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Zoning regulations approved for small cell facilities

The San Diego Board of Supervisors approved zoning regulations for small cell wireless facilities which include a 300-foot setback from specific sites and no setback requirement from residences.

The supervisors' 5-0 vote Aug. 7 also approved ordinance components related to avoidance of cluttering, avoidance of certain areas, co-location with existing infrastructure, separation between poles, placement of equipment on poles, preferred locations for residential areas, undergrounding of equipment, and additional public noticing.

"It represents the best that can be done," said Supervisor Kristin Gaspar.

A Federal Communications Commission regulation on small wireless facilities which took effect Jan. 15 requires all jurisdictions to adopt compliant regulations and limits to what jurisdictions can charge companies for small facilities.

The county's Department of Planning and Development Services developed a definition of small wireless facilities to define them as facilities where each antenna is no more than three cubic feet in volume.

PDS also proposed a limit of 28 cubic feet for the wireless equipment and any pre-existing associated equipment on the structure and proposed a requirement for facilities to be mounted on new or existing structures in the public right-of-way with allowance for such facilities on private property if attached to an existing public utility pole or permitted telecommunication facility.

The fee portion of the proposed revisions will require all small cell wireless facility permit applicants to pay an issuance fee and place a deposit with PDS to cover inspection costs associated with the permit issuance, and the applicant will also pay an annual use, maintenance, and access fee for each facility.

The proposed regulations on the small cell facilities were part of a Jan. 25 county Planning Commission hearing on proposed amendments to the Zoning Ordinance, and a 6-0 vote with Michael Beck absent forwarded many of the recommendations to the Board of Supervisors.

The county supervisors heard the proposed changes Feb. 27, and for the small cell wireless facilities the Board of Supervisors approved the definition and a process for fees. The supervisors also directed PDS to evaluate additional changes to the Zoning Ordinance and return to the board within 180 days.

"The purpose of today's amendments that are before us is to implement the board's prior direction," said Supervisor Dianne Jacob.

The FCC regulation allows jurisdictions to develop regulations related to aesthetics, but the small cell facilities cannot be prohibited. Other jurisdictions filed a lawsuit against the FCC regulation, and the county has submitted a letter in support of that lawsuit.

The Federal Telecommunications Act of 1996 prohibits jurisdictions from regulating placement based on the environmental effects of radio frequency emissions (local governments can establish public safety standards for other matters not under Federal jurisdiction) and also prohibits discrimination among providers.

The new regulation requires the local jurisdiction to address applications within 60 days for facilities co-located on existing structures and within 90 days for new structures.

"The decision's already been made for us," Gaspar said.

"The bulk of the recommendations for consideration today are the best that we can do," Jacob said.

Local governments can still regulate based on community character and aesthetics issue provided that all carriers are allowed to provide coverage equally.

County staff recommended a 1,000-foot setback from schools, child care centers, hospitals, and religious facilities. The Planning Commission recommended 100 feet of separation and the Planning Commission recommendations were approved on a 5-1 vote July 19 with David Pallinger absent and Beck in opposition due to recommendation of 100 feet of separation rather than 1,000 feet.

The 100-foot separation would have applied to residential areas as well as schools, hospitals, and churches and would have applied only to facilities within the public right-of-way and not to facilities mounted on structures. "It would be our goal to achieve a 100 foot buffer when feasible," said Supervisor Jim Desmond.

The 300-foot setback approved by the Board of Supervisors also applies to Sheriff's Department stations and fire stations. Public requests for setbacks from shopping areas, parking lots, and county parks were rejected by the Board of Supervisors as well as by the Planning Commission and by PDS staff.

A macro cell facility may have a range of up to 20 miles while the range of a small cell facility is usually between 160 and 1,600 feet. A small cell facility consists of a wireless antenna and support equipment including radio equipment, an electrical meter, fiberoptic cable, and power lines.

The small cell facilities are for fifth-generation, also known as 5G, wireless communication, although they can also be used for fourth-generation (4G) communications. The generations are standards developed by academics and industry and are not based on numerical parameters.

"5G technology will make possible incredible advances like driverless vehicles and the Internet of Things," said Sprint network project manager Mary Hamilton.

"5G networks rely on the placement of small cells," Hamilton said. "They have to be closer in proximity than the macro cells are today."

The 5G systems will not replace the 4G wireless facilities. "We're going to use these cell sites to offload capacity from our existing networks," said AT&T director of external affairs John Osborne.

The 4G facilities will be needed for cell phone, wireless Internet, and other wireless communications within a structure due to the limitations of 5G facilities. "They don't penetrate houses very well," Osborne said of the 5G transmissions.

"5G demands an expanded infrastructure and therein lies the problem," Jacob said. "It means a lot more facilities on our light poles, our traffic lights, and much closer to our homes."

The measures to reduce clutter include configuration preferences to reduce the number of new poles. The highest preference is location on an existing facility followed by existing or replacement utility poles, existing or replacement structures or roof-mounted facilities in industrial or commercial zones, county-owned street light poles, county-owned traffic signals, and new utility poles. Although co-location is encouraged additional facilities will require an increase in the pole's height and would also add to the visual impact, so a pole would be limited to two facilities.

Osborne is supportive of the preference for existing poles. "We will try to do that whenever feasible," he said.

Jacob noted that San Diego Gas & Electric is replacing wood poles with steel poles and advocated that any new wireless communication facility poles should also be steel.

The separation requirement for new poles is 500 feet in preferred areas and 1,000 feet in non-preferred areas and does not apply to facilities placed on existing buildings or poles.

Public safety conditions the county can regulate include physical obstructions, equipment on poles must be at least seven feet above the ground in all areas and at least ten feet in areas which allow equestrian activities.

Any support cabinets must be clear of the path of travel and set back from public right-of-way. Although the antennas, radios, and electrical meters must be above ground to function all other equipment must be placed underground unless determined not to be technically feasible.

The most preferred locations include industrial zones, commercial zones other than those with C34 (General Commercial - Residential) and C35 (General Commercial - Limited Residential) zoning, and special purpose zones. The least preferred zones include rural, C34 and C35, and residential zones.

Although the process for a small cell wireless facility may be ministerial rather than discretionary, construction will impact nearby properties so PDS and the Planning Commission recommended noticing of all properties within 500 feet as well as to community planning and sponsor groups.

Noticing for most projects is provided to properties within 300 feet, and the additional distance is intended to ensure public awareness of upcoming construction.

The recommendations also include a requirement for annual reports to be submitted by July 1 with the provider's list and location of all active, non-operating, and permitted but not yet installed small cell sites and provision of a current certificate of insurance for all active small cell facilities.

If excavation in public right-of-way is required general liability insurance of at least $500,000 must be provided and the county must be protected from liability.

Rancho Santa Fe resident Holly Manion is a real estate broker. She noted that aesthetics related to wireless facilities impact property values. "There will be a taint to our local real estate industry," she said.

"You are going to make our homes unmarketable," said Rancho Santa Fe resident Susan Foster.

"We will lose real estate business if families cannot find what they consider to be safe homes," Manion said. "A house with a 5G tower directly in front of it will be unmarketable."

Manion added that a 5G facility in a residential area would be contrary to the community character. "We are about to lose what the community as a whole has worked hard to build up over time," she said. "We do not want to lose what we have defended for so long."

"There are plenty of us who are happy with the speeds we already have," said Bonita resident Nancy Lemke.

Although a local jurisdiction cannot regulate based on radio frequency emissions, other safety considerations may be taken into account. "You have the potential for an accident that can cause the loss of one's life," said Rancho Santa Fe resident Beth Nelson.

Radio frequency interference issues may be used to protect other local communications. "This is fire season. Interference to the RCS and other radio systems cannot be tolerated," said Fallbrook resident Bob Gonsett.

"It needs to function flawlessly," Gonsett said of the Regional Communications System. "It's a vital radio service to the county."

Gonsett is the president of Communications General Corporation which measures broadcast frequencies and interference. "While the proposed zoning language continues to discourage interference to the Regional Communications System from full-sized cell sites, no similar language is applied to small cells. This lack of protection is concerning and was discovered about a week ago in our office,” he said.

Gonsett then proposed language to be incorporated into the small cell zoning code: “No radio interference shall be caused to the Regional Communications System....”

"From a public safety standpoint we don't want any interference with our RCS system," Jacob said. (Curiously, the Supervisors ultimately declined to place any interference restrictions in the small cell portion of the zoning code. The RCS carries fire and sheriffs communications among other things. Gonsett was not offered an opportunity to comment on the industry position which was given next.)

"We're on the spectrum we're licensed to use," Osborne said. "We're not going to operate on the 800 megahertz frequency the county uses, so there would be no interference."

Osborne objected to the proposed 1,000-foot setback. "That creates an effective prohibition for us," he said.

The Board of Supervisors rejected suggestions for a wireless facility master plan, which was opposed by the wireless communications industry. "It goes beyond what is required for other infrastructure," said AT&T director of external affairs Christine Moore.

The supervisors, did, however, direct county staff to explore a master license compact which would enhance co-location efforts.

"Regulations may only apply to the extent that they are reasonable and technically feasible," Moore said.

Verizon Wireless municipal engagement partner Michael Farraher noted that the average household has approximately 13 wireless devices. "That number is steadily increasing," he said.

"The level of service will continue to degrade," Farraher said. "It is incumbent upon us to continually improve our ability."

Farraher noted that the speed increase for 5G facilities doesn't equate to a power increase. "These small cells in fact are considerably less powerful," he said.

Osborne noted that the 5G facilities operate on five watts of power.

"We look forward to bringing the latest wireless technology to where it's needed most," Moore said.

"People want this," Jacob said. "Lives have become more and more dependent on wireless technology."

Jacob was on the Board of Supervisors in 2003 when the county passed a wireless communications ordinance. "It was one of the most restrictive ordinances at the time," Jacob said. "It was a balance between industry needs while protecting the communities."

Jacob noted that the county was sued over the 2003 ordinance but prevailed in court. She expects the ordinance approved Aug. 7 to be legally defensible. "If we do end up in court I want to win," she said.

"I think staff has done as good as a job as they possibly can," said Supervisor Greg Cox.

"We're all not going home happy today," Gaspar said.

Author Bio

Joe Naiman, Writer

Joe Naiman has been writing for the Village News since 2001

 

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