Recommendations for a Protective Small Cell Ordinance

These recommendations for the Berkeley Cit Council SHOUL ALSO be for Montgomery County!

Recommendations for Berkeley Telecom Policy, Administrative Guidelines, and Ordinances

Cities known to have adopted each point are noted in parentheses. Ordinances are hyperlinked.

• 1. FCC CLAUSE: Include a clause voiding relevant sections of the ordinance, or requiring modification, in the event of a regulatory change or overturning of the FCC Order. (San Diego County, and see report by Next Century Cities)  
• Laws, permits, and re-certifications need to be CONDITIONAL, so that they may be revoked or modified if out of compliance or if/when federal law is modified. (Fairfax, Sonoma City)                    
• Also include a SEVERABILITY clause.

• 2. PERMITS  
• 2.a. Conditional Use Permits: Maintain that each wireless facility requires a Conditional Use Permit (Planning Dept, ZAB, or Public Works) followed by an encroachment permit which is reopened every 3 years (Sonoma City)
• 2.b. Significant Gap in coverage: Require that a significant gap in coverage be proven by applicant before approval of a wireless antenna and confirmed by an independent engineer.* (Calabasas, Old Palos Verdes)
• Least Intrusive Methods:  Require the least intrusive methods to fill any gaps for small cells and other wireless facilities.  A justification study which includes the rationale for selecting the proposed use; 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 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) An independent* engineer shall confirm, or not.
• 2.c. Radio-frequency Data Report: Require a thorough radio-frequency (RF) data report as part of the permit submittal for consultants. For all applications, require both an RF Compliance Report signed by a registered, independent professional engineer, and a supporting RF Data Request Form. (Calabasas, Palos Verdes, Suisin City, Sonoma City)  The independent* engineer will be hired by the City of Berkeley and billed to the applicant.
• 2.d. Mock-up, Construction Drawings, Site Survey, Photo Simulations: Require full-size mock-up of proposed Small Cell Facilities (SCF) and other pertinent information in order to adequately consider potential impacts. (Larkspur, Calabasas, Palos Verdes.  Also see Boulder, CO Report)
• Require Balloon Tests. (Town of Hempstead NY 2013)
• 2.e. Public notification: Telecom related Planning Commission, Public Works, and Zoning Adjustment Board hearings shall be publicized in the most widely read local newspapers and local online news sources* and on the City website no less than 30 days prior to the hearing or meeting.  No less than 30 days prior, a U.S. 1st class mail shall be sent to all addresses within 3,000 feet of the proposed facilities.  The outside of the envelope shall be printed with “Urgent Notice of Public Hearing.”  Due to the “shot clock”, City requires applicants to hold a publicly noticed meeting two weeks prior to submitting an application within the affected neighborhood.  Applicants mail all affected residents and businesses date, time, and location of hearings at least two weeks prior.  The applicant pays associated costs including mailings and meeting location rent.
• Community Meeting:  Applicant is required to [publicize in local newspapers and local online news sources* and] hold a community meeting at least two weeks prior to the hearing on the use permit. (San Anselmo, Palos Verdes)  Applicants shall mail all affected residents and businesses date, time, and location of hearings at least two weeks prior, 1st class etc. [as in 2.e].
• 2.f. Notification:  Notify property owners, residents, tenants, business owners, and workers within 3000 feet of a proposed wireless installation within one week of application submittal and again within one week of permit approval. 1st class etc. [as in 2.e].
• 2.g. Independent Expert* The City shall retain 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)  Paid by applicant (San Anselmo)  
• 2.h. Trees: No facility shall be permitted to be installed in the drip line of any tree in the right-of-way.  (Old Palos Verdes, 15’ in Los Altos)  (See Berkeley’s Heritage Tree ordinance.)
• 2.i. 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)
• 2.j. General Liability Insurance: 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 for each occurrence and four million dollars 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 30 days prior written notice to the city, except for cancellation due to nonpayment of premium…. (Old Palos Verdes, Fairfax, Newark.  San Anselmo has an indemnification clause.)
• 2.k. Attorneys’ Fees: The Permittee is required to pay any/all costs of legal action.  (Suisin City)
• 2.l. Speculative Equipment: Pre-approving wireless equipment or other alleged improvements that the applicant does not presently intend to install, but may wish to install at an undetermined future time, does not serve the public interest. The City shall not pre-approve telecom equipment or wireless facilities. (Fairfax, Old Palos Verdes, Sebastopol) 
• 2.m. Citizens may appeal decisions made. (San Anselmo)

• 3. ACCESS Americans with Disabilities Act (ADA): All facilities shall be in compliance with the ADA. (New Palos Verdes, Fairfax, Sebastopol, Mill Valley, Sonoma City, Suisin City) Electromagnetic Sensitivity (EMS) is a disabling characteristic, recognized by the Federal Access Board since 2002. The main treatment for this condition is avoidance of exposure to wireless radiation. Under the 1990 Americans with Disabilities Act, people who suffer from exposure to Electromagnetic Fields (EMF) are part of a protected disabled class under Title 42 U.S. Code § 12101 et seq. (Heed Berkeley’s pioneering disability rights laws and Berkeley’s Precautionary Principle ordinance NO. 6,911-N.S "to promote the health, safety, and general welfare of the community.")

• 4. SETBACKS:
• 4.a. Prohibited Zones for Small Cells: Prohibits small cell telecommunication facilities in residential zones and multi-family zoning districts (Calabasas, Mill Valley, Los Altos, Sonoma City) 
• 4.b. 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. (Calabasas, Sebastopol, Boulder Report)
• 4.c. Disfavored Location: Small cell installations are not permitted in close proximity to residences, particularly near sleeping and living areas. Viable and defendable setbacks will vary based on zoning. (ART ordinance)  1500 foot minimum setback from residences that are not in residential districts!
• 4.d. 1500 Foot Setback from other small cell installations:  Locate small cell installations no less than 1500 feet away from the Permittee’s or any Lessee’s nearest other small cell installation.  (Calabasas, Petaluma, Fairfax, Mill Valley,  Suisin City, Palos Verdes, Sebastopol San Ramon, Sonoma City,-Boulder Report)
• 4.e. 1500 Foot Minimum Setback from any educational facility, child/elder/healthcare facility, or park. (ART Ordinance)  The California Supreme Court ruled on April 4, 2019 that San Francisco may regulate based on "negative health consequences, or safety concerns that may come from telecommunication deployment.” (Sebastopol forbids potential threat to public health, migratory birds, or endangered species, also in combination with other facilities.  Refer to Berkeley’s Precautionary Principle Ordinance)
• 4.f. 500 Foot Minimum Setback from any business/workplace (Petaluma, Suisin City)

• 5. LOCATON PREFERENCE:
• 5.a. Order of preference: The order of preference for the location of small cell installations in the City, from most preferred to least preferred, is: (1) Industrial zone (2) Commercial zone (3) Mixed commercial and residential zone (4) Residential zone (ART Ordinance, New Palos Verdes) [Residential zone ban]
• 5.b. 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
• 5.c. Private Property: If a facility (such as a street light pole, street signal pole, utility pole, utility cabinet, vault, or cable conduit) will be located on or in the property of someone other than the owner of the facility, the applicant shall provide a duly executed and notarized authorization from the property owner(s) authorizing the placement of the facility on or in the property owner’s property. (Palos Verdes) [Many Berkeleyans do not want wireless antennas allowed on private property.  If a permit is considered for private property, not just the property owners but all those who spend time or own/rent property within 1500 feet must be notified immediately of how they may weigh in, and be informed of the decision immediately with possibility of appeal if a permit is granted.]
• 5.d. 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.

• 6. TESTING:
• 6.a. Random Testing for RF Compliance: The City shall employ a qualified, independent * RF engineer to conduct an annual random and unannounced test of the Permittee’s small cell and other wireless installations located within the City to certify their compliance with all Federal Communications Commission (FCC) RF emission limits. The reasonable cost of such tests shall be paid by the Permittee. (Fairfax, (ART, Old Berkeley.  Suisin City requires annual inspections and testing.)
• 6.b. RF/EMF Testing: Berkeley’s current law states that the City Manager “may” require independent testing of telecom equipment.  Change “may” to “shall” and delete the word “Manager” so that, if s/he does not find time to hire an independent expert, other City staff or a Council Committee may do so.  The law needs to require independent testing of all equipment, unannounced in advance, twice annually, with permittees required to reimburse the City for costs and to pay a deposit in advance.  Dates, addresses, and results of testing shall be posted on the City website and published in local media. **  [Montgomery County Maryland studied RF radiation levels from small cells and found that FCC exposure  levels were exceeded within 11 feet.]
• 6.c. Violation of Compliance Notification: In the event that such independent tests reveal that any small cell installation(s) owned or operated by Permittee or its Lessees, singularly or in the aggregate, is emitting RF radiation in excess of FCC exposure standards as they pertain to the general public, the City shall notify the Permittee and all residents living within 1500 feet of the installation(s) of the violation(s), and the Permittee shall have 48 hours to bring the installation(s) into compliance. Failure to bring the installation(s) into compliance shall result in the forfeiture of all or part of the Compliance Bond, and the City shall have the right to require the removal of such installation(s), as the City in its sole discretion may determine is in the public interest. (ART)
• 6.d. Non-acceptance of Applications: Where such annual recertification 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 wireless installations will be accepted by the City until such time as the annual re-certification has been submitted and all fees and fines paid. (ART)

• 7. RIGHT TO KNOW: The City shall inform the affected public via website, local news publications **, and US 1st class mail (with topic prominently announced in red on outside of envelope) of Master Licensing Agreement between the City and telecom, Design Standards for Small Cells or other wireless equipment, other telecom agreements, and notification within 2 business days of receiving permit applications, calendaring related hearings/meetings, and approving permits.  Notice shall include location and date of expected installations, description of appeals process, and dates of installations.  A map featuring all telecom equipment shall be on the City website and available to residents who request it at 2180 Milvia St.  Applicants/Permittees, who are profiting from using Berkeley’s public right of way, will reimburse City for the reasonable cost of mailings, Town Halls, and staff to handle telecom applications, public notification, inspections, recertifications, etc.

• 8. RECERTIFICATION: 
• 8.a. Annual Recertification: Each year, commencing on the first anniversary of the issuance of the permit, the Permittee shall submit to the City an affidavit which shall list all active small cell wireless installations it owns within the City 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 City 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)  Any installation that is out of compliance will be promptly removed; the permit for that installation will be terminated, with all associated expenses paid by the applicant.
• 8.b. Recertification Fees: Recertification fees will be calculated each year by the City.  They will be based on the anticipated costs of City for meeting the compliance requirements put in place by this ordinance. The total costs will be divided by the number of permits and assigned to the permit-holders as part of the re-certification process
• 8.c. Noise Restrictions (Sonoma City): Each wireless telecommunications facility shall be operated in such a manner so as not to cause any disruption to the community's peaceful enjoyment of the city.
• Non-polluting backup generators shall only be operated during periods of power outages, and shall not be tested on weekends, holidays, or between the hours of 5:00 p.m. and 9:00 a.m.
• At no time shall any facility be permitted to exceed 45 DBA and the noise levels specified in Municipal Code XXX.  (Los Altos)
• 8.d. Noise Complaints: If a nearby property owner registers a noise complaint, the City shall forward the same to the permittee. Said complaint shall be reviewed and evaluated by the applicant. The permittee shall have 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 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. The matter shall be reviewed by City staff. If sound proofing or other sound attenuation measures are required to bring the project into compliance with the Code, the City may impose conditions on the project to achieve said objective.  (Old Palos Verdes, Calabasas)  

• 9.a. AESTHETICS and UNDERGROUNDING:  At every site where transmitting antennas are to be placed, all ancillary equipment shall be placed in an underground vault beneath the street constructed by the Permittee. (Calabasas, Mill Valley, Petaluma) The vault shall include battery power sufficient to provide a minimum of 72 hours of electricity to the ancillary equipment. ***
• Permittee is responsible for placing on the pole two signs, with design approved by City, each in the opposite direction, to inform people walking on the sidewalk, what is installed on the pole.  Should a sign be damaged, Permittee shall replace it within 5 business days. (Town of Hempstead NY required a 4 foot warning sign on each pole.)
• 9.b. Aesthetic Requirements: According to the Baller Stokes & Lide law firm, some of the aesthetic considerations that local governments may consider include:
• Size of antennas, equipment boxes, and cabling;
• Painting of attachments to match mounting structures;
• Consistency with the character of historic neighborhoods;
• 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 Report)

* “Independent” means:  The RF engineering company has never provided services to a telecom corporation, and the company’s employee who tests exposure levels has also never provided services to a telecom corporation. 

** Right to Know - Publish on City website, in online local news: Berkeley Daily Planet, Berkeleyside, and local newspapers: Berkeley Voice, Berkeley Times (2019.  Update as needed)

*** Undergrounding - A single shielded multi-wire cable from the underground chamber shall be used to transmit radiation to the antennae for the purpose of transmitting data.  If the pole is of hollow metal, the cable shall be inside the pole; if the pole is solid wood, the cable can be attached to the pole.  Installation shall include its own analogue electricity meter and Permittee shall pay the electrical utility a monthly charge for the amount of electricity used.

      Except during construction, or essential maintenance, automobiles and trucks, of an allowed weight, shall be allowed to park at the site of the underground vault.  If maintenance is required within the underground vault the Permittees shall place a notice on the parked car or truck, to be moved within 24 hours.  If no vehicle is parked on top of the underground vault the Permitted shall place a No Parking sign for up to 24 hours.

Various cities' wireless facilities ordinances are hyperlinked in the electronic version of the Recommendations.  

Scroll down ~20 pages to find some of them: 

https://mdsafetech.org/cell-tower-and-city-ordinances/