve the public’s best interest. The city shall not approve any equipment or other improvements in connection with a Wireless Telecommunications Facility (Old-Palos Verdes) 15. Americans with Disabilities Act (ADA) Compliance. All facilities shall be in compliance with the Americans with Disabilities Act (ADA). (New Palos Verdes) 16. Authorization from Property Owner: If the facility will be located on or in the property of someone other than the owner of the facility (such as a street light pole, street signal pole, utility pole, utility cabinet, vault, or cable conduit), the applicant shall provide a duly executed written authorization from the property owner(s) authorizing the placement of the facility on or in the property owner’s property. (Palos Verdes) 17. Community Meeting: The applicant would be required to hold a community meeting at least two weeks prior to the planning commission hearing on the use permit. (San Anselmo) 18. Noise Complaints: If a nearby property owner registers a noise complaint, the city shall forward the same to the permittee. Said compliant shall be reviewed and evaluated by the applicant. The permittee shall have ten (10) business days to file a written response regarding the complaint which shall include any applicable remedial measures. If the city determines the complaint is valid and the applicant has not taken any steps to minimize the noise, the city may hire a consultant to study, examine and evaluate the noise complaint and the permittee shall pay the fee for the consultant if the site is found in violation of this chapter. The matter shall be reviewed by the director. If the director determines sound proofing or other sound attenuation measures should be required to bring the project into compliance with the Code, the director may impose conditions on the project to achieve said objective. (Old- Palos Verdes) 19. Transfer of Permit: The permittee shall not transfer the permit to any person prior to the completion of the construction of the facility covered by the permit, unless and until the transferee of the permit has submitted the security instrument required by section 12.18.080(B)(5). (Palos Verdes) 20. General Liability Insurance $ 2-5 million to protect the City: The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of commercial general liability insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence and Four Million Dollars ($4,000,000) in the aggregate, that fully protects the city from claims and suits for bodily injury and property damage. The insurance must name the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least a A:VII in the latest edition of A.M. Best’s Insurance Guide, and include an endorsement providing that the policies cannot be canceled or reduced except with thirty (30) days prior written notice to the city, except for cancellation due to nonpayment of premium…. (Old- Palos Verdes) 21. Endangerment, interference: No person shall install, use or maintain any facility which in whole or in part rests upon, in or over any public right-of-way, when such installation, use or maintenance endangers or is reasonably likely to endanger the safety of persons or property, or when such site or location is used for public utility purposes, public transportation purposes or other governmental use, or when such facility unreasonably interferes with or unreasonably impedes the flow of pedestrian or vehicular traffic including any legally parked or stopped vehicle, the ingress into or egress from any residence or place of business, the use of poles, posts, traffic signs or signals, hydrants, mailboxes, permitted sidewalk dining, permitted street furniture or other objects permitted at or near said location. 22. Independent Expert. The director is authorized to retain on behalf of the city an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The review is intended to be a review of technical aspects of the proposed wireless telecommunications facility and shall address any or all of the following: xxxx (Old- Palos Verdes) 23. Annual Recertification: Each year, commencing on the first anniversary of the issuance of the permit, the Permittee shall submit to the Town an affidavit which shall list all active small cell wireless installations it owns within the Town by location, certifying that (1) each active small cell installation is covered by liability insurance in the amount of $2,000,000 per installation, naming the Town as additional insured; and (2) each active installation has been inspected for safety and found to be in sound working condition and in compliance with all federal safety regulations concerning RF exposure limits. (ART Ordinance) 24. Random Testing for RF Compliance: The Town shall have the right to employ a qualified RF engineer to conduct an annual random and unannounced test of the Permittee’s small cell wireless installations located within the Town to certify their compliance with all FCC radio- frequency emission limits as they pertain to exposure to the general public. The reasonable cost of such tests shall be paid by the Permittee. (ART Ordinance) 25. Violation of compliance Notification: In the event that such independent tests reveal that any small cell installation or installations owned or operated by Permittee or its Lessees, singularly or in the aggregate, is emitting RF radiation in excess of FCC exposure guidelines as they pertain to the general public, the Town shall notify the Permittee and all residents living within 1500 feet of the small cell installation(s) of the violation, and the Permittee shall have forty-eight (48) hours to bring the small cell installation(s) into compliance. Failure to bring the small cell installation(s) into compliance shall result in the forfeiture of all or part of the Compliance Bond, and the Town shall have the right to require the removal of such installation(s), as the Town in its sole discretion may determine is in the public interest. (ART Ordinance) 26. Non- acceptance of Applications: Where such annual re-certification has not been properly or timely submitted, or equipment no longer in use has not been removed within the required 30- day period, no further applications for small cell wireless installations will be accepted by the Town until such time as the annual re-certification has been submitted and all fees and fines paid. (ART ordinance) 27. Order of preference – Location. The order of preference for the location of small cell installations in the Town, from most preferred to least preferred, is:1. Industrial zone 2. Commercial zone 3. Mixed commercial and residential zone 4. Residential zone (ART Ordinance and New Palos Verdes) 28. Fall Zone: The proposed small cell installation shall have an adequate fall zone to minimize the possibility of damage or injury resulting from pole collapse or failure, ice fall or debris fall, and to avoid or minimize all other impacts upon adjoining property 29. 1500 Foot Setback from other small cell installations: Every effort shall be made to locate small cell installations no less than 1500 feet away from the Permittee’s or any Lessee’s nearest other small cell installation, or within ______ feet of any permanent residential dwelling. (ART Ordinance) 30. 1000 Foot Setback From Residencies : The setback for Calabasas, CA is 1,000 feet (Bolder, CO Report), 500 ft Setback from residencies (Petaluma). 31. Aesthetics and Undergrounding: All equipment not to be installed on or inside the pole must be located underground, flush to the ground, within three (3) feet of the utility pole. Each installation is to have its own dedicated power source to be installed and metered separately. 32. Aesthetic Requirements: “Law firm Baller Stokes & Lide highlighted the following aesthetic considerations that local governments can consider: “Size of antennas, equipment boxes, and cabling; 1) Painting of attachments to match mounting structures; 2) Use of shrouds, stealth techniques, or other camouflage; 3) Flush-mounting of antennas; 4) Placement of equipment in the pole base rather than on the outside of the pole; 5) Consistency with the character of historic neighborhoods; 6) Minimum spacing between attachments;” and 7) Aesthetic standards for residential neighborhoods, including “any minimum setback from dwellings, parks, or playgrounds and minimum setback from dwellings, parks, or playgrounds; maximum structure heights; or limitations on the use of small, decorative structures as mounting locations.” (Boulder, CO Report) Recommendations: 1) Instruct Staff to draft and enact an urgency ordinance modeled after the Los Altos Wireless Facilities ordinance 2) Review the Boulder Colorado legal opinion with regards to crafting an ordinance 3) Review the ordinance elements in those cities that have crafted strong local ordinances 4) Take time to review this Thank you for your consideration and service to this truly special community. Cindy Russell, MD 650-208-9560 1 Statement by Leonard Shen for Saratoga City Council September 18, 2019 Thank you for the opportunity to speak with you this evening. I am here to present a petition signed by 21 Saratoga residents, and another Change.org online petition signed by approximately 100 additional people, collected in just the last week after I became aware of this issue. I, my wife and three daughters are long-time residents of Saratoga, living in the Beauchamps neighborhood. I also spent two decades working as a senior official of the US Environmental Protection Agency, trial attorney at the Justice Department’s Environmental Enforcement Section, chief counsel of a U.S. Senate Environmental Subcommittee, and in house environmental corporate counsel. We respectfully ask the City Council to either 1) delay revising the existing ordinance until the conclusion of a pending lawsuit against the underlying FCC regulation, or else 2) instruct new outside counsel to swiftly draft options for a revised ordinance which would appropriately streamline installation of new small cell technology in Saratoga. • A delay of a few months is warranted because the FCC regulation which is intended to be implemented by the ordinance is currently the subject of litigation in the US Court of Appeals for the 9th Circuit, with Reply Briefs having recently been filed and only oral argument remaining. That litigation has been brought by, among others the US Conference of Mayors, representing over 1,400 municipalities – INCLUDING SARATOGA. It would be inconsistent with the litigation position of the US Conference of Mayors for Saratoga to move forward during the litigation with an implementing regulation, particularly one which places minimal constraints on the unfettered rollout of the technology. • Any applications granted in the interim should be conditional permits which would need to be reopened should the FCC regulation be struck down. The delay, or alternatively drafting of a new, more balanced ordinance, is based on several points raised in the attached petition pointing to potential harmful health effects, property devaluation, loss of local sovereignty, increased energy use and costs, and other problems associated with the unfettered installation of 2 cell towers which would be permitted under the current draft ordinance. I and those who have signed the petitions (and there will no doubt be more given more time) counsel against rushing to pass such an ordinance when these risks must be carefully weighed and a healthy public policy debate had. I also wanted to address a couple of key points which I understand the City Councilmen may have. Contention: The installation of more cell towers will result in LESS exposure to individuals than having them spaced farther apart, because then the cell phones in people’s pockets will not have to work as hard to project signals to reach the nearest cell tower. Answer: this disregards several points: 1) With more cell towers, there will be more ambient radiation happening 24-7. Not just when people have cell phones on and in their pocket. At homes, when people are asleep and not carrying cell phones on their bodies, in the shower, easily a third or half of the time there will not be the maximum exposure of cellphones on the body. By contrast, there will now be 24-7 exposure from the nearby cell tower—including for babies and young children and elderly who DON’T carry cell phones on their body. 2) There is a big difference between cell phones which one can choose to turn off, and the INVOLUNTARY exposure through a new cell tower, where the only response by a concerned individual is to move to Los Altos or install expensive shielding in their house. The consequences of new cell antennas are a lot more expensive to deal with than turning off a cell phone. 3) 5G is unreliable and frequently defaults to 4G or 3G, up to 70% of the time in field studies conducted by industry. This means two things: the wireless companies must increase the power output—including amping up the broadcasting power from the cellphone in your pocket as well as from the towers! 4) And, when the defaults occur to 4G or 3G, now those 4G or 3G transmissions will be occurring-- but this time with cell towers much closer to people and children. 5) Many recent studies show that exposure at even low levels can have significant human and environmental impacts. Just a few examples: 3 a. Tumor promotion by exposure to radiofrequency electromagnetic fields below exposure limits for humans” is a replication study that used very, very low Radio frequency (RF) exposures and combined the RF with a known carcinogen. Researchers found elevated lymphoma and significantly higher numbers of tumors in the lungs and livers in the animals exposed to both RF and the carcinogen, leading researchers to state that previous research (Tillman 2010) was confirmed and that “our results show that electromagnetic fields obviously enhance the growth of tumors” (Lerchl 2015). b. “Exposure of Insects to Radio-Frequency Electromagnetic Fields from 2 to 120 GHz” published in Scientific Reports is the first study to investigate how insects (including the Western honeybee) absorb the higher frequencies (2 GHz to 120 GHz) to be used in the 4G/5G rollout. The scientific simulations showed increases in absorbed power between 3% to 370% when the insects were exposed to the frequencies. Researchers concluded, “This could lead to changes in insect behaviour, physiology, and morphology over time….” (Thielens 2018) c. “The Impact of radiofrequency radiation on DNA damage and antioxidants in peripheral blood lymphocytes of humans residing in the vicinity of mobile phone base station” is a research study that compared people living close (within 80 meters) and far (more than 300 meters away) from cellular antennas and found that the people living closer had several significant changes in their blood predictive of cancer development (Zothansiama 2017). d. “Mortality by neoplasia and cellular telephone base stations” is a 10 year study by the Belo Horizonte Brazil Health Department and several universities in Brazil that found an elevated relative risk of cancer mortality at residential distances of 500 meters or less from cell installations (Dode 2011). Shortly after this study was published, the city prosecutor sued several cell phone companies and requested that almost half of the city’s antennas be removed. Many antennas were dismantled. Contention: our hands are tied because of the existing City Ordinance which has resulted in nearly all cell installations being approved, and because of the national 4 regulations, so Saratoga has no choice but to allow streamlined approval of cell towers. Answer: Several years ago, the City Council passed an ordinance with just a few findings which would be a basis for denying a cell application. As the authors, you can simply update that with a new ordinance which more appropriately takes into account other considerations. Since then, dozens of cities around the state (and hundreds around the country) have enacted ordinances much more stringent than Saratoga’s – and none of those ordinances have been challenged in court by the wireless industry. Of course it is good to avoid lawsuits against the city—but at what point does the hypothetical fear of a lawsuit prevent the Council from doing what their constituents want, and perhaps you personally may fear when you object to a cell tower near your own home? Also, for many years the insurance industry has refused to insure anyone against lawsuits due to wireless radiation exposure. The city and others may well face lawsuits for personal and property damage, without insurance coverage, if they proceed to facilitate such a rollout. I would respectfully ask the Council to hire a fresh outside law firm, this time with instructions to swiftly develop and present three options—high, medium and low risk of litigation challenge—for ordinances which would more appropriately balance the concerns of citizens for health and property devaluation. The City Council has the power to deconstruct the box which it created for itself four years ago. A lot of law has changed, and is still changing (including the DC Circuit striking down part of the same FCC regulation just last month, and the pending 9th Circuit challenge by San Jose and the US Conference of Mayors). Conclusion. There are enough questions associated with 5G that we should not rush to pass an ordinance which would open the door wide in Saratoga. Especially when neighboring cities with whom Saratoga will be competing in property value and reputation are passing more stringent regulation. Do we want to be the city with the lowest property values because of a hasty decision this month? 5 A decision today could result in each of you, and me, having a cell tower posted right outside our bedroom window, next to our children’s playgrounds or schools, in a park where we like to enjoy nature without worry. It could impact yours and mine property value even if we ourselves have questions about the health effects, since there will be plenty of potential buyers who will worry and look elsewhere if they see a cell tower next to the house. I would be delighted to work with City Council attorney on swiftly preparing an appropriate and legal ordinance once the litigation is concluded, should it still be necessary. ANN AHRENS BECK Assistant Vice President - Senior Legal Counsel AT&T Services, Inc. 208 S. Akard Street Room 3026 Dallas, TX 75202 Phone: 214.757.5748 E-Mail: ann.beck@att.com September 17, 2019 VIA E-MAIL City of Saratoga City Council 13777 Fruitvale Avenue Saratoga, CA 95070 Re: AT&T’s Comments on the City of Saratoga’s Amendments to Chapter 15 of the Saratoga City Code Dear Mayor Cappello, Vice Mayor Miller and Councilmembers Kumar, Bernald and Zhao: I write on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (AT&T) to provide comments on the City of Saratoga’s proposed amendments to Chapter 15 of the Saratoga City Code (“Proposed Amendments”). AT&T appreciates the City taking time to revise its wireless facilities siting regulations in light of changes to applicable state and federal laws, including the Federal Communications Commission’s Infrastructure Order and regulations.1 With more than 72% of Americans relying exclusively or primarily on wireless telecommunications, it is especially important to encourage responsible deployments to provide and improve wireless services consistent with applicable law. Unfortunately, the Proposed Amendments would establish new rules at odds with state and federal laws. In particular, even though AT&T worked with members of Saratoga’s Community Development Department, who indicated that the Proposed Amendments are 1See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-133 (September 27, 2018) (“Infrastructure Order”). City of Saratoga City Council September 17, 2019 Page 2 of 6 intended to create an administrative process for a significant number of proposed small cell facilities, the Proposed Amendments as drafted actually prohibit many types of small cells and severely limit siting opportunities. To address these problems, AT&T provides a redline to assist the City in developing regulations to better comply with applicable laws and meet the City’s intent to incentivize preferred siting options. AT&T offers the following summary of applicable laws along with specific comments on the Proposed Amendments. AT&T respectfully asks that the City consider these and other comments from the wireless industry to help make needed changes and avoid unlawful prohibitions on wireless services. Key Legal Concepts The Federal Telecommunications Act of 1996 (“Act”) establishes key limitations on local regulations. The Act defines the scope and parameters of the City’s review of AT&T’s applications. Under the Act, the City must take action on AT&T’s applications “within a reasonable period of time.”2 The FCC has established and codified application “shot clocks” to implement this timing requirement.3 And the FCC has made clear that the City must grant all necessary approvals and authorizations within the applicable shot clock.4 The Act also requires that the City’s review of AT&T’s applications must be based on substantial evidence.5 Under the Act, state and local governments may not unreasonably discriminate among providers of functionally equivalent services.6 The Act prohibits a local government from denying an application for a wireless telecommunications facility where doing so would “prohibit or have the effect of prohibiting” AT&T from providing wireless telecommunications services.7 The FCC has ruled that an effective prohibition occurs when the decision of a local government materially 2 47 U.S.C. § 332(c)(7)(B)(ii). 3 See 47 C.F.R. §§ 1.6001, et seq. 4 See Infrastructure Order at ¶¶ 132-137. 5 47 U.S.C. § 332(c)(7)(B)(iii). 6 47 U.S.C. § 332(c)(7)(B)(i)(I). 7 47 U.S.C. § 332(c)(7)(B)(i)(II). City of Saratoga City Council September 17, 2019 Page 3 of 6 inhibits wireless services.8 The FCC explained that a local government “could materially inhibit service in numerous ways – not only by rendering a service provider unable to provide existing service in a new geographic area or by restricting the entry of a new provider in providing service in a particular area, but also by materially inhibiting the introduction of new services or the improvement of existing services.”9 Under the Infrastructure Order, the FCC established a standard for local aesthetic regulations of small wireless facilities (commonly called “small cells”). To be lawful, and to avoid preemption, local design guidelines must be (1) reasonable (i.e., has to be technically feasible), (2) no more burdensome than those applied to other infrastructure deployments, and (3) objective and published in advance.10 AT&T has a statewide franchise right to access and construct telecommunications facilities in the public rights-of-way. Under Public Utilities Code Section 7901, AT&T has the right to access and construct facilities in public rights-of-way in order to furnish wireless services, so long as it does not “incommode” the public use of the public right-of-way. And under Section 7901.1, AT&T’s right is subject only to the City’s reasonable and equivalent time, place, and manner regulations. Specific Comments on the Proposed Amendments 1. The Proposed Amendments as Drafted Unlawfully Prohibit Wireless Services. Despite the City’s intent to provide a streamlined, administrative process for small cell sites meeting the development standards proposed in new Section 15-44.025, the Proposed Amendments read as a broad set of prohibitions, which violates the FCC’s standards. Specifically, Section 15-44.020(a) states “No building permit or encroachment permit shall be issued for a small wireless facility to be located on an existing wooden utility pole within the public right-of- way unless the small wireless facility conforms to all of the development standards 8 See Infrastructure Order at ¶¶ 35-42; see also, In the Matter of California Payphone Assoc. Petition for Preemption, Etc., Opinion and Order, FCC 97-251, 12 FCC Rcd 14191 (July 17, 1997). 9 Infrastructure Order at ¶ 37. 10 See id. at ¶ 86. City of Saratoga City Council September 17, 2019 Page 4 of 6 prescribed in Section 15-44.025.” This wording clearly is an absolute prohibition on small cells that do not meet the criteria listed in proposed Section 15-44.025. City Staff assures AT&T that this is not the intent, explaining that the intent is to direct consideration of small cells that do not meet these criteria into a design review process. To achieve that intent, and to avoid violating state and federal laws by prohibiting the vast majority of siting options, the City needs to revise the Proposed Amendments to clarify its intentions. AT&T’s attached redline suggests minimal edits to achieve these objectives. Section 15-44.025(a) of the Proposed Amendments also limits the scope of the City’s administrative process to small cells proposed on major or minor arterial streets. This limitation will effectively prohibit AT&T from serving customers throughout large portions of the City in violation of the Act. Small cells are low-profile, low-power facilities that need to be placed near where residents rely on wireless connectivity the most: in their homes. To allow AT&T to serve its customers, the City also should authorize placements along collector streets. Without this change, and given the prohibitory language in the Proposed Amendments, almost all of AT&T’s proposed small cells will be banned, which would violate the Act. In fact, prohibiting small cell placements on collector streets violates the FCC’s aesthetic standard because it is more burdensome than restrictions imposed on other infrastructure deployments. For example, Beaumont Avenue, Herriman Avenue and Sobey Road are all residential collector streets lined with existing wood utility poles that house other utility facilities. But under the Proposed Amendments, collocations of small cells on these poles is prohibited. To avoid this further violation, AT&T’s proposed redline adds language under Section 15-44.025 to allow small cells on collector streets. 2. Public Meeting. Section 15-44.020(c) of the Proposed Amendments requires a public hearing on the application for a wireless telecommunications facility. While AT&T is happy to work with the City and is interested in hearing from members of the public, conducting a public meeting for all or nearly all wireless applications is unduly burdensome. And this is discriminatory to the extent not applied to other right-of-way utility deployments. Further, the City should limit notice for a public meeting regarding a small cell application to City of Saratoga City Council September 17, 2019 Page 5 of 6 property owners within 100 feet of the boundaries of the site as small cells are by definition small and are not out-of-character given existing infrastructure in the right-of-way. 3. Concealment. The City’s design standards in the Proposed Amendments require concealment. While AT&T is willing to work with the City on concealment, under the FCC’s aesthetic standard for small cells, concealment cannot be required to a greater extent than imposed on other infrastructure deployments in the rights-of-way. For example, there are non-concealed electric distribution facilities throughout the City’s rights-of-way. 4. Prohibition on Side-Mounted Antennas. Based on the absolute prohibition language under Section 15-44.025(d), the Proposed Amendments prohibit small cells with side- mounted antennas. This prohibition may ban certain technologies. And the pole owner or GO95 restrictions may only allow side-mounted antennas. Any restrictions on side-mounted antennas must be objective and nondiscriminatory to avoid violating the FCC’s aesthetic standard for small cells. 5. Antenna Height. In Section 15-44.025(e), antennas cannot extend more than 48 inches above the maximum separation from the supply lines required by GO95. Imposing such a height requirement for wireless facilities in the public rights-of-way, especially small cells, discourages the aesthetically pleasing designs. 6. Accessory Equipment Volume. AT&T objects to Section 15-44.025(f), which states that accessory equipment for small cells cannot exceed 9 cubic feet in volume. This unduly limits equipment configurations and site design and may prohibit current and future technologies. To avoid unlawful prohibitions of wireless services, the City must revise this provision to incorporate more flexibility into the Proposed Amendments. 7. Prohibition on Ground-Mounted Equipment. Section 15-44.025(f) of the development standards also prohibits ground-mounted equipment. But sometimes ground-mounted electric meter pedestals are the only feasible option for providers based on the electric provider’s requirements. AT&T will certainly work with the City on design, but the City must avoid blanket prohibitions. What’s more, based on a view of existing infrastructure City of Saratoga City Council September 17, 2019 Page 6 of 6 deployments in Saratoga, this prohibition appears to be unlawful under the FCC’s standards because it is not imposed with respect to other infrastructure deployments. 8. Appeals. Section 15-44.040 authorizes appeals. AT&T is concerned that the appeal process for applications that would require a public hearing will put the City’s compliance with the shot clock at risk for nearly every application. The City should consider eliminating appeals for small cells that may otherwise add unnecessary pressure on the City to meet the FCC’s shot clocks. Conclusion AT&T appreciates the City’s intent to provide a streamlined process for certain small cells. But the City needs to make a few minor revisions to meet that intent, and to accommodate new and emerging technologies and changes in law. Doing so will encourage responsible deployments and lessen the City’s risk of violating state and federal laws, all to the great benefit of the City’s residents and businesses. Sincerely, Ann Ahrens Beck cc: Debbie Pedro, Community Development Director Christopher Riordan, Senior Planner Richard Taylor, Esq., City Attorney Attachment: AT&T Redline of Proposed Amendments Page 1 Attachment A Ordinance No. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SARATOGA AMENDING CITY CODE ARTICLE 15-44 RELATED TO WIRELESS COMMUNICATION FACILITIES REGULATIONS The City Council of the City of Saratoga finds that: 1. The next generation of wireless technology increasingly being deployed is typically referred to as “small cells”; 2. Generally, the term “small cell” refers to the smaller coverage area of the wireless signal rather than traditional macro-cell tower that can cover miles in each direction; 3. Small cell facilities are often proposed to be attached to existing utility poles in the public right-of-way; 4. The Federal Communications Commission (FCC) issued Declaratory Ruling and Third Report and Order; FCC 18-133, adopted September 25, 2018 which places limitations on the City of Saratoga to regulate small cells including shot clocks for acting on applications; 5. The City’s existing wireless regulations do not address the limitations in FCC-133; 6. The proposed revisions to Article 15-44 (Wireless Telecommunications Facilities) include a streamlined process to review and approve small cell facilities on existing utility poles in the public right-of-way which include the issuance of an Encroachment Permit from the Public Works Department and a Building Permit from the Building Division of the Community Development Department. 7. The Planning Commission of the City of Saratoga considered the attached ordinance at their meeting of September 11, 2019 and recommended that the City Council approve the proposed amendments to City Code Article 15-44 subject to certain amendments. 8. The City Council of the City of Saratoga held a duly noticed public hearing on September 18, 2019 and after considering all testimony and written materials provided in connection with that hearing introduced this ordinance and waived the reading thereof. The City Council adopted this ordinance after a second reading was waived at a duly noticed public meeting on October 2, 2019. Therefore, the City Council of the City of Saratoga does ordain as follows: Section 1. Adoption. The Saratoga City Code is hereby amended as set forth in Attachment A. Page 1 Section 2. California Environmental Quality Act. Pursuant to the California Environmental Quality Act (“CEQA”), this action to update the City Code regarding Wireless Telecommunications Facilities is exempt from CEQA. This ordinance is exempt under California Code of Regulatio ns, Title 14, Section 15061(b)(3) which provides that CEQA applies only to projects which have the potential of causing a significant effect on the environment, and that where, as here, it can be seen with certainty that there is no reasonable possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Section 3. Severance Clause. The City Council declares that each section, sub-section, paragraph, sub-paragraph, sentence, clause, and phrase of this ordinance is severable and independent of every other section, sub- section, sentence, clause, and phrase of this ordinance. If any section, sub -section, paragraph, sub-paragraph, sentence, clause, or phrase is held invalid, the City Council declares that it would have adopted the remaining provisions of this ordinance irrespective of the portion held invalid and further declares its express intent that the remaining portions of this ordinance should remain in effect after the invalid portion has been eliminated. Section 4. Publication. A summary of this Ordinance shall be published in a newspaper of general circulation of the City of Saratoga within fifteen days after its adoption. [Continued on Next Page] Following a duly noticed public hearing, the foregoing ordinance was introduced at the regular meeting of the City Council of the City of Saratoga held on September 18, 2019 and was adopted by the following vote on October 2, 2019: COUNCIL MEMBERS: AYES: NOES: ABSENT: ABSTAIN: SIGNED: E. Manny Cappello MAYOR, CITY OF SARATOGA, CALIFORNIA ATTEST: DATE: Debbie Bretschneider CITY CLERK APPROVED AS TO FORM: DATE: Richard Taylor CITY ATTORNEY Page 3 Exhibit A – An Ordinance Adopting Amendments to the City Code Related to Wireless Telecommunications Facilities The sections of the Saratoga City Code as set forth below are amended as follows: Text added to existing provisions is shown in bold double -underlined text (example) and text to be deleted in shown in strikethrough (example). Text in italics is explanatory and is not an amendment to the Code. 15-44.010 Purpose of Article. This Article establishes regulations pertaining to permitting requirements for wireless telecommunications facilities in all zones within the City. These regulations are designed to protect and promote public health, safety, community welfare and the aesthetic quality of the City as set forth within the goals, objectives and policies of the City's General Plan. 15-44.015 Definitions. (a) Wireless Telecommunications Facilities includes any cables, wires, lines, wave guides, antennas, nodes, microwave dishes and any other equipment or facilities associated with the transmission or reception of communications as authorized by the FCC which an entity seeks to locate or has installed upon a tower or antenna support structure. (ab) Antenna support structure includes a building or other structure other than a tower which can be used for location of Wireless Telecommunications Facilities “Antenna Support Structure” is any structure including a utility pole, mast, or tower, whether freestanding or mounted on another structure, that supports an antenna or an array of antennas used to transmit and/or receive electromagnetic communications signals. The height of an antenna support structure is measured to the highest point of any antenna mounted thereon, or to the antenna structure supporting the antenna, whichever is higher. (bc) Collocation. “Collocation” is the use of a Wireless Telecommunications Facility, or tower or location, by more than one wireless telecommunications provider which conforms to the following: (a) Mounting or installing an antenna facility on an existing antenna support structure; and/or (b) Modifying an antenna support structure for the purpose of mounting or installing an antenna facility on that antenna support structure. Page 4 9. Small Wireless Facilities. “Small wireless facilities” are facilities as defined in 47 C.F.R Section 1.6002(l) that meet all of the following conditions: (1) The facilities: (a) Are mounted on structures fifty feet or less in height including their antennas; or (b) Are mounted on structures no more than ten percent taller than other adjacent structures; or (c) Do not extend existing structures on which they are located to a height of more than fifty feet or by more than ten percent, whichever is greater; (2) Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume; (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than twenty-eight cubic feet in volume; (4) The facilities do not require antenna structure registration under 47 C.F.R. Part 17; (5) The facilities are not located on tribal lands; and (6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 C.F.R. section 1.1307(b). 10. Stealth. “Stealth” means a wireless telecommunication facility that is architecturally integrated into a building or other concealing structure, such that no portion of any antenna, antenna equipment, or any other apparatus associated with the function of the facility is visible. 11. Tower means a vertical framework of cross elements, which supports either an antenna, mast or both. (e) Wireless Communication Facility. “Wireless communication facility” is any device or system for the transmitting and/or receiving of electromagnetic signals, including but not limited to radio waves and microwaves, for cellular technology, personal wireless services, mobile services, paging systems and related technologies. Facilities include antennas, microwave dishes, parabolic antennas and all other types of equipment used in the transmission and reception of such signals; structure for the support of such facilities, associated buildings and cabinets to house support equipment and other accessory improvements. Unless the context indicates otherwise, a wireless communication facility shall include small wireless facilities. A television or radio antenna, when accessory to a principal or conditional use, shall not be considered a wireless communication facility. Page 5 15-44.020 Required Approvals (a) Small wireless facilities on existing utility poles. No A building permit and encroachment permit shall be issued administratively for a small wireless facility to be located on an existing wooden utility pole within the public right-of-way unlessif the small wireless facility conforms to all of the development standards prescribed in Section 15- 44.025. 15-44.020 Requirement for design review; public hearing. (ab) Wireless Telecommunications Facility. No building permit shall be issued for the construction of a Wireless Telecommunications Facility, with the exception of a small wireless facility subject to subsection (a) above that meets the requirements of Section 15-44.025, or the modification of an existing Wireless Telecommunications Facilit y, within any zoning district until such structure has received design review approval by the Planning Commission pursuant to this Article Section 15-44.030. The Community Development Department may specify application requirements to provide sufficient i nformation for decision makers to make the design review findings. (bc) A public hearing shall be required on the application for a Wireless Telecommunications Facility that requires design reviewunder this Article shall be required. Notice of the public hearing shall be given not less than ten days nor more than thirty days prior to the date of the hearing by mailing, postage paid, a notice of the time and place of the hearing to the applicant and to all persons whose names appear on the latest available assessment roll of the County as owning property within five hundred feet of the boundaries of the site. 15-44.025 Development Standards for locating Small Wireless Facilities subject to 44.020(a) without design review. (a) Located on an existing wooden utility pole within the public right-of-way of either a major or minor arterial street, or a collector street, as listed in the Circulation and Scenic Highway Element of the City’s General Plan. (b) The height of the utility pole and the antenna may not ex ceed a height of fifty feet. Utility pole height is measured from existing grade to the top of the antenna or top of highest pole attachment, whichever is greater. (c) Only one small wireless facility is permitted on each wooden utility pole. (d) Equipment, antennas, poles, cables, and hardware shall have a non-reflective finish and be painted or otherwise treated to match the color of the utility pole to which it is mounted. (e) The antenna shall be shrouded and centered at the top of the pole. The diameter of the shroud shall not exceed the diameter of the top of the pole. Antennas shall not be mounted on the side. Commented [AT&T1]: Limiting deployments to arterial streets will prohibit small cells throughout large portions of the City and is more burdensome than requirements imposed on other infrastructure deployments. Specifically, prohibiting small cells on collector streets will prohibit provision and improvement of wireless services in residential areas. And because there are existing utility poles that house utility infrastructure along collector streets, this restriction is preempted by the FCC’s aesthetic standard. Page 6 (f) Antennas shall extend no higher than 48”72” above the maximum separation from supply lines required by California Public Utilities Commission (CPUC) General Order 95, exclusive of the required mounting bracket. (g) All equipment is to be flush mounted and located entirely on the pole in a vertical arrangement. Flush mounted shall mean a maximum of 4 -inch offset between the pole and the equipment. Small cell facility related accessory equipment shall not collectively exceed 928 feet cubic feet in overall volume. The maximum width of the equipment is expected to be approximately the same width (diameter) as the support pole. No equipment shall be ground mounted. (h) Conduit/cables shall be flush mounted to the pole and covered. (i) Installations shall fully comply with the CPUC general orders (GOs), including, but not limited to, GO 95. 15-44.02530 Design review findings excluding Small Wireless Facilities that meet the requirements of Section 15-44.025. The Planning Commission shall not grant design review approval unless it is able to make the following findings. (a) That the Wireless Telecommunications Facility is or can be co-located with another Wireless Telecommunications Facility located on a structure or an existing utility pole/tower in the public right-of-way unless the applicant has demonstrated that such location is not technically or operationally feasible. (b) That the Wireless Telecommunications Facility and related structures incorporate architectural treatments and screening to substantially include: (1) Appropriate and innovative stealth design solutions; (2) Techniques to blend with the surrounding environment and predominant background; (3) Colors and materials that are non-reflective; (4) Exterior textures to match the existing support structure or building; and (5) Reasonably compatible height with the existing surrounding environment. (c) That landscaping and fencing provide visual screening of the Wireless Communication Facility's ground-mounted equipment, related structures, and that fencing material is compatible with the image and aesthetics of the surrounding area. 15-44.030035 Expiration of design review approval. Page 7 Design review approval granted pursuant to this Article shall expire thirty -six months from the date on which the approval became effective, unless prior to such expiration date a building permit is issued and construction commenced. If such building permit expires, and the Building Official does not renew the building permit within one hundred eighty days after expiration, the design review approval shall expire. 15-44.035040 Exemptions. The following telecommunications facilities are exempt from the design review requirements set forth in this Article: (a) Satellite dish antenna. (b) Licensed amateur radio station antenna. (c) Government-owned and operated telecommunications facilities. (d) Wireless communications facilities exempted from this Article by Federal or State law. (e) Small wireless facilities permitted pursuant to Section 15-44.020(a) that meet the requirements of Section 15-44.020025. 15-44.040045 Appeals to City Council. A decision or determination made by the Planning Commission under this Article may be appealed to the City Council in accordance with the procedure set forth in Article 15-90 of this Chapter. End of Amendments Commented [AT&T2]: The City must take final action inclusive of appeals, within the FCC shot clocks. The City’s existing appeal process will put nearly all applications at risk for violating the shot clocks, which is a presumptive prohibition in violation of the Telecommunications Act of 1996.