As Federal Communications Commission regulations over the installation of small cell wireless facilities in communities continue to limit local control, the Danville Town Council has approved new policies to keep up with federal orders, and retain as much control over its streets as possible.
At their regular meeting on Tuesday evening, council members approved updates to the town’s wireless communication facilities ordinance, that more closely fall in line with FCC orders, while somewhat resenting being forced to do so.
“The urgency for this is real simple: We need to strengthen as many tools as we are legally allowed to put in our tool box to maintain local control ... We need to do this; this is the right thing. We have to be focused on the law and upholding the law, but we needed the strongest ordinance we can get and right now this is it,” Councilman Newell Arnerich said at the meeting. “This mechanism is the same one the city of San Ramon is using.”
“You always try to be as professional as you can, but also I'm sick of this, losing local control,” Mayor Robert Storer said prior to the council’s approval of the updates. “We are forced to make a decision that many probably would not make if we had our druthers. (But) we need this ordinance, we need the strength in this ordinance and we need the language in this ordinance to defend the town of Danville and its citizenry.”
New FCC orders released over the past year have continued to limit local municipalities' ability to regulate the installation of small cell wireless facilities on its vertical public infrastructure, such as light poles, town staff said at the meeting.
Perhaps the biggest change levied by the FCC is the shortened “shot clock” -- which greatly reduces the amount of time the town can review these projects, and was technically impossible to meet under the town’s previous wireless ordinance.
Now small cell proposals must be reviewed in 60 days for an existing pole, or 90 days for a new pole, compared to the 150 days previously allowed.
“You can not complete the 60-day shot clock in the amount of time required for the current process,” said Michael Johnston, Danville’s outside counsel from Telecom Law. “If you miss the deadline it is presumptively, that you are effectively prohibiting service... So if you do not have enforceable regulations ... the carrier has the right to go into court and get an injunction for that same permit without any local review.”
“This process imposes some level of enforceable local review on individual applications which can be reviewed by the chief of planning and will always be appealable to the city council.” Johnston told the council. “You guys will be the arbiter to these decisions if there is an appeal.”
According to a staff report by city attorney Robert Ewing and Danville’s principal planner David Crompton, the order mandates that aesthetic regulations can now only be imposed if they are “1) reasonable, 2) no more burdensome than applied to other infrastructure deployments and 3) objective and published in advance.”
Johnston added Tuesday that the FCC defines “reasonable” as “technically feasible.”
“(Aesthetic regulations) have to be no more burdensome than those applied to other infrastructure projects, this is a big one,” Johnston said. “I think it doesn't have clear boundaries right now. You have to treat wireless deployments the same way you treat electric utility providers deployments.”
Financially the order does allow municipalities to charge fees to help cover the cost of reviewing and approving cell sites. Agencies can charge a $100 processing fee per application and $270 annual fee sort of rental fee for the use of a town owned pole.
As a result of Tuesday’s decision, the town is also now able to adopt licensing agreements with wireless carriers, which would streamline the approval process for the installation of wireless facilities on town-owned infrastructure and allow the town to charge for the use of their poles.
The meeting was not as well-attended as previous Town Council meetings on the subject of cell towers, large or small -- less than 50 people were present -- but the topic was still passionately debated among those in attendance.
“I wanted to express that this new shot clock places a lot of pressure on you guys and all of us involved,” said Nick Vassallo, a vocal opponent of wireless facilities. “It makes me feel uneasy because I've said before these small cell sites are kind of like a Trojan horse. I think more and more towns are starting to recognize that and more and more towns are fighting back. And the FCC recognizes this so they are tightening their grip.”
The majority of residents speaking during the public comment session -- many of whom were members of the group Danville Citizens for Responsible Growth -- cited concerns over perceived health risks as their primary motivation for opposing the installation of cell facilities in residential areas. Many claiming that the radio frequency (RF) levels emitted from the facilities results in nearby residents having increased chances of developing cancer or Electromagnetic hypersensitivity.
“With respect to RF safety emissions, the FCC completely occupies this sphere,” Johnston responded.
Legally a municipality can not choose to deny a permit for a cell facility based on health concerns, town staff have stated. The FCC maintains that it is very unlikely that a person can be exposed to RF levels in excess of their guidelines.
After the council made its decision, they excused themselves to a closed session not open to the public to discuss its current litigation with Verizon Wireless, concerning the town’s decision to deny the carrier’s request for a facility on Camino Tassajara.