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HomeMy WebLinkAbout2021-12-14; City Council; ; Amendments to City Council Policy No. 64 to make it consistent with Federal Communications Commission regulations and to update the guidelines for small wireless facilitiMeeting Date: Dec. 14, 2021 To: Mayor and City Council From: Scott Chadwick, City Manager Staff Contact: Corey Funk, Associate Planner corey.funk@carlsbadca.gov, 760-434-4645 Subject: Amendments to City Council Policy No. 64 to make it consistent with Federal Communications Commission regulations and to update the guidelines for small wireless facilities District: All Recommended Action Adopt a resolution amending City Council Policy No. 64 - Wireless Communication Facilities to: •make it consistent with current Federal Communications Commission regulations •modify and supplement the design guidelines and processing procedures that apply to the installation of small wireless communication facilities Executive Summary City Council Policy No. 64 - Wireless Communication Facilities was adopted on Oct. 2, 2001 and last amended on Sept. 26, 2017. It was issued to guide the public, applicants, boards and commissions and staff in reviewing the placement, construction and modification of the wireless transmission facilities used for digital communication networks. Federal and state laws continue to significantly constrain the ability of municipal governments to oversee and regulate the installation of these devices. There have been recent changes in state and federal law and in cellular technology since the last update to City Council Policy No. 64, including updated guidance issued by the FCC in 2018. Staff have prepared proposed amendments to the City Council policy to align this policy with these regulations. The amendments also establish aesthetic guidelines to be used in evaluating permits for small wireless facilities, as allowed by law. City Council Policy No. 1 requires a council resolution that receives four affirmative votes for any amendments to City Council policies. Discussion Background Various federal and state laws restrict the ability of local governments like the City of Carlsbad to exercise discretion over wireless communication facilities. Some of these laws impose limits on a city’s processing timelines, or requirements for such permits. These timelines are known as “shot clocks.” Others impose limits that narrow or eliminate certain reasons to deny an application. For example, a local government cannot regulate the placement, construction, and modification of wireless faculties based on any potential environmental effects of radio Dec. 14, 2021 Item #16 Page 1 of 252 frequency emissions (Federal Communications Act of 1996). This is especially applicable as the industry transitions to 5G, the fifth generation of technology standards for cellular wireless communication. 5G technology is expected to primarily use small wireless facilities. Changes in federal regulations The city last updated City Council Policy No. 64 in 2017. Since then, there have been important changes in the law and in wireless carriers’ strategies for deploying digital communication infrastructure. Primarily, the FCC adopted new regulations in anticipation of large-scale installations of small wireless facilities in the public rights of way. (Code of Federal Regulations, Title 47 – Telecommunication, Section 1.6002(l)) The FCC released an order in 2018 that interpreted key provisions in the Telecommunications Act. This order defined the size of small wireless facilities, which are summarized as a facility: • That is mounted to a structure no more than 50 feet in height, or is 10% taller than an adjacent structure, or extends an existing structure above 50 feet or by more than 10 % (whichever is larger) • That uses an antenna that is no more than three cubic feet in volume • For which all associated equipment is no more than 28 cubic feet in volume The order also: • Restricted a local government’s ability to prohibit facilities within its jurisdiction • Limited the compensation local governments may receive from wireless providers for access to public rights of way and government-owned infrastructure • Significantly curtailed local aesthetic regulations over wireless facility placement and design • Required local governments to approve or deny permit applications within 60 days for installations proposed on existing structures and within 90 days for installations proposed on new structures For additional background on recent changes to federal and state law applicable to wireless communication facilities, and their relationship with anticipated technology changes including 5G antennas, please see the staff report and presentation from the City Council Wireless Workshop on June 23, 2021 (Exhibits 2 and 3). Changes in state regulations Several new state bills on wireless communication facilities have been introduced and one was recently adopted. On Sept. 29, 2020, Gov. Newsom signed Assembly Bill No. 2421, which mandates expedited local approval for standby power generators at wireless towers. The law, now in effect as California Government Code Section 65850.75, borrows from concepts in the FCC’s rules, but creates new processing requirements for local governments that only apply to Dec. 14, 2021 Item #16 Page 2 of 252 this narrow class of applications. Other bills have been proposed in the last several years, but have not been signed into law. Proposed amendments to City Council Policy No. 64 City Council Policy No. 64 includes guidelines for the review of these facilities that were adopted to strike a balance between complying with applicable laws while also closely protecting the authority reserved to the city. City Council Policy No. 64 includes several components: purpose and background, review restrictions placed on the city by law, and the city’s application procedures and guidelines. The proposed amendments (see Exhibit 3) include: • New category for small wireless facilities: Consistent with the FCC order, the revised policy establishes a new category of wireless communication facilities for small wireless facilities. A permit processing table and definitions are added to the policy to help differentiate the different types of wireless communication facilities. • Permit process: The FCC order allows small wireless facility to be installed in the public right of way of roads, as well as outside of the right of way on public or private property. The vast majority of small wireless facilities are expected to be installed in the city’s right of way. As proposed by the policy, applications for small wireless facilities will be processed by an administrative right of way permit issued in compliance with the federally mandated review times. No change is proposed for applications of traditional wireless communication facilities, which can also be referred to as “macro” facilities, and applications for these facilities will continue to be processed with conditional use permits, as required by the existing policy. The table below outlines the types of facilities and approval required in the draft City Council policy. Requirements for permits for the addition of generators and small facility changes, and for coastal development permits, which are required for sites in the city’s Coastal Zone, are included in Exhibit 3 (Table A). Facility type Location Permit Decision maker Wireless communication facilities Public or private property Conditional use permit1 Planning Commission Right of way Right-of-way permit, conditional use permit1 Planning Commission Small wireless facility Public or private property Minor conditional use permit2 City Planner Right of way Right-of-way permit Engineering Manager 1Some Wireless communication facilities qualify for a minor conditional use permit if they comply with preferred and stealth design criteria, and are approved by the City Planner. 2A zoning code amendment for various topics is planned for 2022. It is to include language that will allow for small wireless facilities on private and public property to be processed with a building permit. Dec. 14, 2021 Item #16 Page 3 of 252 • Public notices: Due to the very short permit review time frames imposed by the FCC, the policy amendment does not propose public notices for the installation of small wireless facilities. The city could include requirements for public notices, but, due to the federal regulations, there are only limited cases in which a local jurisdiction is able to consider and make modifications to permits. An option for additional noticing to be completed by an applicant is included in Exhibit 4. Staff supports the recommendation on having additional public noticing. • Locations: The 5G technology small wireless facilities typically provide coverage over smaller areas than macro sites (approximately a 500- to 1,000-foot radius) and therefore will likely require the installation of many such facilities throughout the city. Due to the very small coverage areas, the proposed revisions exempt small wireless facilities from the preferred location requirements contained in the current Policy No. 64 Section A. • Design guidelines: The draft Policy No. 64 includes updated design guidelines for small wireless facilities within and outside of the right of way as follows: Within the right of way Local jurisdictions can establish aesthetic regulations if they are reasonable and technically feasible for the carriers to comply with. The proposed policy establishes a number of requirements designed to minimize the adverse aesthetic impacts an approved facility might create: o Use of existing poles is encouraged. Small wireless facilities within the right of way will be located on existing or replacement streetlights, traffic signal poles, utility poles, or installed on new stand-alone poles. The policy establishes a preference that small wireless facilities be installed on existing poles first before new poles are installed. The draft policy includes the city’s stated preferences on the use of existing poles but the city cannot mandate them. However, applicants will be required to provide justification if they are proposing installation on a “least preferred” facility. o Stealth design is required. Antennas must be concealed by a shroud or other concealment device painted to match the pole. Any replacement pole should be substantially similar to the existing pole and comply with city standards and specifications for streetlight poles. Additionally, for accessory equipment:  Pole-mounted equipment must be installed in a cabinet or other concealment device painted to match the pole. The installation should be designed to minimize the overall visual profile, and no exposed wires are permitted.  Non-pole mounted equipment is encouraged to be installed underground; however, ground-mounted equipment may be permitted if properly screened or disguised. Base-mounted equipment is permitted if fully integrated into the overall design of the pole.  Any replacement pole should be substantially similar to the existing pole and comply with city standards and specifications for streetlight poles Dec. 14, 2021 Item #16 Page 4 of 252  The design guidelines include flexibility that takes into account that the city's authority to dictate certain physical sizes and equipment configurations on shared utility poles (e.g. wooden SDG&E poles) is limited by mandatory safety regulations set by the California Public Utilities Commission. o Height limitations. On existing poles, antennas would be limited to 5 feet above the support pole, unless additional height is necessary to comply with California Public Utilities Commission regulations on utility poles. New support poles may exceed the height for standard city light poles by 10% plus five feet for the antenna. A standard city light pole is between 24-26 feet tall, with some custom poles approximately 14 feet tall. o Size limitations.  Antennas – 3 cubic feet per antenna  Pole-mounted equipment – 9 cubic feet for rights of way adjacent to residential areas, and 17 cubic feet for rights of way adjacent to non- residential areas. The policy also establishes a maximum width of 24 inches for pole mounted equipment. Ground mounted equipment has the same size limitation as pole mounted equipment and must be screened or disguised. There is no volume limit to underground equipment, subject to approval by the Engineering Manager. o Decorative streetlights – For areas with decorative streetlights, the policy will not allow replacement poles for decorative streetlights unless the replacement pole is substantially similar in color, style and design to the existing decorative streetlights. In addition, for areas that have decorative streetlights, the policy requires a single consistent design theme to maintain the character established by existing streetlights. To fully prohibit replacement poles for decorative streetlights would mean that new standalone poles would be needed throughout these areas for carriers to achieve coverage. Instead, staff recommend allowing replacement poles that are substantially similar to the original decorative streetlight poles to reduce the potential for visual clutter that could result from adding more poles in an area. o Trees – Applicants shall be responsible for planting replacement trees for any trees that are damaged or displaced trees by the installation of any small wireless facility in accordance with Carlsbad Municipal Code Title 11 – Public property, and City Council Policy No. 4 – Street Trees. Outside of the right of way o Small wireless facilities will be subject to the same zoning standards as macro sites and must comply with height and setback limits in the zoning district for which they are located, unless they are installed on an existing facility that exceeds height limits, such as ball field lighting. o Small wireless facilities will be subject to the same design guidelines for macro sites that require stealth design and screened equipment. Dec. 14, 2021 Item #16 Page 5 of 252 o Small wireless facilities may be located on buildings or poles; however, if located on poles then they would be subject to the same design requirements as facilities located on poles within the right of way. • Radio frequency emissions compliance: Consistent with FCC rules, the policy draft requires an applicant to submit a radio frequency exposure compliance report that certifies that the proposed facility, both by itself and cumulatively with all other emitters in the vicinity, will comply with applicable federal exposure standards and exposure limits. The existing Policy No. 64 requirement for post-installation submittal of a radio frequency compliance report conflicts with FCC rules, so staff is proposing to replace it with a new one that instead requires compliance with laws, including those pertaining to radio frequency emissions, at all times on an ongoing basis. This requirement allows the permit decision-maker to ask for additional studies at any time they have good cause to believe that the facility is not in compliance with any laws applicable to human exposure to radio frequency emissions. • Application procedures: Specific application requirements for small wireless facilities are proposed. • Exceptions for conflicts with law: The permit decision-maker will be authorized to make exceptions in the case where compliance is not possible due to a conflict with federal or state law. Any exceptions only apply to the subject guideline that is in conflict with the law. Options Staff offer the following outlines options on City Council Policy No. 64 for the City Council’s consideration: Option 1: Adopt Policy No. 64 as recommended with no additional modifications Pros • Standardizes regulations and puts the city in compliance with the federal small cell wireless order • Provides protection for the community and city within the parameters of the FCC regulations Cons • Does not include additional requirements that go beyond what is allowed in the small cell wireless order Option 2: Don’t adopt proposed modifications to Policy No. 64 and send back to staff with additional direction to make it a more prohibitive policy, with exemptions required for compliance with FCC regulations. Pros • None identified Cons • Would maintain confusion for applicants and residents related to inconsistencies with the existing Policy No. 64 and the small cell wireless order Dec. 14, 2021 Item #16 Page 6 of 252 • City will still be limited in what regulations are allowed to be established without effectively prohibiting wireless service for any carrier or allowing for a waiver of requirements for technical infeasibility Option 3: Adopt modifications to Policy No. 64 with additional changes included. Options to modify policy requested by residents and include: • Allow for collocation on up to two poles in one location • Change the order of facility preference • Require additional radio frequency compliance reports • Addition of required buffer or restrictions in residential areas • Add a global exclusion from requirements due to technical infeasibility to serve an area Pros • Some additional requirements or aesthetic guidelines could be added to the policy, if there is an exception that would be in place if the regulations make it technically infeasible to serve an area within the city Cons • Additional requirements may have the appearance of limiting placement, but due to the requirements to not effectively prohibit wireless service, actual standards may be limited in applicability Additional information on potential modifications are included in Exhibit 4. Fiscal Analysis There is no fiscal impact with adoption of this policy amendment. The fees collected by jurisdictions are set by federal law and adoption of this policy will not affect that amount. Next Steps Staff will implement the revised policy. The City Attorney will monitor pending litigation on this issue and bring revisions of this council policy as necessary if and when these cases affect the rules related to small wireless facilities. Environmental Evaluation According to California Environmental Quality Act Guidelines Section 15061 (b)(3), staff find that this project will have no significant impact on the environment because: • The proposed policy resolution does not directly or indirectly authorize or approve any actual changes in the physical environment. • Most of the terms and scope of city discretion with respect to small wireless facilities are guided by existing state and federal law. • The proposed amendments establish administrative procedures to process requests for small wireless facilities and the city’s discretion with these applications is limited. • The proposed amendments set forth the design standards for those wireless facilities to protect the aesthetic interests and ensure a safe and accessible right of way. In addition, applications for any new small wireless facility or other infrastructure deployment, or a change to an existing small wireless facility or other infrastructure deployment, would be subject to additional environmental review on a case-by case basis. Any applicable small wireless facility installation would likely be exempt from CEQA in accordance with CEQA Dec. 14, 2021 Item #16 Page 7 of 252 Guidelines Section 15302 - Replacement or reconstruction, Section 15303 - New construction or conversion of small structures, and/or Section 15304 - Minor alterations to land. Accordingly, this policy resolution would be exempt from CEQA under the “general rule” exemption. Public Notification and Outreach Staff sent the draft revisions to Policy No. 64 to several wireless industry representatives that are, or intend to be locating facilities in the right of way, and comment letters were received from Verizon, Crown Castle, Sprint and AT&T. These comments are included in Exhibit 5, as well as staff’s responses to the comments. On June 23, 2021, the City Council held a public workshop on 5G and wireless communication facilities. At this workshop, Tripp May from Telecom Law Firm gave a presentation on the basics of 5G and wireless communications technology, the state/federal legal framework and limitations, City Council Policy No. 64, and recent/pending changes and challenges to state and federal law. The draft revisions to Policy No. 64 were available for a 30-day public review period from Oct. 22, 2021 to Nov. 22, 2021. The draft document was posted to the city website, and interested parties were notified of its availability. Comments received and staff’s responses are included in Exhibit 6. In addition, staff met with anyone who requested a meeting to discuss the proposed revisions to Policy No. 64. Public notice of this item was posted in keeping with the state's Ralph M. Brown Act and it was available for public viewing and review at least 72 hours before the scheduled meeting date. Exhibits 1. City Council resolution 2. City Council wireless workshop June 23, 2021, staff report 3. Draft amendments to City Council Policy No. 64, with revisions highlighted 4. Potential modifications to draft Policy No. 64 5. Wireless industry comments and responses 6. Public review comments and responses Dec. 14, 2021 Item #16 Page 8 of 252 RESOLUTION NO. 2021-289 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING CITY COUNCIL POLICY NO. 64 TO ACHIEVE CONSISTENCY WITH CURRENT FEDERAL COMMUNICATIONS COMMISSION REGULATIONS AND TO MODIFY AND SUPPLEMENT THE DESIGN STANDARDS AND PROCESSING PROCEDURES THAT APPLY TO THE INSTALLATION OF SMALL WIRELESS FACILITIES WHEREAS, On Sept. 27, 2018, the FCC released a Declaratory Ruling and Third Report and Order (FCC 18-133) which, among many other things, creates a new regulatory classification for small wireless facilities (ie. small cells), alters existing "shot clock" regulations to require local public agencies to do more in less time, establishes a national standard for an effective prohibition that replaces the existing "significant gap" test adopted by the United States Court of Appeals for the Ninth Circuit and provides that a failure to act within the applicable timeframe presumptively constitutes an effective prohibition; and WHEREAS, given the rapid and.substantial changes in applicable law, the federal prohibition on reasonable moratorium ordinances to allow local public agencies to study these changes and develop appropriate responses and the significant adverse consequences for noncompliance with these changes in applicable law, the City Council finds that aesthetic and operational regulations adopted through a resolution that supplements the City's existing guidelines, and that may be quickly amended, is a necessary and appropriate means to protect the public health, safety and welfare from the potential harm caused by unregulated small wireless facilities and other infrastructure deployments; and WHEREAS, City Council Policy No. 64 includes review guidelines for the installation of wireless communications facilities within the boundaries of the City of Carlsbad; and WHEREAS, the City Council of the City of Carlsbad, California has determined that amendments to City Council Policy No. 64 are desirable for consistency with current FCC regulations and to modify the standards for placement of small wireless facilities; and WHEREAS, the City Council policy, attached hereto as Exhibit "A" and incorporated herein by this reference, establishes reasonable, uniform and comprehensive standards and procedures for small wireless facilities and other infrastructure deployment, construction, installation, collocation, Dec. 14, 2021 Item #16 Page 9 of 252 {city of Carlsbad Council Policy Statement Category: WIRELESS COMMUNICATION FACILITIES Policy No. Date Issued: Effective Date: Resolution No. Cancellation Date: 64 9/26/2017 . 12/14/2021 2021-289 Supersedes No. 64 04/10/12 Specific Subject: Review and Operation Guidelines for Wireless Communication Facilities PURPOSE: Wireless communication facilities, or WCFs, refer to the many facilities with antennas and supporting equipment that receive and transmit signals and together enable mobile or other "wire-free" communication and information services. Unlike wireline communications, such as the land-based telephone system, wireless communication technologies, by their operational nature, require a network of antennas mounted at various heights and attached typically to buildings, structures and poles. A common name for a WCF is "cell site." WCF proposals to the city became commonplace in the mid-1990s. Since then, Carlsbad has processed dozens of new WCF applications and numerous permit renewals for existing. facilities, all without benefit of specific review criteria. As the city's population and the popularity and variety of wireless services grow, providers are expected to install more facilities to improve coverage and gain user capacity. The following Review and Operation Guidelines (Guidelines) have been developed to supplement and clarify the requirements of Carlsbad Municipal and Zoning codes, including chapter 21.42 of the Carlsbad Zoning Code. These requirements are meant to provide a general overview of the procedures and requirements for installation of WCFs, while accommodating and supporting deployment of WCFs to provide adequate coverage and capacity throughout the city. They also outline definitions that are quantifiable and measurable and detail development standards and design requirements which the city will use to review proposed facilities. This policy's purpose is to guide the public, applicants, boards and commissions, and staff in reviewing the placement, construction, and modification of WCFs. The goal is to assure WCFs in Carlsbad: • Are reviewed and provided within the parameters of law. • Protect the health, safety, and welfare of the public to the extent permitted by applicable laws. • Are encouraged to locate away from residential and other sensitive areas, except as allowed by Sections A, B and C of this policy. • Represent the fewest possible facilities necessary to complete a network without discriminating against providers of functionally equivalent services or prohibiting the provision of wireless services. • Use, as much as possible, "stealth" techniques so they are not seen or easily noticed. • Operate consistent with Carlsbad's quality of life. Page 1 of 18 Dec. 14, 2021 Item #16 Page 11 of 252 This policy applies to all commercial providers of wireless communication services. It does not apply to amateur (HAM) radio antennas, dish antennas, collocations and/or modifications covered under Federal Communications Commission (FCC) regulations at 47 C.F.R. §§ 1.6100 et seq. (implementing Section 6409(a) of the Spectrum Act (codified as 47 C.F.R. § 1455(a)) for non-substantial modifications to existing wireless towers and base stations)1 and other antennas installed on a residence for an individual’s private use. The Guidelines shall not relieve a person from the responsibility of complying with all other applicable regulations of any other local, state, or federal agencies. These Guidelines supplement existing regulations and provide clear standards and guidelines for all wireless infrastructure deployments unless specifically prohibited by applicable law. The standards and procedures contained in these Guidelines are intended to, and should be applied to, protect and promote public health, safety and welfare, and balance the benefits that flow from robust, advanced wireless services with the city’s local values. Except as expressly provided otherwise, these Guidelines shall be applicable to all applications and requests for authorization to construct, install, attach, operate, collocate, modify, reconstruct, replace, relocate or otherwise deploy WCFs, inclusive of applications which affect existing facilities. These Guidelines are also intended to establish clear procedures for application intake and completeness review. Conditional use permit applications for WCFs that were denied shall follow the process in Carlsbad Municipal Code Section 21.54.130 for reapplication of a new CUP. Building permit and ROW permit applications for facilities that were denied may be submitted to the Community Development Department as new applications at any time, without prejudice. Said new application will be processed as a completely separate application, with new submittal materials and fees required, and shall demonstrate compliance with these Guidelines. BACKGROUND: To secure the right to provide personal wireless services to a region, companies often must obtain airwave licenses that are auctioned by the FCC, the federal agency that regulates the communications industry. For radio services that use license spectrum, the FCC mandates the licensees establish their service networks as quickly as possible. In Carlsbad, there are three common types of WCF systems: Cellular, PCS (Personal Communications Services), and ESMR (Enhanced Specialized Mobile Radio). POLICY: REVIEW RESTRICTIONS: The Federal Telecommunications Act of 1996 (TCA) preserves the city’s ability to regulate the placement, construction, and modification of wireless communication facilities subject to the following restrictions. 1 If the city determines that an application submitted for approval pursuant to Section 6409(a) is, in fact, not covered by the applicable federal regulations, the applicant may resubmit the request for approval pursuant to the applicable provisions in this policy. Dec. 14, 2021 Item #16 Page 12 of 252 • The city may not favor any carrier. Regulations may not unreasonably discriminate among functionally equivalent service providers. A “functionally equivalent provider” means a competitor. • The city may not prevent completion of a network. Regulations may not prohibit or have the effect of prohibiting the provision of personal wireless services. According to the FCC’s recent order in 2018, the denial of a single permit application may cause an effective prohibition if it “materially inhibits or limits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, WT Docket No. 17-79, WC Docket No. 17-84, 33 FCC Rcd. 9088 at ¶ 37 (2018) (Small Cell Order). In addition, local aesthetic requirements may be prohibitory unless they are reasonable and published in advance. Small Cell Order at ¶ 40, rev’d in part, City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020). • Applications are to be processed in a reasonable time. A city must act on an application for WCFs within a “reasonable” amount of time, which the FCC generally defines as either 60, 90, or 150 days from the time an application is submitted and depending on the nature and scope of the proposed wireless facility. • Failure to approve or deny applications may result in automatic approvals and court orders. Under California Government Code 65964.1, an application for a wireless facility may be “deemed approved” if a city or county fails to act within the presumptively reasonable timeframes established by the FCC. This provision contains some exceptions but generally applies to new facilities and very large modifications to existing facilities both on private property and in the public rights-of-way. The FCC’s regulations contain a similar “deemed granted” remedy for less- than substantial collocations and modifications to existing facilities. In addition, the Small Cell Order establishes that a permitting agency’s failure to act within the referenced timeframes will amount to a presumptive prohibition on the provision of personal wireless services, the remedy for which may be a court injunction. • The city cannot deny an application because of perceived radio frequency health hazards. If federal standards are met, cities may not deny permits on the grounds that radio frequency emissions (RF) are harmful to the environment or to the health of residents. However, local governments may require wireless carriers to prove compliance with the standards. The FCC has established procedures to enforce compliance with its rules. • The city cannot deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station (Section 6409(a) non-substantial modifications). The FCC promulgated detailed regulations for this restriction, including a definition for “substantial change” and procedural rules for processing these applications, which can be found at 47 C.F.R. §§ 1.6100 et seq. • Certain collocation facilities are not subject to discretionary permit requirements. Under California Government Code section 65850.6, a collocation facility (where two or more wireless operators have located their antennas at a common location) shall be a permitted use not subject to discretionary permit requirements if it satisfies the requirements of that statute. • A decision to deny an application must be supported by substantial evidence. A decision to deny a WCF application must be in writing and supported by substantial evidence contained in a written record. The reasons for the denial must also be contained in a written record contemporaneously available with the written denial notice and must be clear enough to enable judicial review. Dec. 14, 2021 Item #16 Page 13 of 252 HEALTH CONCERNS & SAFEGUARDS: Possible health risks from exposure to the RF electromagnetic fields generated by WCFs are a significant community concern. Accordingly, the FCC requires facilities to comply with RF exposure guidelines published in the Code of Federal Regulations (see 47 CFR § 1.1307 and 47 CFR §1.1310). The limits of exposure established by the guidelines are designed to protect the public health with a very large margin of safety as they are approximately 50 times below the levels that generally are accepted as having the potential to cause a measurable change in human physiology. Both the Environmental Protection Agency and Food and Drug Administration have endorsed the FCC’s exposure limits, and courts have upheld the FCC rules requiring compliance with the limits. Most WCFs create maximum exposures that are only a small fraction of the limits. Furthermore, because the antennas in a PCS, cellular, or other wireless network operate more efficiently when in a line of sight arrangement to effectively transmit, their power is focused on the horizon instead of toward the sky or ground. Generally, unless a person is physically next to and at the same height as an antenna, it is not possible to be exposed to RF emissions that exceed the maximum permissible exposure. The FCC requires providers, upon license application, renewal, or modification, to demonstrate compliance with RF exposure guidelines. Where two or more wireless operators have located their antennas at a common location (called “collocation”), the total exposure from all antennas taken together must be within FCC guidelines. Many facilities are exempt from routine e compliance demonstrations under FCC guidelines, however, because their low power generation or height above ground level is highly unlikely to cause exposures that exceed the guidelines in areas accessible by people. PERMIT PROCESS: Wireless communication facilities (WCFs) are defined in Carlsbad Municipal Code Section 21.04.379. Carlsbad Municipal Code Section 21.42.140(B)(165) allows WCFs in all zones with the approval of a minor conditional use permit (MCUP) or a conditional use permit (CUP) and subject to this policy. New WCFs are allowed in the public right-of-way of roads (ROW) subject to the requirements of this policy and the processing requirements of Table A below. Small wireless facilities (SWFs) are WCFs that also meet the definition in FCC regulations at 47 C.F.R. §§ 1.6002(l). For WCFs and SWFs to be located in the public right-of-way of roads, which generally is not zoned, a right-of-way permit pursuant to Title 11 of the Carlsbad Municipal Code may be used as outlined in Table A – WCF and SWF Processing Requirements. Dec. 14, 2021 Item #16 Page 14 of 252 Table A – WCF and SWF Processing Requirements Category Code reference/ definition Application Review Process Coastal Zone and Coastal Development Permit (CDP) requirements Applicable Policy 64 Guidelines New WCFs on public or private property Carlsbad Municipal Code (CMC) Section 21.04.379 CUP or Minor CUP 1 CDP or Minor CDP required per CMC Chap. 21.201 unless specifically exempted A, B, D, and E New WCFs in the public right-of-way of roads CMC Section 21.04.379 ROW permit2, Minor CUP3 or CUP4 Exempt per CMC Section 21.201.B.115 A, B, D and E Existing WCF – Section 6409(a) eligible facilities request CMC Section 21.04.379 and 47 U.S.C. § 1455(a) Section 6409(a) worksheets Exempt per CMC Section 21.201.B.115 N/A – Policy 64 does not apply Existing WCF – Emergency Generators CMC Section 21.04.379 and Government Code Section 65850.75 Building Permit Exempt per CMC Section 21.201.B.115 N/A – Policy 64 does not apply Small Wireless Facilities (SWF) CMC Section 21.04.379 and the definition in FCC regulations at 47 C.F.R. § 1.6002(l) Within the public right- of-way of roads: Right-of- way Permit Exempt per CMC Section 21.201.B.115 C, D, and E Outside the public right- of-way of roads: MCUP Minor CDP required per CMC Chap. 21.201 unless specifically exempted5 B, C, D, and E Notes: 1. These guidelines apply in the review of CUPs or Minor CUPs for new WCFs. 2. A right of way permit shall be required instead of a CUP for a WCF that is (i) to be located on an existing or replacement pole, (ii) is consistent with the preferred locations in Location Guideline A.1 (or if in a discouraged location in Location Guideline A.2, has all equipment underground), and (iii) is consistent with Design Guidelines for WCFs in the Public Right- of-Way C 3. A minor CUP by Process 1 shall be required for a WCF that is (i) to be located on an existing or replacement pole, (ii) is in a discouraged location in Section A with above-ground equipment, and (iii) is consistent with Design Guidelines for WCFs in the Public Right-of-Way C 4. A CUP by Process 2 shall be required for all other WCFs not meeting the criteria for approval subject to a right of way permit or a minor CUP by process 1 5. When located within the city’s jurisdiction of the Coastal Zone. Dec. 14, 2021 Item #16 Page 15 of 252 REVIEW AND APPROVAL GUIDELINES A. Location Guidelines for Placement of WCFs (excluding SWFs) 1. Preferred Locations – WCFs are encouraged to locate on existing buildings and structures. In addition, WCFs should be located in the following zones and areas, which are listed in order of descending preference: a. Industrial zones. b. Commercial zones. c. Other non-residential zones, except open space. d. Public right-of-way of roads adjacent to industrial and commercial zones and identified on the map attached as Exhibit A. e. Public property (e.g., city facilities) not in residential areas. f. Major power transmission towers in non-residential zones or areas. g. Public and private utility installations (not publicly accessible) in residential and open space zones (e.g., water tanks, reservoirs, or the existing communication towers near Maerkle Reservoir). h. Parks and community facilities (e.g., places of worship, community centers) in residential zones or areas. i. Public right-of-way of roads adjacent to residential zones and identified on the map attached as Exhibit A. 2. Discouraged Locations – WCFs should not locate in any of the following zones or areas unless the applicant demonstrates that alternatives in more-preferred locations are not technically feasible or potentially available as required by Application and Review Guideline E.3. a. Open space zones and lots (except as noted in Location Guideline A.1.). b. Residential zones or areas (except as noted in Location Guideline A.1). c. Major power transmission towers in corridors located in/or next to a residential zone or area. d. Environmentally sensitive habitat. e. Public right-of-way of roads not identified on the map attached as Exhibit A. f. On vacant land. 3. Visibility to the Public – In all areas, WCFs should be located where least visible to the public and where least disruptive to the appearance of the host property. Furthermore, no WCF should be installed on an exposed ridgeline or in a location readily visible from a public place, recreation area, scenic area or residential area unless it is satisfactorily located and/or screened so it is hidden or disguised. 4. Collocation – Collocating with existing or other planned wireless communication facilities is recommended whenever feasible and appropriate. Service providers are also encouraged to collocate with water tanks, major power transmission and distribution towers, and other utility structures when in compliance with these guidelines. The city must approve collocation applications unless the expansion adds significantly to the height or width of a facility. Dec. 14, 2021 Item #16 Page 16 of 252 5. Monopoles – No new ground-mounted WCF monopoles should be permitted unless the applicant demonstrates no existing monopole, building, or structure can accommodate the applicant’s proposed antenna as required by Application and Review Guideline E.4. B. Design Guidelines for WCFs and SWFs Outside the Public Right-Of-Way of Roads 1. Stealth Design – All aspects of WCFs and SWFs, including the supports, antennas, screening methods, and equipment should exhibit “stealth” design techniques so they visually blend into the background or the surface on which they are mounted. Subject to city approval, developers should use false architectural elements (e.g., cupolas, bell towers, dormers, and chimneys), architectural treatments (e.g., colors, textures and materials), elements replicating natural features (e.g., trees and rocks), landscaping, and other creative means to hide or disguise the facilities. Stealth can also refer to facilities completely hidden by existing improvements, such as parapet walls. 2. Equipment – Equipment should be located within existing buildings to the extent feasible. If equipment must be located outside, it should be screened with walls and plants. If small outbuildings or extensions to existing structures are constructed specifically to house equipment, they should be designed and treated to match nearby architecture or the surrounding landscape. 3. Collocation – Whenever feasible and appropriate, design and placement should promote and enable collocation. 4. Height – facilities should adhere to the existing height limitations of the zone in which they are located. When installed on an existing structure, new facilities and collocations should not exceed the height of the existing/replacement structure on which they are being installed. 5. Setbacks – WCFs and SWFs, including all equipment and improvements, should adhere to the building setback requirements of the zone in which they are located, with the following clarifications: a. If on a site next to a residential zone, a setback should be maintained from the residential zone boundary a minimum distance equal to the above-ground height of the overall support structure’s height. b. If in a residential zone and in a public utility installation, park, or community facility, a setback should be maintained from the property boundaries of the utility installation, park, or community facility a minimum distance equal to the above-ground height of the overall support structure’s height. c. The decision-maker for WCFs may decrease or increase these setbacks if it finds such changes would improve the overall compatibility of the WCF based on the factors contained in Application and Review Guideline E.4. 6. Building or Structure-Mounted WCFs and SWFs – a. Antennas and their associated mountings should generally not project outward more than 24 inches from the face of the building. b. Roof-mounted antennas should be located as far away as possible from the outer edge of a building or structure and should not be placed on roof peaks. Dec. 14, 2021 Item #16 Page 17 of 252 c. If permitted, WCFs and SWFs on residential buildings should only be allowed if disguised as a typical residential feature (e.g., a chimney, a dormer) and if all equipment is located inside, not outside, the building. 7. Ground-mounted Monopole WCFs – a. All antennas should be mounted as close as possible to the monopole to improve facility appearance. b. The placement, screening, and disguise of the monopole should fit with the surrounding site design, architecture, and landscaping. Tree disguises, such as a “mono-palm,” may be acceptable depending on their quality and compatibility with landscaping nearby. c. Landscaping should be provided as necessary to screen, complement, or add realism to a monopole. Landscaping should include mature shrubs and trees. Some of the trees should be tall enough to screen at least three-quarters of the height of the monopole at the time of planting. Sometimes, landscaping may not be needed because of the monopole’s location or vegetation already nearby. d. When possible and in compliance with these guidelines, monopoles should be placed next to tall buildings, structures, or tall trees. 8. Pole mounted SWFs shall comply with the Design Guidelines in section C.2 of this policy as applicable, including height limits. 9. Lattice Towers – New lattice towers should not be permitted in the city. On existing lattice towers: a. All antennas should be mounted as close as possible to the tower so they are less noticeable, and should match the color of the tower. b. Wiring must be concealed in conduit that is flush-mounted to the tower. The conduit and mounting hardware shall match the color of the tower. c. Non-antenna equipment mounted on the tower should be placed behind the antennas to conceal them from view, and should be enclosed in a cabinet that matches the color and finish of the structures on which they are mounted. Ground mounted equipment shall comply with B.2 above. 10. Undergrounding – All utilities should be placed underground. 11. Regulatory Compliance – WCFs should comply with all FCC, FAA (Federal Aviation Administration), CPUC (California Public Utilities Commission) and local zoning and building code requirements. C. Design Guidelines for WCFs and SWFs in the Public Right-of-Way of Roads The general intent of these design and development standards is to preserve the character of the city’s neighborhoods and corridors by requiring WCFs and SWFs to utilize the least intrusive design available with regard to appearance, size, and location, and to blend into the existing streetscape as much as possible. They also seek to prevent conflict with existing and planned roadway, utility, and storm drain improvements. 1. Support pole installation preferences for the right-of-way of roads Dec. 14, 2021 Item #16 Page 18 of 252 a. The city prefers WCFs and SWFs to be installed on support poles in the public rights-of- way of roads, ordered from most preferred to least preferred, as follows: (1) Existing or replacement streetlight poles. (2) Existing or replacement wood utility poles. (3) Existing or replacement traffic signal poles. (4) New, non-replacement streetlight poles. (5) New, non-replacement poles (not wood). b. The city prohibits WCFs and SWFs facilities to be installed on the following support poles or structures: (1) Signs. (2) Any utility pole scheduled for removal or relocation within 12 months from the time the approval authority acts on the small wireless facility application. (3) New, non-replacement wood poles. (4) Pieces of public art, structures placed in the in the right-of-way through charitable donations, commemorative memorial structures or archways over roads and pedestrian walkways, or other similar structures as determined by the engineering manager. c. The engineering manager shall determine whether an application for a WCF or SWF utilizes the least intrusive design available or if there is a more preferred support pole type within 500 feet of the proposed location. For purposes of these guidelines, least intrusive design available means the most preferred design or development standard as provided in these Guidelines that is technically feasible. For individual antennas, shrouds/radomes, accessory equipment, mounting brackets/attachments and any other physical aspect of a facility, the city strongly prefers the smallest such item that is technically feasible. If the application does not propose the least intrusive design, or if there is a more preferred support pole within 500 feet, the application shall provide written evidence of the following: (1) A clearly defined technical service objective (2) A technical analysis that includes the factual reasons why the least intrusive design or a more preferred support pole type within 500 feet of the proposed location is not technically feasible. 2. Requirements applicable to all WCFs and SWFs in the public right-of-way of roads a. Overall height. WCFs and SWFs mounted to existing poles shall not exceed the height of a support pole by more than five feet measured from the top of the pole, except as necessary to comply with CPUC General Order 95 relating to utility poles. Replacement poles and new non-replacement poles shall not exceed the city height standards for streetlight poles or traffic signal poles, as applicable, by more than ten percent, plus five feet for the antenna. Replacement utility poles shall not exceed ten percent of the height of the existing utility pole, plus five feet for the antenna. b. Antenna stealth/concealment. The antenna(s) associated with the installation shall be stealth to the maximum extent feasible and concealed with a radome(s), shroud(s) or other cover(s) that also conceals the cable connections, antenna mount, and other hardware. The radome, shroud or other cover must be a flat, non-reflective color to match the underlying support structure. Dec. 14, 2021 Item #16 Page 19 of 252 c. Antenna size. (1) Each antenna shall not exceed 3 cubic feet in volume. (2) Top-mount antennas (including the shroud) shall be no more than 16 inches wide when placed on light poles, and shall not exceed the width of any wooden utility pole on which they are mounted. (3) Any top-mounted antennas which are wider than the light pole on which they are mounted shall be tapered to match the width of the pole at the point of attachment to the pole. d. Equipment location. Accessory equipment may be both pole mounted and non- pole mounted. Pole mounted limits are described in Section C.2.e , the balance located according to the following preference: (1) underground, (2) above ground and screened consistent with Section C.2.f. The city’s preferences is for non-pole mounted equipment to be placed underground to the extent possible, unless the applicant demonstrates that it is technically infeasible or there are conflicts with other utilities, obstructions or it is otherwise not feasible, as determined by the engineering manager. If undergrounding is not feasible, the city prefers the equipment to be pole-mounted. e. Pole mounted equipment. (1) Design and stealth/concealment. Accessory equipment must be stealth to the maximum extent feasible and/or concealed within a cabinet or shroud, and should be flush mounted and centered on the pole, except to the extent necessary to comply with CPUC General Order 95 for wood utility poles. The installation should be designed to minimize the overall visual profile, and installations that are partially or completely wrapped around the pole are encouraged. All equipment cabinets or shrouds shall be painted to match the color of the surface of the pole on which they are attached to reduce their visibility. Equipment may be installed behind street, traffic or other signs (between the pole and sign) to the extent that the installation complies with applicable regulations. All cables and conduits associated with the equipment shall be concealed from view within the same shroud or other cover and routed directly through the pole when feasible. Microwave or other wireless backhaul shall not have a separate and unconcealed antenna. (2) Size limits. All non-antenna equipment mounted to the pole is included in the equipment volume limit. Electric meters and disconnect switches that are mounted on the pole are not included in the equipment volume limit. All pole mounted non-antenna equipment, including cabinets, shall not exceed: (a). A width of 24 inches; and (b). Nine (9) cubic feet in volume if installed within or adjacent to a residential district or within 500 feet from any structure approved for a residential use; or (c). Seventeen (17) cubic feet in volume if installed within or adjacent to a non-residential district. f. Ground mounted equipment. If underground equipment is not feasible because there are conflicts with other utilities, obstructions or it is otherwise not technically feasible, as determined by the engineering manager per section (d) above, then all above ground equipment shall be: (1) placed in a ground-mounted Dec. 14, 2021 Item #16 Page 20 of 252 equipment shroud or cabinet that contains all equipment associated with the small wireless facility other than the antenna; and (2) set back at least 2.5 feet from the back of the curb and within the parkway or greenway or 2.5 feet back from the edge of the sidewalk when it is contiguous to the curb. All cables and conduits associated with the equipment shall be concealed from view, routed directly through the pole, and placed underground between the pole and the ground-mounted cabinet. All ground mounted equipment shall be stealth and/or screened completely, unless it is disguised to the satisfaction of the engineering manager. Volume limits for ground-mounted equipment shall be the same as applicable to pole-mounted equipment. The engineering manager may elect to waive volumetric limits for equipment that is installed or placed underground. g. All equipment associated with the WCF or SWF shall be located so as to avoid impacts to pedestrian access and vehicular site distance and safety. Pole mounted equipment should be mounted a minimum of eight feet above grade. h. To reduce clutter and deter vandalism, excess fiber optic or coaxial cables shall not be spooled, coiled, or otherwise stored on the pole unless concealed within a cabinet. i. If the proposed WCF or SWF would damage or displace any street trees or trees on public property, the applicant shall comply with CMC Chapter 11.12 and City Council Policy No. 4 and will be responsible for planting replacement trees to the satisfaction of the Parks & Recreation Director or designee. j. If an applicant proposes to replace a streetlight pole, the replacement pole should be substantially similar to the existing pole and comply with city standards and specifications for streetlight poles. 3. Supplemental requirements for WCFs and SWFs on New Poles for the right-of-way of roads a. All WCFs on new poles require a CUP by Process 2. b. Any new pole and/or equipment and other improvements associated with a new pole or an existing pole must be set back from intersections, alleys, and driveways and placed in locations where it will not obstruct motorists’ sight lines or pedestrian access. In general, there is a presumption of no obstruction where a new pole and/or equipment is set back at least: i. A minimum of 50-feet from the extension of the curb of the intersecting street at intersections. Distances of less than 50-feet may be allowed through approval of the engineering manager and the city traffic engineer; ii. Six feet from any driveway cut or alley entrance or exit; iii. Six feet from any permanent object or existing lawfully-permitted encroachment in the public right-of-way, including without limitation bicycle racks, traffic signs and signals, trees, open tree wells, benches or other street furniture, streetlights, door swings, gate swings, or sidewalk café enclosures. c. The city may, in its discretion, require an additional setback for a specific pole when the city determines that the presumptively acceptable setback would obstruct motorists’ sight lines or pedestrian access. d. The city may require the applicant to install a stealth pole, which may include without limitation functional streetlights and/or banners when technically feasible and the city determines that such additions would enhance the overall appearance and usefulness of the new pole. Dec. 14, 2021 Item #16 Page 21 of 252 e. The city will consider new pole designs proposed by an applicant if they meet the intent of this policy for stealth and attractive designs that adequately conceal equipment, as determined by the engineering manager. If a new pole without a streetlight is proposed, antennas and all equipment not installed underground must be concealed and integrated into the overall design of the pole, no exterior equipment boxes or shrouds attached to the pole will be permitted. 4. Areas with decorative streetlight poles. a. Replacement poles and new non-replacement poles installed within the following areas shall be substantially similar in color, style and design to the existing decorative streetlights, as determined by the engineering manager in consultation with the city planner. Poles in each area shall use a single consistent design theme to maintain the existing character established by existing streetlights: (1) Carlsbad Village (2) Villages of La Costa Master Plan (3) Bressi Ranch Master Plan (4) La Costa Master Plan (MP 149) (5) Various roads including El Camino Real and Aviara Parkway that utilize the mission bell streetlight design (6) Any other areas as determined by the city planner or engineering manager 5. Supplemental requirements for WCFs and SWFs on existing wood utility poles. a. All antennas must be installed within a radome, shroud or other cover mounted to the pole at the top, side, or on a stand-off bracket or extension arm that is attached to the pole. The city’s preference is for side-mounted antennas located in the communications space below the electric lines.2 b. All cables, wires and other connectors must be concealed within the antenna shroud, stand-off bracket/extension arm and conduit that is flush-mounted to the pole to the maximum extent feasible and of the smallest diameter and shortest length necessary to serve the facility. No loose, exposed, or dangling wiring or cables shall be allowed. c. All shrouds, conduit or other items stealth/concealing antennas, equipment and wires shall be painted to match the color of the pole. D. Performance Guidelines 1. Noise – All equipment, such as emergency generators and air conditioners, should be designed and operated consistent with the city noise standards. 2. Maintenance – All facilities, related equipment, and landscaping should be maintained in good condition and free from trash, debris, graffiti, and any form of vandalism. All required landscaping should be automatically irrigated. Damaged equipment and 2 Strand-mount antennas are also considered a preferred installation type. Dec. 14, 2021 Item #16 Page 22 of 252 damaged, dead, or decaying landscaping should be replaced promptly. Replacement of landscaping that provides facility screening should be, as much as possible, of similar size (including height), type, and screening capability at the time of planting as the plant(s) being replaced. 3. Maintenance Hours – Except in an emergency posing an immediate public health and safety threat, maintenance activities in or within 100 feet of a residential zone should only occur between 7 AM (8 AM on Saturdays) and sunset. Maintenance should not take place on Sundays or holidays. 4. Lighting – Security lighting should be kept to a minimum and should only be triggered by a motion detector where practical. 5. Compliance with laws and FCC RF Exposure Guidelines – The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law (“laws”) applicable to the permittee, the subject property, the WCR, SWF or other infrastructure deployment or any use or activities in connection with the use authorized by a required permit, which includes without limitation any laws applicable to human exposure to RF emissions and any standards, specifications or other requirements identified by the city planner or engineering manager (such as, without limitation, those requirements affixed to a required permit). If the city planner or engineering manager finds good cause to believe that the facility is not in compliance with any laws applicable to human exposure to RF emissions, the city planner or engineering manager may require the permittee to submit a written report certified by a qualified radio frequency engineer familiar with the facility that certifies that the facility is in compliance with all such laws. The city planner or engineering manager may order the facility to be powered down if, based on objective evidence, the city planner or engineering manager finds that the facility is in fact not in compliance with any laws applicable to human exposure to RF emissions until such time that the permittee demonstrates actual compliance with such laws. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee’s obligations to maintain compliance with all laws. No failure or omission by the City to timely notice, prompt or enforce compliance with any applicable provision in the Carlsbad Municipal Code, this Policy, any permit, any permit condition or any applicable law or regulation, shall be deemed to relieve, waive or lessen the permittee’s obligation to comply in all respects with all applicable provisions in the Carlsbad Municipal Code, this Policy, any permit, any permit condition or any applicable law or regulation. . 6. Abandonment of antennas and equipment- Any WCF or SWF that is not operated for a continuous period of 180 days will be considered abandoned. Within 90 days of receipt of notice from the city notifying the owner of such abandonment, the facility owner must remove the facility and restore the site, as much as is reasonable and practical, to its prior condition. If such facility is not removed within the 90 days, the facility will be considered a nuisance and in addition to any other available remedy, will be subject to abatement under Chapter 6.16 of the Carlsbad Municipal Code. If there are two or more users of a single WCF, then this provision will not become effective until all users stop using the Dec. 14, 2021 Item #16 Page 23 of 252 WCF. The provider or owner must give notice to the city of the intent to discontinue use of any facility before discontinuing the use. E. Application and Review Guidelines 1. Application requirements for WCFs. In addition to the typical submittal requirements for a CUP or Minor CUP (see Planning Division Form P-2), right-of-way permit or building permit (including plans, landscape details, and color and material samples, as appropriate), all WCF applications shall include the following items: a. A description of the site selection process undertaken for the WCF proposed. Technical service objectives and the reasons for selecting the proposed site and rejecting other sites should be provided. b. A description or map of the applicant’s existing and other proposed sites. c. A description of the wireless system proposed (e.g., cellular, PCS, etc.) and its consumer features (e.g., voice, video, and data transmissions). d. Verification that the proposed WCF will either comply with the FCC’s guidelines for human exposure to RF electromagnetic fields or will be categorically excluded from having to determine compliance with the guidelines per 47 CFR §1.1307(b)(1). If WCFs are proposed for collocation, the verification must show the total exposure from all facilities taken together meets the FCC guidelines. The applicant shall submit an RF exposure compliance report that certifies that the proposed facility, both individually and cumulatively as applicable under 47 C.F.R. § 1.1307(b)(5), will comply with applicable federal RF exposure standards and exposure limits. e. Color photo-simulation exhibits, prepared to scale, of the proposed WCF to show what the project would look like at its proposed location and from surrounding viewpoints. The city planner or engineering manager may waive the requirement to provide the exhibits if he/she determines they are unnecessary. f. Provide confirmation that an environmental assessment, or other application determination, has been completed by or on behalf of the FCC for any facility proposed in a location identified in 47 C.F.R. 1.307 (including a floodplain) or as otherwise required by National Environmental Policy Act or the National Historic Preservation Act. 2. Application requirements for SWFs. In addition to the typical submittal requirements for a right-of-way permit or building permit (including plans, landscape details, and color and material samples, as appropriate), all SWF applications shall include the following items: a. A description of the wireless system proposed (e.g., cellular, PCS, etc.) and its consumer features (e.g., voice, video, and data transmissions). b. For new poles that are least preferred, a description of the site selection process undertaken for the proposed SWF. A technical service objective and the reasons for selecting the proposed site and rejecting other sites should be provided. c. Verification that the proposed SWF will either comply with the FCC’s guidelines for human exposure to RF electromagnetic fields or will be categorically excluded from having to determine compliance with the guidelines per 47 CFR §1.1307(b)(1). The applicant shall submit an RF exposure compliance report that certifies that the proposed facility, both individually and cumulatively as Dec. 14, 2021 Item #16 Page 24 of 252 applicable under 47 C.F.R. § 1.1307(b)(5), will comply with applicable federal RF exposure standards and exposure limits. d. Color photo-simulation exhibits, prepared to scale, of the proposed WCF to show what the project would look like at its proposed location and from surrounding viewpoints. The city planner or engineering manager may waive the requirement to provide the exhibits if he/she determines they are unnecessary. e. Environmental impact assessment form to determine whether the proposed project is categorically exempt under Article 19 of the CEQA Guidelines, or whether the proposed project will require a Negative Declaration, Mitigated Negative Declaration or an Environmental Impact Report. In addition, provide confirmation that an environmental assessment, or other application determination, has been completed by or on behalf of the FCC for any facility proposed in a location identified in 47 C.F.R. 1.307 (including a floodplain) or as otherwise required by National Environmental Policy Act or the National Historic Preservation Act. 3. For WCFs proposed in a zone or area that is a discouraged WCF location as listed in Location Guideline A.2., the applicant shall provide evidence that no location in a preferred zone or area as listed in Location Guideline A.1. is technically feasible or potentially available to accommodate the applicant’s proposed facility. Evidence should document that preferred zone or area locations do not meet engineering, coverage, location, or height requirements, or have other unsuitable limitations. 4. For proposed new ground-mounted monopole WCFs, the applicant shall also provide evidence to the city’s satisfaction that no existing monopole, building, structure, or WCF site (“existing facility”) could accommodate the proposal. Evidence should demonstrate any of the following: a. No existing facility is located within the geographic area or provides the height or structural strength needed to meet the applicant’s engineering requirements. b. The applicant’s proposed WCF would cause electromagnetic interference with the existing antennae array or vice versa. c. The fees, costs, or contractual provisions required by the owner to locate on an existing facility or to modify the same to enable location are unreasonable. Costs exceeding new monopole development are presumed to be unreasonable. d. The applicant demonstrates to the decision-maker’s (Planning Commission or city planner) satisfaction that there are other limiting factors that render an existing facility unsuitable. 5. In approving a WCF or SWF, the decision-maker (Planning Commission, city planner or engineering manager) shall make the findings in Carlsbad Municipal Code Section 21.42.020 if applicable, and shall give consideration to the following factors: a. Compliance with these guidelines. b. Height and setbacks. c. Proximity to residential uses. d. The nature of uses on adjacent and nearby properties. e. Surrounding topography and landscaping. f. Quality and compatibility of design and screening. g. Impacts on public views and the visual quality of the surrounding area. Dec. 14, 2021 Item #16 Page 25 of 252 h. Availability of other facilities and buildings for collocation. 6. Conditional Use Permits (CUPs)/Minor CUPs for WCFs shall be granted for a period not to exceed ten years unless public safety reasons and/or substantial land use reasons justify a shorter term. A WCF that is decommissioned, discontinued, or otherwise abandoned by the owner or operator for a continuous one-year period is subject to revocation under Section 21.42.120 of the Carlsbad Municipal Code. Upon a request for either an extension or an amendment of a CUP or Minor CUP, the WCF will be reevaluated to assess the impact of the facility on adjacent properties, the record of maintenance and performance with reference to the conditions of approval, and consistency with these guidelines. Additionally, the city will review the appropriateness of the existing facility’s design, and that the applicant documented that the WCF maintains the design that is the smallest, most efficient, and least visible and that there are not now more appropriate and available locations for the facility, such as the opportunity to collocate or relocate to an existing building. 7. Collocation for WCFs. Pursuant to California Government Code Section 65850.6, qualifying collocation facilities for WCFs shall not be approved with a conditional use permit or conditional use permit amendment. This section does not apply to SWFs. a. For the purposes of collocation, the following definitions apply: (1) “Collocation facility” means the placement or installation of WCFs, including antennas, and related equipment, on or immediately adjacent to, a wireless telecommunications collocation facility. (2) “Wireless telecommunications facility” means equipment and network emergency power systems that are integral to providing wireless telecommunications services. (3) “Wireless telecommunications collocation facility” or “WTCF” means a wireless telecommunications facility that includes Collocation facilities. b. A building permit shall be required for a proposed WCF Collocation facility which will be placed on a previously approved WTCF provided that: (1) The new WCF Collocation facility is consistent with requirements for the existing WTCF installation; and (2) The modification of an existing wireless tower or base station does not physically change the dimensions of such tower or base station. c. Approval of an application to construct or reconstruct a WCF wireless facility shall not require an escrow deposit for removal of the WCF Collocation facility or any component thereof. d. Notwithstanding subsection (b) above, the city may require a performance bond or other surety or another form of security if the amount required is rationally related to the cost of removal. 8. Applications from a single provider of wireless communication services for up to 10 SWF permits may be batched and processed together. A single provider may not submit more than one batch of applications at one time. Batched applications will only be accepted prior to 4:00pm Monday through Thursday. Dec. 14, 2021 Item #16 Page 26 of 252 9. Applications must be submitted in-person and with an appointment. Application materials delivered by U.S. mail or other delivery service will not be processed and do not constitute a submitted and duly filed application. An application is not considered duly filed and submitted unless it is provided in-person to a representative of the Community Development Department and assigned a case number or permit number as appropriate. 10. SWFs that propose to use an existing pole, replacement pole or other existing structure shall be required to provide authorization from the pole or structure owner. Authorization may include signatures, letters, agreements or other similar methods acceptable to the city planner or engineering manager. Authorization from the owner in connection with joint utility poles may be evidenced by documentation that shows that authorization has been granted in accordance with the joint pole committee’s rules, which may include authorization deemed granted by lapse of time. 11. Exceptions to this policy. The city may grant an exception to the requirements of this policy but only to the extent necessary to avoid conflict with applicable federal or state law. When the applicant requests an exception, the approval authority shall consider the findings in subsection (a) of this section. Each exception is specific to the facts and circumstances in connection with each application. An exception granted in one instance shall not be deemed to create a presumption or expectation that an exception will be granted in any other instance. a. The decision maker may grant an exception to any provision or requirement in this policy only if the decision maker finds that: (1) A denial based on the application’s noncompliance with a specific provision or requirement would violate federal law, state law or both; or (2) A provision in this policy, as applied to the applicant, would violate any rights or privileges conferred on the applicant by federal or state law. b. If the decision maker finds that an exception should be granted, the exception shall be narrowly tailored so that the exception deviates from this policy to least extent necessary for compliance with federal or state law. c. The applicant shall have the burden to prove to the decision maker that an exception should be granted pursuant to this section. The standard of evidence shall be the same as required by applicable federal or state law for the issue raised in the applicant’s request for an exception. 12. Pre-Application Meetings. Federal laws and policies establish time limitations (referred to as a “shot clock”) related to processing of all types of WCFs and SWFs permits. The city is required to act on a WCF or SWF permit within the established shot clock timeframes. Pre-application meetings are strongly encouraged in order to ensure that proposed facilities comply with the requirements of these Guidelines and that application materials include adequate and accurate information. A pre-application meeting is voluntary and is intended to streamline the review process through informal discussion between the potential applicant and staff that includes, without limitation, the appropriate project classification and review process; any latent issues in connection with the proposed project, including compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other city Dec. 14, 2021 Item #16 Page 27 of 252 departments responsible for application review; and any foreseen application completeness issues. 13. Pre-approved designs. To expedite the review process, encourage collaborative designs among applicants and the city, and ensure cohesive and high-quality designs for new or replacement poles in areas such as those with decorative streetlights, the engineering manager in consultation with the city planner, may designate one or more pre-approved designs for small wireless facilities and other infrastructure deployments. a. Any applicant may propose a design for consideration as a pre-approved design. The city may, in its discretion, establish a pre-approved design when the proposed pre-approved design exceeds the design guidelines in this policy. b. The city may modify or repeal any pre-approved design by written notice to any applicants who have used the pre-approved design, and by posting the notice at the Land Use Engineering counter. The modification or repeal shall be effective immediately. c. Any applicant may propose to use any pre-approved design whether the applicant initially requested that the city adopt such pre-approved design or not. The city’s decision to adopt a preapproved design expresses no preference or requirement that applicants use the specific vendor or manufacturer that fabricated the design depicted in the pre-approved plans. Any other vendor or manufacturer that fabricates a facility to the standards and specifications in the pre-approved design with like materials, finishes and overall quality shall be acceptable as a pre-approved design. 14. A master license agreement or other authorization is required prior to permit submittals for WCF or SWF installations that will locate on city-owned property or facilities. 15. At the time of filing the application, the applicant shall pay all applicable fees contained in the most recent fee schedule adopted by the city council. 16. An applicant may voluntarily elect to defer submittal of any permit or agreement which is otherwise required as part of a whole application. The voluntary deferral of any such permit or agreement shall toll the shot clock on that item. Once the voluntarily deferred item is received, the city will provide comments on any deferred submittal in the same manner as if it was a new application. The city will continue to process all other permits and agreements that are not deferred. SEVERABILITY: If any sections, subsections, sentence, clause, or phrase of the policy is for any reason held to be invalid or unconstitutional by the decision or legislation of any court of competent jurisdiction, or by reason of preemptive legislation, such decision or legislation shall not affect the validity of the remaining portions of the policy. The City Council declares that it would have approved this policy, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that one or more of the sections, subsections, sentences, clauses, or phrases thereof is declared invalid or unconstitutional. These Guidelines have been adopted, and may be amended, by resolution of the City Council. Revisions to address clerical errors may be made administratively by the Director of Community Development. Dec. 14, 2021 Item #16 Page 28 of 252 Exhibit 2 CITY COUNCIL Staff Report Meeting Date: To: From: Staff Contact: June 23, 2021 Mayor and City Council Scott Chadwick, City Manager Jason Haber, Intergovernmental Affairs Director Jason.haber@carlsbadca.gov, 760-434-2820 CA Review CKM Subject: Districts: SG Cellular Technology and Wireless Communication Facilities Workshop AU Recommended Action Hold a public workshop to receive a presentation on SG cellular technolo_gy and wireless communication facilities from Telecom Law Firm, the city's outside legal counsel for wireless infrastructure matters, and related public comment. Executive Summary City Council Policy No. 64, adopted on April 10, 2012 and amended on September 26, 2017, was issued to guide the public, applicants, boards and commissions, and staff in reviewing the placement, construction and modification of wireless communication facilities. However federal law significantly constrains the ability of municipal governments like the City of Carlsbad to oversee and regulate the installation of these facilities, as detailed below. Considering recent and pending changes in state and federal law and in cellular technology since the last update to City Council Policy No. 64, including the anticipated deployment of SG cellular technology, staff are providing this workshop with a presentation from Telecom Law Firm, the city's outside legal counsel for wireless infrastructure matters, and to receive any related public comment. No direction from the City Council is needed at this time, since further changes in the law and existing legal challenges are pending. However, staff anticipates presenting proposed updates to City Council Policy No. 64 in late 2021 for public input and City Council considerat ion. Discussion SG cellular technology deployment SG stands for the fifth generation of technology standards for cellular wireless communication. It has the potential to deliver data much faster and provide greater capacity than previous technologies by using a broader range of frequencies than 4G technology. SG networks will deploy more mid-and high-band frequencies, which experience comparatively higher signal loss over distance and from the obstructions of structures and topography. Because of these qualities, wireless providers are deploying more of what are known as "small cells" on streetlights, traffic signals and utility poles. These are closer together and cover a smaller area than the devices that were used to build-out 4G networks. Small cells are June 23, 2021 Item #1 Page 1 of 38 Dec. 14, 2021 Item #16 Page 30 of 252 commonly associated with SG wireless service but are not limited to that use. There are already about 175 small cells approved or deployed within the public right of way in Carlsbad and several more located on private property. All of the existing small eel Is in Carlsbad have been primarily installed to support 4G technologies. The city has not received any applications to permit the installation of the millimeter-wave band antennas used for SG wireless communications. Staff expect an increase in applications to install such wireless communication facilities based on industry estimates. Under the federal Telecommunications Act of 1996, which was intended to foster the modernization of America's telecommunications infrastructure, cities may not: • Deny an application to install a wireless communication device because of perceived radio frequency health hazards • Prevent completion of a wireless network • Favor one wireless ·carrier over another • Deny an application without documentation of substantial evidence The Federal Communications Commission requires all wireless communication devices to comp.ly with federal guidelines that limit human exposure to radio frequencies. These exposure guidelines have been endorsed by the Environmental Protection Agency and the Food and Drug Administration. Most wireless communication transmitting devices create maximum exposures that are only a small fraction of the limits set forth in the guidelines. The FCC addresses public health concerns over wireless devices in its "Consumer Guide on Wireless Devices and Health Concerns" (Exhibit 1). The Carlsbad City Council has a policy that governs the installation of all wireless communication facilities, whether large or small. This policy was adopted before recent changes in the law and technology. In addition to the limits the federal government had placed on what Carlsbad and other local governments can do to regulate communications equipment used for the previous generations of wireless networks, the FCC recently adopted new rules that constrain staff's ability to apply the current city policy to small cell applications. City Council Policy No. 64 The city regulates most land uses directly through the Carlsbad Municipal Code but takes a hybrid approach with respect to wireless communication facilities. Unlike many other land uses, . these facilities are subject to an ever-changing landscape of federal and state laws that affect local zoning and permitting authority. Because of this environment, the city regulates wireless communication facilities through a separate policy document, City Council Policy No. 64 (Exhibit 2). This policy was authorized pursuant to Carlsbad Municipal Code Section 21.42.140(B)(165), which states: 165. Wireless Communication Facilities (WCFs): a. Shall comply with city council policy statement No. 64. An application for a WCF may be processed as a minor conditional use permit, pursuant to this chapter, if it is found to be consistent with the preferred location and the stealth design review and approval guidelines of city council policy statement No. 64. June 23, 2021 Item #1 Page 2 of 38 Dec. 14, 2021 Item #16 Page 31 of 252 b. WCF conditional use permit applications that do not comply with the preferred location and the stealth design review and approval guidelines of city council polky statement No. 64 shall be processed as a conditional use permit by process 2. City Council Policy No. 64 provides several important benefits. Rather than amend the municipal code each time a change in law occurs, the city's approach has structural flexibility, which allows the city to react quickly and protect local interests. When local law is inconsistent with federal or state law, the local provisions are preempted and leave the city exposed without valid rules to enforce. Unlike a city ordinance, which generally requires at least two meetings and votes -one for introduction and one for adoption-and a 30-day waiting period before it becomes effective, City Council Policy No. 64 can-be amended by a City Council resolution, which requires only a single meeting and vote and is effective immediately.1 Additionally, local regulations for wireless communication facilities tend to require a level of detail better suited to a City Council policy. The comprehensive design, location, operation and procedural standards set forth in City Council Policy No. 64 are targeted specifically at wireless uses, which ensures the city follows the federal rules while giving the city the legal framework it needs for its limited oversight of this Wireless infrastructure. City Council Policy No. 64 includes several components: purpose and background, review restri.ctions placed on the city by law, and the city's application procedures and guidelines. The policy's central purpose is to balance the city's desire to support access to high quality wireless services with the preservation of community aesthetics and public safety consistent with the law. Various federal and state laws restrict the city's ability to exercise its discretion over wireless communication facilities: The Telecommunications Act of 1996, detailed above, Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012, FCC regulations that implement these laws, the California Public Utilities Code and the California Government Code. Some of these laws impose procedural limits on the city's processing timelines or requirements for issuing decisions. These timelines are known as shot clocks. Others impose substantive limits that narrow or eliminate certain reasons to deny an application, such as the prohibition on considering the impacts of radio frequency emissions when regulating the placement of wireless communication facilities. In either case, the review guidelines in City Council Policy No. 64 were adopted to strike a balance between achieving compliance with applicable laws while also closely protecting the authority reserved to the city. Changes in federal regulations The city last updated City Council Policy No. 64 in 2017. Since then, there have been important changes in the law and in wireless carriers' strategies for deploying digital communication infrastructure. Primarily, the FCC adopted new regulations in anticipation of large-scale deployments of "small wireless facilities" (i.e., small cells) in the public right of ways. On September 27, 2018, the FCC released a Declaratory Ruling and Third Report and Order (FCC 18- 133) which interpreted key provisions in the Telecommunications Act. This order defined the 1 To introduce and adopt a non-urgency ordinance requires three affirmative votes of the City Council. To adopt or revise a City Council policy requires four affirmative. votes of the City Council. June 23, 2021 Item #1 Page 3 of 38 Dec. 14, 2021 Item #16 Page 32 of 252 size of small wireless facilities and restricted a local government's ability to prohibit facilities within its jurisdiction. The order also: 1. Limited the compensation local governments may receive from wireless providers for · access to public rights-of-way and government-owned infrastructure 2. Significantly curtailed local aesthetic regulations over wireless facility placement and design 3. Required local governments to approve or deny permit applications within 60 days for installations proposed on existing structures and within 90 days for inst allations proposed on new structures Local governments across the country filed challenges to the FCC's 2018 order. On Aug. 12, 2020, the U.S. Ninth Circuit Court of Appeals reversed several of the FCC's limitations on local aesthetic regulations but upheld the compensation and timeline limitations. local governments subsequently filed a petition before the U.S. Supreme Court to review the Ninth Circuit's decision as it pertains to the compensation issue. The Supreme Court has not yet decided whether to grant the petition and take the case. In addition to establishing those restrictions on small wireless facilitiesJ the FCC recently amended rules related to Section 6409 modifications to existing wireless communication facilities. Under the Section 6409 rules, federal law mandates that local governments approve modifications that will not cause a s.ubstantial change. The FCC adopted a declaratory ruling on June 9, 2020 (FCC 20-75) and a report and order on Oct. 27, 2020, (FCC20-153) that had the effect of expanding the categories of applications qualified for mandatory approval. These new rules are currently in effect, but are facing legal challenges. A coalition of local governments that includes the City of Carlsbad filed a petition asking the Ninth Circuit to review the declaratory ruling (Case No. 20-71765). A briefing on the merits of that petition is expected to be complete by the winter of 2021, with a decision likely by 2023. A separate coalition filed a petition asking the FCC to reconsider the report and order. There is no timetable for a decision on that petition's merits, and the option to seek judicial review may still be available. Recent or proposed changes to California law Several new state bills on wireless communication faeilities have been introduced; one was recently adopted. On Sept. 29, 2020, Governor Newsom signed Assembly Bill No. 2421, which mandates expedited local approval for standby power generators at wireless towers. The law borrows from contepts in the FCC's rules, but creates entirely new processing requirements for local g.overnments that on IV apply to this narrow class of applications. This law, codified as California Government Code Section 65850.75, is now effective. June 23, 2021 Item #1 Page 4 of 38 Dec. 14, 2021 Item #16 Page 33 of 252 The California Legislature is currently considering at least four bills that would affect the city's authority over communications infrastructure: Senate Bill Nos. 378 and 556, and Assembly Bill Nos. 537 and 1166. • SB 378 would grant telecommunications providers the right to use what's called ;'micro trenching" in the right of way to deploy fiber-optic cables. 2 • SB 556 would require local governments to make their street poles available for small cells and impose procedural requirements for granting access. The City of Carlsbad is on record as having opposed SB 556. • AB 537 would deem local construction permits approved if the local government failed to act on any wireless application within the applicable timeline • AB 1166 would do the same thing as AB 537 except that it would not apply to Section 6409 modifications that already have a deemed granted remedy under federal regulations. Taken together, significant changes in laws related to the.city's authority to influence the wireless infrastructure deployments have already occurred or are likely to occur in the near future. However, the city is well-positioned to respond with any amendments to City Council Policy No. 64 that may be necessary. Fiscal Analysis None. Next Steps Staff and consultants will continue to monitor state and federal legislation and ongoing legal challenges related to wireless communicat ion facilities. Staff anticipate presenting proposed updates to City Council Policy No. 64 in late 2021 for the public's and the City Council's consideration. Environmental Evaluation This action does not constitute a project within the meaning of the California Environmental Quality Act under California Public Resources Code Section 21065 in that it has no potential to cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. Therefore, it does not require environmental review. Public Notification Public notice of this item was posted in keeping with the Ralph M. Brown Act and it was available for public viewing and review at least 72 hours before the scheduled meeting date. Exhibits 1. FCC Consumer Guide on Wireless Devices and Health Concerns 2. City Council Policy No. 64-Wireless Communkation Facilities 3. Correspondence received as of June 18, 2021 at 12:30 p.m. 2 Micro trenching is a means of installing fiber optic cables in a shallow and narrow trench of one to two inches wide that hold multiple conduits for fiber. June 23, 2021 Item #1 Page 5 of 38 Dec. 14, 2021 Item #16 Page 34 of 252 Exhibit 1 ------. ---~.c.onsumer Guide Wireless Devices and Health Concerns Many federal agencies have considered the important issue of determining safe levels of exposure to radiofrequency (RF) energy. In addition to the Federal Communications Commission, federal health and safety agencies such as the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), the National Institute for Occupational Safety and Health (NIOSH) and the Occupational Safety and Health Administration (OSHA) have been actively involved in monitoring and investigating issues related to RF exposure. For example, the FDA has issued guidelines for safe RF emission levels from microwave ovens, has reviewed scientific literature of relevance to RF exposure (see fda.gov/media/135043/download), and continues to monitor exposure issues related to the use of certain RF devices such as cell phones. Likewise, NIOSH conducts investigations and health hazard assessments related to occupati.onal RF exposure. Federal, state and local government agencies and other organizations have generally relied on RF exposure standards developed by expert non-governmental organizations such as the Institute of Electrical and Electronics Engineers (IEEE) and the National Council on Radiation Protection and Measurements (NCRP). Since 1996, the FCC has required that all wireless communications devices sold in the United States meet its minimum guidelines for safe human exposure to radiofrequency (RF) energy. The FCC's guidelines and rules regarding RF exposure are based upon standards developed by IEEE and NCRP and input from other federal agencies, such as those listed above. For wireless devices intended for use near or against the body (such as cell phones, tablets and other portable devices) operating at or below 6 GHz, these guidelines specify exposure limits in terms of Specific Absorption Rate (SAR). The SAR is a measure of the rate that RF energy is absorbed by the body. For exposure to RF energy from wireless devices, the allowable FCC SAR limit is 1.6 watts per kilogram (W/kg), as averaged over one gram of tissue. For wireless devices operating in the frequency range above 6 GHz, the guidelines specify power density as the relevant RF exposure limit. Power density is defined as an amount of RF power per unit area. Existing power density limits apply for whole-body exposure, but power density rimits for localized exposure are being considered (see the Notice of Proposed Rulemaking in ET Docket No. 19-226, FCC 19-126). All wireless devices sold in the US go through a formal FCC approval process to ensure that they do not exceed the exposure limits when operating at the device's highest possible power level. If the FCC learns that a device does not conform with the test report upon which FCC approval is based -in essence, if the device in .stores is not the device the FCC approved -the FCC can withdraw its approval and pursue enfo,rcement action against the appropriate party. For more information on device testing and SAR for cell phones, go to fcc.qov/consumers/quides/specific-absorption-rate-sar-cell- phones-what-it-means-you. Several US government agencies and international organizations work cooperatively to monitor research on the health effects of RF exposure. According to the FDA and the World Health Organization (WHO), among other organizations, to date, there is no consistent or credible scientific evidence of health problems caused by the exposure to radio frequency energy emitted by cell phones. ~ l ~ iiiiiiiiiiiiiiiiFiiiiciiiidciiiiraliiiiCiiiioiiiimiiiimiiiiuiiiiniiiicaiiitioiiiniiis cii·oiiimiiilllliii. siisiiiioniiiiii· iiiCiiioniiisuiiimiiieiiir aiiiniiid iiiG.-.iii,,iiieriiinniiii1eiiiiniiitaiiiiL\ffiiiiiiiairiiiisiiiBiii11riiieiiia11iiiiiii· iii4SiiiiiiiSiiitriiieeiiitiiiNiiiE,iii\\iiii1aiiiishiiiiiniiigtiiioniii., iiDiiiiCiiii20iiii55iiii4iiiiiiiiiiiiiiiiiiiii J uru11~3dmac (1-888-225-532-2) · TTY: 1-888-TELL-FCC (l-888"835-5322) · W1,VW.fcc.gov!Lt~1!t~ovem,ufil:ii\!U~~Bb1~t1 Dec. 14, 2021 Item #16 Page 35 of 252 The FDA further states that "the weight of the scientific evidence does not support an increase in health risks from radio frequency exposure from cell phone use at or below the radio frequency exposure limits set by the FCC" (see fda.gov/radiation-emitting-products/cell-phones/scientific-evidence-cell- phone-safety). The FDA maintains a website on RF issues at fda.gov/Radiation- EmittingProducts/RadiationEmittingProductsandProcedures/HomeBusinessandEntertainment/CellPhon es/default.htm. The WHO has established an International Electromagnetic Fields Project (IEFP) to provide information on health risks, determine research needs and supports efforts to harmonize RF exposure standards. The WHO provides additional information on RF exposure and mobile phone use at who.int/mediacentre/factsheets/fs 193/en/index.html. For more information on the IEFP, go to who.int/peh-emf/en. Some health and safety interest groups have interpreted certain reports to suggest that wireless device use may be linked to cancer and other illnesses, posing potentially greater risks for children than adults. While these assertions have gained increased public attention, currently no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses. Those evaluating the potential risks of using wireless devices agree that more and longer-term studies should explore whether there is a better basis for RF safety standards than is currently used. The FCC closely monitors all of these study results. However, at this time, there is no basis on which to establish a different safety threshold than ·our current requirements. You can find additional useful information on the FCC's website at fcc.gov/rfsafety and links to .some of the other responsible organizations at fcc.qov/engineering-technology/electromagnetic-compatibility- division/radio-frequency-safety/faq/rf-safety#Q28. What You Can Do Even though no scientific evidence currently establishes a definitive link between wireless device use and cancer or other illnesses, and even though all such devices must meet established federal standards for exposure to RF energy, some consumers are skeptical of the science and/or the analysis that underlies the FCC's RF exposure guidelines. Accordingly, some parties recommend taking measures to further reduce exposure to RF energy. The FCC does not endorse the need for these practices, bl.it provides information on some simple steps that you can take to reduce your exposure to- RF energy from cell phones. For example, wireless devices typically emit more RF energy when you are using them. The closer the wireless device is to your body, the more energy you will absorb. Some measures to reduce your RF exposure include: • Reduce the amount of tfme spent using your wireless device. • Use a speakerphone, earpiece or headset to reduce proximity to the head (and thus head exposure). While wired earpieces may conduct some energy to the head and wireless earpieces also emit a small amount of RF energy, both wired and wireless earpieces remove the greatest source of RF energy (the cell phone or handheld device) from proximity to the head and thus can greatly reduce total exposure-to the head. • Increase the distance between wireless devices and your body. • Consider texting rather than talking -but don't text while you are driving. Some parties recommend that you consider the reported SAR value of wireless devices. However, comparing the SAR of different devices may be misleading. First, the actual SAR varies considerably depending upon the conditions of use. In particular, while cell phones are tested at their maximum power levels to ensure safety under even the most severe operating conditions, they will typically Fe iiiiiiiiiil••·eiideiiraiil iiCiiorumiiiii1iimiiiciia tiii' oiinsiiCiiomiiiii111Jii"siisioiiniiiii· iiCoiiniisuiinii1eiir aiiniidiiGiio~•,:iiniimiieniitaiiJ iiA:ii(faiiiriis iiBii,uiicaiiuiiiiii· ii45iiLiiiiSiiiitriieeiitiiNiiE,iiWii' aiishuii" ii1gtiioiitl,iiDiiCii2ii05ii5ii4 iiiiiiiiiiiiiiiiiiii J urus~adm~ (1-888-225-5322) · TTY: 1-888-TELL-FCC ().-888-835-5322) · www.fcc.gov!!t~if:\:overnm&!M:~ff1i.O.tJJ3u Dec. 14, 2021 Item #16 Page 36 of 252 operate at much lower power levels resulting in RF exposures much lower than the reported SAR values. Cell phones constantly vary their power to operate at the minimum power necessary for communications; operation at maximum power occurs infrequently. Second, the reported highest SAR values of wireless devices do not necessarily indicate that a user is exposed to more or less RF energy from one cell phone than from another during normal use (see our guide on SAR and cell phones at fcc.qov/quides/specific-absorption-rate-sar-celt-phones-what-it-means-you). Third, the variation in SAR from one mobile device to the next is relatively small compared to the reduction that can be achieved by the measures described above. Consumers should remember that all wireless devices are certified to meet the FCC's maximum SAR limits. These limits incorporate a considerable safety margin. Information about the maximum SAR value for each phone is publicly available on the FCC website at fcc.gov/general/specific-absorption- rate-sar-cellular-telephones, and may be provided with device documentation or by dialing *#07# on certain models. Additional guidance on reducing RF exposure from cell phones is available on the FDA website at fda. gov /radiation-emitting-products/cell-phones/reducing-rad io-freg uency-exposu re-cell- phones. Other Risks While current research indicates that cell phones do not seem to pose a significant health problem for pacemaker wearers, some studies have shown that wireless devices might interfere with implanted cardiac pacemakers if used within eight inches of the pacemaker. Pacemaker wearers may want to avoid placing or using a wireless device this close to their pacemaker. Additional information on potential cell phone interference with pacemakers and other medical devices is available on the FDA website at fda.gov/radiation-emitting-products/cell-phones/potential-cell-phone-interference- pacemakers-and-other-medical-devices. Consumer Help Cente.r For more information on consumer issues, visit the FCC's Consumer Help Center at fee.gov/consumers. Alternate formats To request this article in an alternate format -braille, large print, Word or text document or audio -write or call us at the address or phone number at the bottom of the page, or send an email to fcc504@fcc.gov. Last Reviewed 10/29/20 ~ iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii 3 iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii ~ Federal Communications Commission · Consumer and Governmental Affairs Bureau · 45 L Street :NE, Washington, DC 20554 JU .£188~.Aima-c (1-888~225-5322) · TTY: 1-888-TELL-FCC (l-llllll-1135-53:U) · WWW fcc.g:ov!lt~1lt~overrun!?iia&~Qbui.&\J. Dec. 14, 2021 Item #16 Page 37 of 252 {city of Carlsbad Council Policy Statement Category: WIRELESS COMMUNICATION FACILITIES Policy No. Date Issued: Effective Date: Resolution No. Cancellation Date: Exhibit 2 64 9/26/2017 9/26/2017 2017-189 Supersedes No. 64 04/10/12 Specific Subject: Review and Operation Guidelines for Wireless Communication Facilities PURPOSE: Wireless communication facilities,, or WCFs, refer to the many facilities with antennas and supporting equipment that receive and transmit signals and together enable mobile or other "wire-free" communication and information services. Unlike ground-wired telecommunicatrons, such as the land- based telephone system, wireless communication technologies, by their operational nature, require .a network of antennas mounted at various heights and attached typically to buildings, structures and poles. A common name for a WCF is "cell site." WCF proposals to the city became commonplace in the mid-1990s. Since then, Carlsbad has processed dozens of new WCF applications and numerous permit renewals for existing facilities, all without benefit of specific review criteria. As the city's population and the popularity and variety of wireless services grow, providers· are expected to install more facilities to improve .coverage and gain user capacity. This policy's purpose is to guide the public, applicants, boards and commissions, and staff in reviewing the placement, construction, and modification of WCFs. The goal is to assure WCFs in Carlsbad: • Are reviewed and provid~d within the parameters of law. • Are encouraged to locate away from residential and other sensitive areas, except as allowed by Section A. of this policy -Location Guidelines for the Placement of WCFs. • Represent the fewest possible facilities necessary to complete a network without discriminating against providers of functionally equivalent services or prohibiting the provision of wireless services. • Use, as much as possible, "stealth" techniques so they are not seen or easily noticed. • Operate consistent with Carlsbad's quality of life. This policy applies to all commercial providers of wireless communication services. It does not apply to amateur (HAM) radio antennas, dish antennas, collocations and/or modifications covered· under Federal Communications Commission {FCC) regulations at 47 C.F.R. §§ 1.40001 et seq. and other antennas installed on a residence for an individual's private use. Page 1 oflO Item #Jtem #1 Pa@1ooij ~fJ@ Dec. 14, 2021 Item #16 Page 38 of 252 Policy No. 64 BACKGROUND: To secure the right to provide personal wireless services to a region, companies often must obtain airwave licenses that are auctioned by the FCC, the federal agency that regulates the telecommunications industry. For radio services that use license spectrum, the FCC mandates the licensees establish their service networks as quickly as possible. In Carlsbad, there are three common types of wireless communication systems: Cellular, PCS (Personal Communications Services), ,and ESMR (Enhanced Specialized Mobile Radio). POLICY: REVIEW RESTRICTIONS: The Federal Telecommunications Act of 1996 (TCA) preserves the city's ability to regulate the placement, construction, and modification of wireless communication facilities subject to the following restrictions. • The city may not favor any carrier. Regulations may not unreasonably discriminate among functionally equivalent service providers. • The city may not prevent completion ofa network. Regulations may not prohibit or have the effect of prohibiting the provision of personal wireless services. The denial of a single permit application may cause an effective prohibition if it would perpetuate a significant gap even though the app!icarit proposes the least intrusive means to clos~ that gap. • Applications are to be processed in a reasonable time. A city must act on an application for WCFs within a "reasonable" amount of time, which the FCC generally defines as either 60, 90, or 150 days from the time an application is submitted and depending on the nature and scope of the proposed wireless facility. • The city cannot deny an application because of perceived radio frequency health hazards. If federal standards are met, cities may not deny permits on the grounds that radio frequency emissions (RF) are harmful to the environment or to the health of residents. However, local governments may require wireless carriers to prove compliance with the standards. The FCC has established procedures to enforce compliance with its rules. • The city cannot deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station. The FCC promulgated detailed regulations for this restriction, including a definition for "substantial change" and procedural rules for processing these applications, which can be found at 47 C.F.R. § 1.40001 et seq. • Certain collocation facilities are not subject to discretionary permit requirements. Under California Government Code section 65850.6, a collocation facility (where two or more wireless operators have located their antennas at a common location} shall be a permitted use not subject to discretionary permit requirements if it satisfies the requirements of that statute. Page2 of 10 Dec. 14, 2021 Item #16 Page 39 of 252 Policy No. 64 • A decision to deny an application must be supported by substantial evidence. A decision to deny a WCF application must be in writing and supported by substantial evidence contained in a written record. The reasons for the denial must also be contained in .a written record contemporaneously available w·1th the written denial notice and must be clear enough to enable judicial review. HEALTH CONCERNS & SAFEGUARDS: Possible health risks from exposure to the RF electromagnetic fields generated by WCFs are a significant community concern. Accordingly, the FCC requires facilities to comply with RF exposure g.uidelines published in the Code of Federal Regulations (see 47 CFR § 1.1307 and 47 CFR §1.1310). The limits of exposure established by the guidelines are designed to protect the public health with a very large margin of safety as they are approximately 50 times below the levels that generally are accepted as having the potential to cause a measurable change in human physiology. Both the Environmental Protection Agency and Food and Drug Administration have endorsed the FCC's exposure limits, and courts have upheld the FCC rules requiring compliance with the limits. Most WCFs create maximum exposures that are only a small fraction of the limits. Furthermore, because the antennas in a PCS, cellular, or other wireless network operate more efficiently when in a line of sight arrangement to effectively transmit, their power is focused on the horizon instead of toward the sky or ground. Generally, unless a person is physically next to and at the same height as an anterina, it is not possible to be exposed to RF emissions that exceed the maximum permissible exposure. The FCC requires providers, upon li4:ense application, renewal, or modification, to demonstrate compliance with RF exposure guidehnes. Where two or more wireless operators have loq:ited their antennas at a common location (called "collocation"), the total exposure from all antennas taken together must bewithin FCC guidelines. Many facilities are exempt from having to demonstrat e compliance with FCC guidelines, however, because their low power generation or height above ground level is highly unlikely to cause exposures that exceed the guidelines. REVIEW AND APPROVAL GUIDELINES:. Carlsbad Municipal Code Section 21.42.140(8)(165) allows WCFs in all zones with the approval of a conditional use permlt (CUP) and subject to this policy.· These guidelines should be followed in the review of CUPs for new WCFs as well as extensions and amendments to CUPs for existing installations. For WCFs to be located in the public right-of-way of roads, which genera lly is not zoned, the following permitting requirements apply: (1) A right of way permit shall be required instead of a CUP for a WCF that is {i} to be located on an existing or replacement pole, (ii) is consistent with the preferred locations in Location Guideline A.1 (or if in a discouraged location in Location Guideline A.2, bas all equipment underground), and (iii) is consistent with Design Guidelines for WCFs in the Public Right-of-Way C; (2) A minor CUP by Process 1 shall be required for a WCF that is (i) to be located on an existing or replacement pole, (ii) is in a discouraged location in Section A with above-ground equipment, and (iii} is consistent with Design Guidelines for WCFs in t he Public Right-of-Way C; , Page 3 oflO Dec. 14, 2021 Item #16 Page 40 of 252 Policy No. 64 (3) A CUP by Process 2 shall be required for a.II other WCFs not meeting the criteria for approval subject to a right of way permit or a minor CUP by process 1. A. Location Guidelines For Placement of WCFs 1. · Preferred Locatlons -WCFs are encouraged to locate on existing buildings._and structures. In addition, WCFs should be located in the following zones and areas, which are listed in order of descending preference: a. Industrial zones. b. Commercial zones. c. Other non-residential zones, except open space. d. Public right-of-way of roads adjacent to industrial and commercial zones and identified on the map attached as Exhibit A. e. Public property (e.g., city facilities) not in residential areas. f. Major power transmission towers in non-residential zones or areas. g. Public and private utility installations (not publicly accessible) in residential and open space zones (e.g., water tanks, reservoirs, or the existing communication towers near Maerkle Reservoir). h. Parks and community facilities (e.g., places of worship, community centers) in residential zones or areas. i. Public right-of~way of roads adjacent to residential zones and identified on the map attached as Exhibit A. 2. Discouraged Locutions -WCFs should not locate in any of the following zones or areas unless the applicant demonstrates no feasible alternative exists.as required by Application and Review Guideline E.2. a. Open space zones and lots (except as noted in Location Guideline A.1.). b. Residential zones or areas (except as noted in Location Guideline A.1). c. Major power transmission towers in corridors located in/or next to a residential zone or area. d. Environmentally sensitive habitat. e. Public right-of-way of roads not identified on the map attached as Exhibit A. f. On vacant land. 3. Visibility to the Public-In all areas, WCFs should be located where least visible to the public and where least disruptive to the appearance ofthe host property. Furthermore, no WCF should be installed on an exposed ridgeline or in a location readily visible from a public place, recreation area, scenic area or residential area unless it is satisfactorily located 1 and/or screened so it is hfdden or disguised. 4. Co/location -Collocating with existing or other planned wireless communication facilities is recommended whenever feasible and appropriate. Service providers are also encouraged to collocate with water tanks, major power transmission and distribution towers, and other utility structures wh.en in compliance with these guidelines. The city mu.st approve collocation applications unless the expansion adds significantly to the height or width of a facility. sepfemlJet 26, 2011 Page 4 oflO Item #J~m #1 P~ee9--0fif3la Dec. 14, 2021 Item #16 Page 41 of 252 Policy No. 64 , 5. Monopoles -No new ground-mounted monopoles should be permitted unless the applicant demonstrates no existing monopole, building, or structure can accommodate the applicant's proposed .antenna as required by Application and Review Guideline E.3. B. Design Guidelines 1. Stealth Design -All aspects of a WCF, including the supports, antennas, screening methods1 and equipment should exhibit "stealth" design techniques so they visually blend into the background or the surface on which they are mounted. Subject to city approval, developers should use false architectural elements {e.g., cupolas, bell towers, dormers, and chimneys), architectural treatments (e.g., colors and materials), elements replicating natural features (e.g., trees and rocks), landscaping, and other creative means to hide or disguise WCFs. Stealth can also refer to facilit ies completely hidden by existing improvements, such as parapet walls. 2. Equipment-Equipment should be located within existing buildings to the extent feasible. If equipment must be .located outside, it should be screened with walls and plants. If small outbuildings are constructed specifically to house equipment, they should be designed and treated to mat ch nearby architecture or the surrounding landscape. 3. Co/location -Whenever feasible and appropriate, WCF design and placement should promote and enable collocation. 4. Height -WCFs should adhere to the existing height limitations of the. zone in which they are located. 5. Setbacks-WCFs, including all equipment and improvements, should adhere to the building setback requirements of the zone in which they are located, with the following clarifications: a. If on .a _site next to a residential zone, the WCF should be set back from the residential zone boundary a minimum distance equal to the above-ground height of the overall support struct ure's height. b. If in a residential zone and in a public utility installation, park, or community facility, the WCF snould be set back from the property boundaries of the uUlity installation, park, or community facility a minimum distance equal to the above-ground height of the overall support structure's height. c. The Planning Commission may decrease or increase these setbacks if it finds such changes would improve the overall compatibilit y of the WCF based on the factors contained in Application and Review Guideline E.4. 6. Building or Structure-Mounted WCFs: a. Antennas and their associated mountings should generally not project outward more than 24 inches from the face of t he building. b. Roof-mounted antennas should be located as far away as possible from the outer edge of a building or structure and should not be placed on roof peaks. c. If permitted, WCFs on residential buildings should only be allowed if disguised as a typical residential feature (e.g., a chimney, a dormer) and if all equipment is located inside, not outside, the butlding. Page 5 oflO Item #'2tem #1 Pa~f5t0bfif~ Dec. 14, 2021 Item #16 Page 42 of 252 Policy No. 64 7. Ground-mounted Monopoles: a. Alf antennas should be mounted as close as possible to the monopole to improve facility appearance. b. The· placement, screening, and disguise of the monopole should fit with the surrounding site design, architecture, and landscaping. Tree disguises, such as a "mono0palm," may be acceptable depending on their quality and compatibility with landscaping nearby. c. Landscaping should be provided as necessary to screen, complement, or add rea.lism to a monopole. Landscaping should include mature shrubs and trees. Some of the trees should be talf enough to screen at least three-quarters of the height of the monopole at the time of planting. Sometimes, land!>caping may not.be needed because of the monopole's location or vegetatron already nearby. d. When possible and in compliance with these guidelines, monopoles should be placed next to tall buildings, structures, or tall trees. 8. Lattice Towers a. New lattice towers should not be permitted in the city. b. On existing lattice towers, all antennas should be mounted as close as possible to the tower so they are less noticeable. 9. Undergrounding-AII utilities should be placed underground. 10. Regulatory Compliance -WCFs should comply with all FCC, FAA (Federal Aviation Administration), and local zoning and building code requirements. C. Design Guidelines for WCFs in the Public Right-of-Way 1. WCFs on Existing and Replacement Poles a. The use of an existing pole, replacement pole or other existing structure shall require the authorization of the owner of the pble or structure. b. The antenna assembly may not exceed four feet above the height of the existing pole. c. The antenna(s) associated with the installation shall be concealed with a radome that also conceals the cable connections, antenna mount, and other hardware. d. All pole-mounted equipment shall be painted to match the color of the surface of the pole on which they are attached or shall otherwise be screened to reduce t heir visibility. 2. WCFs on New Poles a. All WCFs on new poles require a CUP by Process 2. b. No more than one new pole per block will be permitted unless the applicant demonstrates with clear and convincing evidence that: (1) no other existing structures are available to the applicant; (2) a new pole or structure is essential to providing coverage; and (3) the new pole or structure is the least intrusive means in terms of design and placement to re·asonably achieve the applicant's technical objective. c. The centerline of any new pole must be aligned with the centerlines of existing poles on the same sidewalk segment. Any new pole and/or equipment and other Sef)fernJJer 26, 2017 Page 6 of 10 Item #2tem #1 Page~1L~f.ffl Dec. 14, 2021 Item #16 Page 43 of 252 Policy No. 64 improvements associated with a new pole or an existing pole must be set back from intersections, alleys, and driveways and placed in locations where it will not obstruct motorists' sight lines or pedestrian access. In general, there is a presumption of no obstruction where a new pole and/or equipment is set back at least: (1) 50 feet from any intersection; (2) six feet from any driveway cut or alley entrance or exit; (3) and six feet from any permanent object or existing lawfully-permitted encroachment in the public right-of-way, including without limitation bicycle racks, traffic signs and signals, trees, open tree wells, benches or other street furniture, streetlights, door swings, gate swings, or sidewalk cafe enclosures. d. The city may, in its discretion, require an additional setback for a specific pole when the city determines that the presumptively acceptable setback would obstruct motorists' sight lines or pedestrian access. e. The city may require the applicant to install functional streetlights and/or banners when technically feasible and the city determines that such additions would enhance the overall appearance and usefulness of the new pole. f. New poles shall not exceed the height limit for the zoning district nearest to the base of the pole or the average height of poles within a 300-foot radius, whichever is less. 3. Design Guidelines Applicable to WCFs on Existing and New Poles a. Each antenna shall not exceed 3 cubic feet in volume; the cumulative antenna volume per pole shall not exceed 6 cubic feet. Mounting arms, hardware, and concealment elements such as shrouds, radomes, or other covers are included in the antenna volume limits. b. All other equipment associated with the WCF shall not exceed 6.5 cubic feet in volume. All non-antenna equipment including ground-mounted meter pedestals and concealment elements such as shrouds and cages, are included in the equipment volume limit. Electric meters and disconnect switches that are mounted on the pole and any equipment placed underground are not included in the equipment volume limit. c. Equipment shall be placed underground in discouraged locations. If it can be demonstrated that complete undergrounding of associated equipment is not possible, waiver requests involving landscaping or other screening techniques or visual mitigation will be considered. All equipment not placed underground shall be: (1) placed in a ground-mounted equipment shroud or cabinet that contains all equipment associated with the WCF other than the antenna; and {2) set back at least 2.5 feet from the back of the curb and within the parkway or greenway or 2.5 feet back from the edge of the sidewalk when it is contiguous to the curb. All cables and conduits associated with the equipment shall be concealed from view, routed directly through the pole, and placed underground between the pole and the ground-mounted cabinet. d. All equipment associated with the WCF shall be located so as to minimize impacts to pedestrian access and vehicular site distance and safety. e. Cabinets for appurtenant telephone and/or fiber optic utilities may not extend more than 10 inches beyond the pole centerline on either side, and must be painted, wrapped, or otherwise colored to match the pole. Micrbwave or other wireless backhaul shall not have a separate and unconcealed antenna. f. To reduce clutter and deter vandalism, excess fiber optic or coaxial cables shall not be spooled, coiled, or otherwise stored on the pole whether _in a cabinet or not. Sept?em~er 26, 2011 Page 7 oflO Dec. 14, 2021 Item #16 Page 44 of 252 Policy No. 64 D. Performance Guidelines 1. Noise -All equipment, such as emergency generators and air conditioners, should be designed and operated consistent with the city noise standards. 2. Maintenance -All facilities, related equipment, and landscaping should be maintained in good condition and free from trash, debris, graffiti, and any form of vandalism. All required landscaping should be automatically irrigated. Damaged equipment .ind damaged, dead, or decaying,Jandscaping should be replaced promptly. Replacement of landscapi ng that provides facility screening should be, as much as possible, of similar size (including height), type, and screening capability at the time of planting as the plant(s) being replaced. 3. Maintenance Hours-Except in an emergency posing an immediate public health and safety threat, maintenance activities in or within 100 feet of a residential zone should only occur between 7 AM (8 AM on Saturdays) and sunset. Mainte.nance should not take place on. Sundays or holidays. 4. Lighting-Security lighting should be kept to a minimum and should only be triggered by a motion detector where practical. 5. Compliance with FCC RF Exposure Guidefines -Within six (6) months after the issuance of · occupancy, and with each time extension or amendment request, the developer/operator should submit to the City Planner either verification that the WCF is categorically excluded from having to determine compliance with the guidelines per 47 CFR §1.1307(b)(1} or a project implementation report that provides cumulative field measurements of RF electromagnetic field.s of all antennas installed at the subject site. The report should quantify the RF emissions and compare the results with currently accepted ANSI/IEEE standards as specified by the FCC. The City Planner should review the report for consistency with the project's preliminary proposal report submitted with the initial project application and the accepted ANSI/IEEE standards. If, on review, the City Planner finds the project does not meet ANSI/IEEE standards, the city may revoke or modify the CUP. 6. Abandonment -Any WCF that is not operated for a continuous period of 180 days will be considered abandoned. Within 90 days of receipt of notice from the city notifying the owner of such abandonment, the WCF owner must remove the facility and restore the site, as much as is reasonable and practical, to its prior condition. If such ·wcF is not removed within the 90 days, the WCF will be considered a nuisance and in addition to any other available remedy, wil! be subject to abatement under Chapter 6.16 of the Carlsbad Municipal Code. If there are two or more users of a single WCF, then this provision will not become effective .until all users stop using th.e WCF. The provider or owner must give notice to the city of the intent to discontinue use of any facility before discontinuing the use. E. Application and Review Guidelines 1. Besides the typical submittal requirements for a CUP (including plans, landscape details, and color and material samples, as appropriate), all WCF applications should include the following items: Page8 oflO Item #2Jtem #1 PagegtJ.EbfifJ§ Dec. 14, 2021 Item #16 Page 45 of 252 Policy No. 64 a. A description of the site selection process undertaken for the WCF proposed. Coverage objectives and the reasohs for ·selecting the proposed site and rejecting other sites should be provided. b. A description or map of the applicant's existing and other proposed sites. c. A description of the wireless system proposed (e.g., cellular, PCS, etc.) and its consumer features {e.g., voice, video, and data transmis.sions). d. Verification that the proposed WCF will either comply with the FCC's guidelines for human exposure to RF electromagnetic fields or will be categorically excluded from having to determine compliance with the guidelines per 47 CFR §1.1307{b)(1). If WCFs are proposed for collocation, the verification must show the total exposure from all facilities taken together meets the FCC guidelines. e. Color photo-simulation exhibits, prepared to scale, of the proposed WCF to show what the project would look like at its proposed location and from surrounding viewpoints. The City Planner m~y waive the requirement to provide the exhibits if he determines they are unnecessary. 2. For WCFs proposed in a zone or area that is a discouraged WCF location as listed in Location Guideline A.2., the applicant should provide evidence that no location in a preferred zone or area as liste-d in Location Guideline A.1. can accommodate the applicant's proposed facility. Evidence should document that preferred zone or area locations do not meet engineering, coverage, location, or height requirements, or have other unsuitable limitations. 3. For proposed new ground-mounted monopoles, the applicant should also provide evidence to the city's satisfaction that no existing monopole, building, structure, or WCF site ("existing facility") cou Id accommodate the proposa I. Evidence should demonstrate any of the following: a. No existing facility is located within the geographic area or provides the height or structural strength needed to meet the applicant's engineering requirements. b. The applicant's proposed WCF would cause electromagnetic interference with-the existing antennae array or vice vers.a. c. The fees, costs; or contractual provisions required by the owner to l_ocate on an existing facility or to modify the same to enable location are unreasonable. Costs exceeding new monopole development are presumed to be unreasonable. d. The appli.cant demonstrates to the decision-maker's (Planning Commission -or City Planner) satisfaction that there are other limiting factors that render an existing facility unsuitable. 4. In considering a CUP for a WCF, the decision-maker (Planning Commi.ssion or City Planner) should consider the following factors: a. Compliance with these guidelines. b. Height and setbacks. c. Proximity to residential uses. _ d. The nature of uses on adjacent and nearby properties. e. Surrounding topography and landscaping. f. Quality and compatibility pf design and screening. g. Impacts on public views and the vi_sual quality of the surrounding area. h. Availability of other facilities and buildings for collocation. Sep fern~ 26, 2017 Page 9 of 10 Item #'2tem #1 Pags~4~f3@ Dec. 14, 2021 Item #16 Page 46 of 252 Policy No. 64 S. Conditional Use Permits for WCFs shall be granted for a period not to exceed ten years unless public safety reasons and/or substantial land use reasons justify a shorter term. A WCF that is decommissioned, discontinued, or otherwise abandoned by the owner or operator for a continuous one-year period is subject to revocation under Section 21.42.120 of the Carlsbad Municipal Code. Upon a request for either an extension or an .amendment of a CUP, the WCF should be reevaluated to assess the impact of the facility on adjacent properties, the record of maintenance and performance with reference to the conditions of approval, and consistency with these guidelines. Additionally, the city should review the appropriateness of the existing facility's design, and the applicant should be required to document that the WCF maintains the design that is the sma llest, most efficient, and least visible and that there are not now more appropriate and ava i!able locations for the facility, such as the opportunity to collocate or relocate to an existing building. 6. Collocation. For the purposes of collocation, the following definitions apply: (i) "Collocation facility'' means the placement or installation of WCFs, including antennas, and re!ated equipment, on or immediately adjacent to, a wireless telecommunications collocation facility. (ii) "Wireless telecommunications facility" means equipment and network emergency power systems that are integral to providing wireless telecommunications services. (iii) "Wireless telecommunications collocation facility'' or "WTCF" means a wireless telecommunications facility that includes Collocation facilities. a. A condition91 use permit shall not be required for a proposed WCF Collocation facility which will be placed on a previously approved WTCF provided that: (i) The new WCF Collocation facility is consistent with requirements for the existing WTCF installation; and · (ii} The modification of an existing wireless tower or base station does not physically change the dimensions of such tower or base station. b. Approval of an application to construct or reconstruct a WCF wireless facility shall not require an escrow deposit for removal of the WCF Collocation facility or any component thereof. c. Notwithstanding subsection (b) above, the city may require a performance bond or other surety or another form of security if the amount required is rationally related to the cost of removal. 7. Applications from a single provider of wireless communication services for up to 10 permits to locate WCFs on existing or replacement poles in the right-of-way, and meeting the criteria for right of way permits, may be batched and processed together. A single provider may not submit more than one batch of applications at one time. Sep~mf}er 26, 2017 Page 10 oflO Dec. 14, 2021 Item #16 Page 47 of 252 >' -Preferred Locations for Placement of WCF in the ROW xd, 02/08/2017 Exhibit A Preferred Locations for Placement of Wireless ~ser,fe~~FIB-lflication Facilities i1~JQje~OO~~y Dec. 14, 2021 Item #16 Page 48 of 252 Hector Gomez From: Sent: To: Cc: Subject Dear Mr. Haber: Irene Tsutsui < irenegdnight@earthlink.net> Wednesday, February 19, 2020 9:57 AM Jason Haber /\II Rcc:Eiivc -J\gend.:J llern-;; 1;.~-- For the lnform;ition of th~: - Cl'fY COUNCIL Date:J/l'l/1~ CA L cc.~ coq_ v-coo ::S::no: 1at4b Scott Chadwick; Celia .Brewer; Matthew Hall; Priya Bhat-Patel; Cori Schumacher; Keith Blackburn; City Clerk 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON 5G DEPLOYMENT IN CARLSBAD Thank you for giving me the opportunity to discus-s with you my great concerns (as also conveyed to me-by others) with respect to the SG 'small cell' deployment in Carlsbad. Just to summarize the high points of our-discussion, here are my fin~I thpughts. A. The most critical issue is for the City of Carlsbad to implement an immediate and emergency pause ordinance (as has been done in many other cities) in the construction and operation of-5G 'small cell' wireless infrasfructure in any form {to include but not be limited to 4G/5G towers and antennas) at least until the workshop transpires. Under the circumstances: of high uncertainty and probable harm to humans and the environment per over 1500 scientific studies and numerous lawsuits against the FCC with its outdated 1996 "thermal" only safety guid~tines, the City of Carlsbad has a moral imperative and the legal authority to implement an rmmediate emergency pause ordinance B. It is extremely urgent and important to have the subject of SG 'small cell' infrastructure (intruding pending 4G/5G construction and operation) put on the City Council meeting agenda ASAP. I ask this once again since we have done so repeatedly over the last 2 months ln various ways to no ava1L I and others would also like to see the May 12 workshop changed to an earlier date. These steps would go a long way·in assuring us that the urgen~y of the 4G/5G 'small cell' infrastructure con_cerns are being addressed in a serious and timely manner. You had asked if I/we had met with anyone; a meeting arranged with one qr two council members and someone from your planning/public works department would be useful to address some of our questions. C. When it c;omes time to have the workshop, it is crucial that we (citizens) be given the opportunity to give our input applying the Precautionary Principle approach. It is important that citizens have a say in decisions that are made with respect to 4G/5G 'small cell' deployment since we are the ones who are being expo.sed to [ts pervasive wireless radiation and the resulting health, safety and security hazards not to mention how the aesthetics of the city qnd our house property values are being negatively impacted. D, D, We would prefer to have an expert who is well-informed on all aspects of the health, safety and security facets of 46/SG 'small cell' wireless technology and infrastructure be a main panel advisor at the workshop; an adviser or consultant who is mainly an authority on telecommunications law will not afford us the same expertise to adtjress citizens' concerns. If the City does not know someone, may I suggest we be allowed to bring in our own advisor(s)? I would appreciate hearing back from you by March 1, 2020, or at the earliest moment in Which you may become informed of the issue of SG 'small cell' infrastructure/deployment being put on the City Council meeting agenda. I have sent copies of this letter to all parties who were sent my.original February 7th letter. Sincerely, Irene Tsutsui June 23, 2021 1 Item #1 Page 20 of 38 Dec. 14, 2021 Item #16 Page 49 of 252 Carlsbad residet'lt Ph 760-602-0839 From: Jason Haber [mailto:Jason.Haber@carlsbadca.gov] Sent: Tuesday, February 18, 2020 2:08 PM To: Irene Tsutsui · Subject: RE: 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON SG DEPLOYMENT IN CARLSBAD . Ms. Tsutsui- A call at 2:30 today would be fine. You can reach me at 760-434-2958. Thanks, Jason Haber Intergovernmental Affairs Dir~ctbr City of Carlsbad From: Irene, Tsutsui [mailto:ireneg~night@earthlirik.net] Sent: Tuesday, February 18, 2020 1:44 PM To: Jason Haber <Jason.Haber@carlsbadca:gov> Subject; RE; 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON SG DEPLOYMENT IN CARLSBAD Dear Mr. Haber, Thankyovfor your response. My 760-602.-0839 is a working phone number, but I po have .a no 'robocall' block for those calls so maybe somet hing happened with that. . . May I call you this afternoon about 2:30 pm or what. other time is convenient? Thank you, . Irene Tsutsui From: Jason Haber [mailto:Jason.Haber@carlsbadca.gov] Sent: Tuesda·y, February 18, 2020 11:39 AM To: irenegdilight@earthlink.net Cc: Scott Cha.dwicl<; City Clerk Subject: RE: 5 LAWSUITS vs FCC/SAFElY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON SG DEPLOYMENT IN CARLSBAD Dear Ms. Tsutsuf - Th,ank you for contacting the City of Carlsbad and sharing your concerns regarding SG deployment. Our City Manager, Scott Chadwick, asked me to contact you regarding those concerns and to inform you that we a re planning to address this matter at·a City Council workshop on May 12 (5 p.m. at the Faraday Administration Center -1635 Faraday Ave.). I tried contacting you at the phone number you provided below, but the number ~s no 1(:mger in service. Please contact me at your convenience should you wish to discuss this matter further. Thank you, June 23; 2021 Item #1 Page 21 of 38 Dec. 14, 2021 Item #16 Page 50 of 252 Jason Haber Intergovernmental Affairs Director (city of Carlsbad 760-434-2958 I Jason.Haber@carlsbadca.gov 1200 Carlsbad Village Drive Carlsbad, CA 92008-1949 www.cartsbadca.gov Facebook I Twitter I You Tube I .E!!.g[ I Pinterest I Enews From: Irene Tsutsui <irenegdnight@earthlink.ntl> Sent: Friday, February 7.,,. 2020 12:43 PM To: Scott Chadwick <Scot t.Chadwkk@carfsbadca.gov> Cc: City Clerk <Clerk@carlsbadca.gov> Subject: 5 LAWSUITS VS FCC/SAFETY CONCERNS REQUIRE IMMEDIATE MORATORIUM ON SG DEPLOYMENT IN CARLSBAD lmpprtance: High Dear Mr. Chadwick: car!sbad residents are becoming increasingly concerned about the SG/Smart Cell towers and antennas already installed with others assumed to be in the pipeline. These are being deployed with no consfderation being given to the negative impacts to citizens' health and safety. Recent major lawsuits reflect the growing implausibility of the 5G deployment under 'business as usual' conditions and demand your immediate attention. rn order to help you grasp the urgency of the situation, I am sending the attached article written by attorneys summarizing the lawsuit by Montgomery County, MD vs. ·FCC {h,1ws4ft #1} The_artide gives an excellent overview.of the main issues concerning Carlsbad citizens regardi11g the installation of SG/Smart Cell towers and antennas. The primary issues qf health.and safety \Vere never properly addressed (for pecades) by the FCC which simply stuck to it,s extremely outdated 19% s•afety guldelines. I spoke at the January 21 City Council meeting to inform you that the FCC's omission of "non-them,al" measurements does a terri.ble injustice to anyone unwittingly harmed from exposure to wireless radiation at the lower non-thermal levels. By limiting its safety guidelines to "thermal'' only spedfiC?tions, the FCC has completely ignored thousands of sdeptific research reports conveying damage to humans and. living tnings on a biological level from non-thermal exposure. Four other major lawsuits filed have put the FCC under growing legal pressure. The outcome of all the lawsuits {including the National League of Cities 2rro attachment laws1.fit #2) will determine whether or not SG/Smart Cell wireless technology can continue to be deployed. As it is nowr in my personal viewahy SG tower or antenna that has already been installed has been authorized under illegal auspices .. As stated in the attached actic;le, "Specificallyi Montgomery County ls-asking the Ninth Circuit to determine whether the FCC violated the National Environmental Policy Act and the Administra.tive Procedure Act by failing to conduct an environmental analysis of the RF star,dards and potential 5G health risks, or explain why it did not consider whether its own existing RF standards will be protective of human· heQ/th in a new SG world." ... Yet despite th1s mandated ob/fgation to protect the public health, the FCC ignored Its NEPA obligations in the rush for nationwide migration to SG." June 23, 2021 3 Item #1 Page 22 of 38 Dec. 14, 2021 Item #16 Page 51 of 252 ,;Similar to the FCC's shortcomings under NEPA, the FCC also viol~ted the APA because it failed to consider whether the current RF standards will fully protect the health and safety of citizens living and working directly adjacent to SG smqll ceJ/s and did not explain why it ignored this relevant factor. Under the APA, courts will strike down agency action as arbitrary and coptidous if the agency has, among otherthingsj "entirely failed to consider an important aspect of the problem." The FCC has acknowledged it has ai respopsibility to fol1ow the r,egula.t{ons so they can no longer continue to biiry their head in the sand. The second attachment shows lists of National League qf Cities (US) plaintiffs in September 2019 an.d January 2020, Note, the number of plaintiffs has grown substant'ially (S:0%+ now com.prising almost tvvo pages) in four months ago indicating the growing groundswell movementagaJnst SG w'ireless technology b~ing deployed without safety studies or-updated guidelines to ensure the health and safety of c:itize~. Note toward the bottom (Via 'techncicracy' link below my signature J a December listing of the ''.Law$uit,ri-r~gulat«1rs vs. FCC ~lieges. theft-and redirection of estimated $1 trillion in funds ... " (lawsuit #:3') T:tle· outcome .of this tawsuit could 9-ave a very deleterious effect on further deployment of SG/Smart Cell to¾',ers· and aiitenn<l§/wfreless techIJology; basically it alleges thatutili.ty consumers bave·been paying forWlRE'D technglogyservice for many years thus ate entitled to receive WIRED vs. Wireless service, the...cheaper but in ore. dangerous option_ health~wise. The netvly filed laW.:Sliit again$tthe FCC by Robert F. Kennedy Jr's, Children Pefense Fufi,d (lawsuit #4) ·vVHl garnerwide::s~11po:rt_siniilar towh~t,his t~am gather,ed in Chailengip.g the SQfety of M0'1santo's Roundup . (glyphosate) weed killer~ Pare.ntcompany Bayer recently announced an $8 billion settlement of claims with an additional $2 biUion to be.allocated fo future damage claims from toxic glyphosate exposure. Based on the success ofthe Kennedy legal teams lawsuit agafost al:Ila}pr gpliath agricu1tural.entity, please considerthe huge impact Kennedy's lawsuit-Will likely have on weakening the-FCC's l'egal defense of its having. violated its NEPA and APA obligations. If the courts determine thatthe f CC.must update .its safety guidelines,. this will have a huge impact on. the SG rollout possibly imposing a moratorium or severe restrictions on same.· CHO v the Federal Communication Commission {FCC ... (Robert F. Kennedy Jr's Cbildr_ens . Health Defense . .lawsuit #4) ,m-, vhttps:ljchifdrenshealthdefense.org/ .. ./legal/chd-v-federal-comrriunication-commission-fc Additionally, anotherrecentlawsui~will weigh heavily ag~instthe FCC. ,Scientists Sue FCC for Dismissing Studi~s Li_nking Cell Phone Radiation to Canc~r (iawsuit #5) https:ljlawandcrime.com/administrative-law/scientists-sue-fcc-for-dismissing-claims-that-cell-phone-radiatidn-causes- ~~~ . ; The 'technocracy'link (below my signature) indicates the strong global movementagalnst SG; example, the 100 Italian . , municipalities noted below and a moratorium called for via The SG appealsigned by 253 scientists and 42 nations. note there is a listof lawsuits named in o.ne item a$ you strait down the page. The second Ifni< www.biolnitiative.org often named as a reference it-em· in~ law?uits provtdE!s peer reviewed studies (non-industry) on the hea Ith aspects, and the summaries and charts and -graphs show the majority of reports point to the health hazards of RF-EMF radiation; the website has been updated since 2012. I am sending this information to you because I do not feel cititens' concerns expressed at the City Council meetings have been taken with the !<ind of urgency that is needed. It is important that you and others do your due diligence to determine t~e high risk to which Carlsbad citizens are being exposed every time a new SG/Smart Cell tower or antenna .is installed especially in schools and residential neighborhoods. This equipment is not safe not only on the health front, but the fire hazard and uninsurability/liability is something else that was poinfed out to you. A thorough review of the lawsuits and accompanying complaints would shed light on the magnitude of the problems and dangers which the SG roflout exposes to citiz_ens and especially chil.dren and electro-sensltive peopie fearful of harmful health and safety consequences, June 23, 2021 4 Item #1 Page 23 of 38 Dec. 14, 2021 Item #16 Page 52 of 252 I and other concerned citizens (including the hundreds of petition signers submitted to the City Co,uncil and officials on Jariuary 21) seek an urgent moratorium on 5G wireless deployment. The Cjty has a' legal right to t ake emergency action using the Precautionary Principle or precautionary approach which is beirtg used worldwide as-a strategy combining public input with viable and/or alternate solutions. The recent lawsuits point to the high uncertainty and legal risks associated with continuing the 5G deployment without reservation or expforing alternatives. Uncertainty argues for an emergency moratorium using the precautionary approach until the courts decide the legal outcomes of lawsuits filed against the FCC. Cities and countries have adopted such an a pproa'ch incorpo.rating public input to either ban or severely restrict SG wireless deployment . The World Health Organization has published a guideline including recommendations from numerous experts on implementing a strategy based on the Precautionary Principle. (see link below this paragraph) I urge you to review it since the wireless health issue is unsettled and published reports on the healt h dange.rs of wireless technology have ra'ised serious issues that have not yet been addressed by the FCC. Note, '{public partkipation" and exploring "alternate courses of action11 are required to ensure a "positive approach to health protec;tion .. " Applying precaution to ach;eve more health-protective decisions in this context requires a set of precautionary considerations throllghout me whole cycle from problem framing, knowledge production; idenf tficafion and characterizetion of risk, risk management, post-implementation 'follow-up, identification of knowledge gaps and research needs and back again. Such in~truments as analysis qfaltemative courses of action, expanded sc;entifiofools, incentives for research and innovation and ,enhanced public participation can in fact en.sure a moreproactive -and positive approach to health protection, while improving decision~making," Note, the particular emphasis and importance to children and future generations in items 15, 17 and 18, You were notified at the last January 26 city council meeting how vulnerable young children are vs. adults since their brains are not yet funy developed. The precautionary principle: protecting public health, the environm ent and the future of our ch ildren http;ljwww.euro.who.int/ data/assets/pdf file/0003/91173/E83079.pdf {PRECAUTIONARY PRINCIPLE GUIDELINES) THE WORLD HEALTH ORGANIZATION EUROPE Thank you for considering the information I have sent to you. Hopefully concerned citizens can work together with you to achieve a mutually accepted solution to the grave concerns Carlsbad citizens have on SG wireless-deployment. Time is of the essence:, however, as SG/Smart Cell towers and antennas have already beeninstalled and I assume are continuing to be deployed with no consideration being given to the negative impacts, to citizens' health and safety. The time tq act on this is here and now to avoid unnecessary harm to citizens and potential liability to Carlsbad for costs associated with such harm and other previously noted hazards of SG/Smart Cell"towers and antenna installations. l'vlay ! suggest respectfurly that emergency actions should be takento avoid a breach of oath so. that Carlsbad officials tan demonstrate thejr primary duty to protect citizens! nealth anp ~afety. To t hat end I would appreciate receiving an acknowledgem~nt from you o.n what yout recommended actio'ns would be to resolve cifrzens' concerns and the time frame involved for such actions. Please feei free t_o contact me at ~my time. Stncerely, lr~ne Tsutsui Ph 760-602-0839 cc: City Clerk https://www.technocracy.news/telecoms-face~major-global-resistance-t o~sg-rollout/ www.bioinitlative.org (peer reviewed scie ntists re.ports) June 23, 2021 5 Item #1 Page 24 of 38 Dec. 14, 2021 Item #16 Page 53 of 252 Telecoms Face Major Global Resistance To 5G Rollout 196 190 lawsuit Ir:regulators vs. FCC fllleges theft and redirection of estimated $1 trillion in funds by the US telecom industry and FCC to enable 50 rollout. America's households USA14 and businesses have been charged at least December nine times for broadband/fiber optic services,. including the wiring of s.chools, libraries, and ho~pitals-about $4000- $7000 per household, and the total is way over½ trillion·ctollars by_2016. (Book) 100 Italian municipalities officially stop It:ilylO dcnsificd 4G/5G by adopting the December precautionary principle according to article 32 of the Italian constitution and moratoria. (see other countries protesting 50 including France, UK, Ireland, Germany, Switzerland, Netherlands, Australia, Belgium, Canada and Russia). 2018-05-02 Doctors in Europe ask for Precautionary Principle re. 5G -> moratorium Doctors ask for a moratorium on implementing 5G technology due to health effects and argue for the Precautionary Principle to be used as a guide. Industry should have to prove 5G is safe -we should not have to prove it isn't: · · http://w,nv.isde.org/5G appeal.pdf Scientists and Docto rs Demand Moratorium on SG https://www.saferemr.com/2017/09/5G~moratoriui1112.html Sep 5) 2019 (updated Sep 17, 2019) As oftoday, 253 sci.~ntists and doctors from 42 nations have signed the The SG Appeal which calls for a moratoriunt on the deployment o.f SG, the fifth generation of cellular technology. CAUTION: Do not open attachments or click on Jinks unless.you recognize the sender and know the content is safe. CAUTION: Do not open ,1ftachments or click on links unless you recognize the sender and know the content is safe. CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe: June 23, 2021 6 Item #1 Page 25 of 38 Dec. 14, 2021 Item #16 Page 54 of 252 Putting the Cart Before the H o rse - The FCC's 115G First, Safety Second" Policy BY: ALBERT CATALANO, Coun,..,el, ERIC (,"OTTING; Partner, and TIMOTHY D.OUGHTY., Associate~ Keifer and Heckman, I.LP. Washington D.C. . ,, . ~ '.:.t.2.¥1i&i/m;_:i;jj,, .. . ,>-,~-•• \:,j'' :/, In September 2018, the Fe~eral Comnmrucations Commission {"'FCC" or ''Com- mission"~ r.ele~sed a,Dedaratocy Ru~ ,vith the goal of. atc.~erating the deploy- ment of :, G wu:eless broadband servx:es across. the country ( Small .Cell Order" or "Order").1 The Commission sees its action as needed so that the-U.S. "wins the global race to SG. "2 The wireless industry promises that with fifth gqnernticin· wirele;::s net- work technology-or 5G a~ itis more commonly knQwn ·~ greater ·wireless speeds and lower larencywill lead to innovation and µ$es such as augmented and virtual reality, the Internet of Things, snwrt homes, smart c;lties _and autonomous ,cars. However, in order to win <'the 5G race,'' hundreds of thousands of small cell transmitters must~ deployed on a nati~nal scale artd m den·sely populated areas. l11e FCC's carrier-centric Order has and safety. had selieral controversial effects on local Montgomery County7 Maryland ap- jurisdictions: (i) limiting state and local pealed the Small Cell Order based on the regulatory authority over wirele,ss infra-RF issue and its case has been consolidated structure deployment; (ii) mandating that in the United States Court of App·eals for fees for carrier use of public rights-of-way the Ninth Circuit with numemus appeals ("ROW") and facilities i.vithin the ROW challenging other parts of the same order.. be. limited to costs; and (iii) rushing the Specifically, Montgomery County is asking deployment of huridreds of thousand~ of the Ninth Circuit to dete1"mine \vhether the 5G transmitters. in.to residential areas and FCC violated the National Em,ironmental other public sp'ace.c; without ever consid-Policy Act and theAdtninistrative Ptoce- ering if the. Commission's decades-old dure Act by failing to condrict an en:viron- Radioftequency ("RF"} safety standards mental analysis of the,RF standards and tema in sufficient td protect public hdth potential 5G health risks, or explain.why it did not conside_r whether its own existing RF standards will be protective of human health in a new 5G wodd. The FCC'S: RF Exposure Rules The FCC has an obligation to evaluate the risks of human exposure to Rf. e.qergy under various statutory and regulatory provisions, indudi:og the Nationat tuvimnqiental Pol- icy Act of 1969 {."NEPA"), which requires Feder<1l agencies to assess the effects of their actions op. the quality of the human environ- ment. 3The Commission has long recog- nized its tesgons~bilii;y to evaluate whether .fCC-regulated RF transmitters and faci.lides could harµi the public health.4 .In 1985, the Commission adopted a 1982 American National Standards fnstitute ("ANSI") stat1dard for RF radiation omhe envirbmnent.S The ANSI standard·was fairly basic and only contained one set of exposure limits. In l992, ANSI replaced .its 1982 standard and set but exposure criteria for "controlled environments" (like indus- trial locations only aq:.essible to employees and contractors) and "tmcontmlled environ- ments" (typically accessible by the general public).6 A year later, in 1993, the FCC initiated a rulemaking proceeding to. update its ru, exposure sta11.dards ba.'!ed on the 1992 At"l'SI standard. 7 In enacting the Telecommunications Act of 1996 ("Act'~), Cong;:ess required the FCC to complete its·on-goingRF prnceeding arid adopt new niles),o TheAct·also preempted State and local governments from regu- lating ~':t,e1:sonal wireless service" facilities based 611 the effects. of RF emissions if those facilities comply with the Commission's RF regulations.9 · Based on sciei1tific knowledge ar che time, the rules adopted by the Commission in 1996 were designed to protect only against the therrnalcffocts of RF exposure -that is, the excessive heating of biological tissue as a result of exposure to RF energy. The rules did not establish exposure lnnits 14 l Municipal Lavvyer Excerpted from Municipal Lai~ei-: The Joumalof Local Government,La'w September/October 2019 June 23, 2021 Item #1 Page 26 of 38 Dec. 14, 2021 Item #16 Page 55 of 252 based on potential non-thermal effects., such as cancer, neurological impacts, and · immune system deficiencics.1° Also, when these rules were adopted nearly 23 years ago, the typical h~ht for free standing wireless base statioi;i towers was between 50 and 200 feet ahove ground.11 Often these towers were in locations along highways and far from residential or commercial areas. In con- trast to the longer wavelengths of <=arlier technologies which allowed cell towers RF Exp.o sure Research Much research has occurred sin.ce the FCC adopted its existing RF rules back in J996. Since that time there have been many studies of various non~thermal impacts of RF radiation. These studies have examined a number of RF-relat-- ed risk.s, such as carcinogenkity; DNA damage and genotoxicity, reproductive impacts (e.g., low sperm counts), and neurologic effects {e.g., behavioral issues in children).14 · to be spaced miles_ apart, the 5G wireless transmitters covered by the FCC's Order. will reiy on higher frequency milli..tneter wavelengths t.11at car.ry massive amounts of information only short distances. This research and the associated concerns with noJ1,0thermal irnpact-s is world-wide. In 2015, over 200 scientists · • from 42 countries, induding the United States, sent a letter to the United :l>Tations : and World Health Organization stating As a result; small cellpoles (sud1 as streetlights and lamp posts) ,vil.l have 5G transmitters that are less than 50 ft. off the ground and "-viU be located only a few hundred feet or less apart in tights-of- way like sidewalks and allqways, only yards from homes and businesses. Yet~ despite this vastly different e.11vironment for 5G, in its Order the FCC summarily dismissed the reque..-.ts of Montgom,ery County and others to reevaluate the Commission's RF rules, instead leaving standards of over 20 years in place with- out any environmental evaluation.: The Montgomery County, Maryland Appeal As noted1 under the Act, state and local governments have no authorit:yto :r:egulate potential health impacts of RF emissions from wireless transmitters provided thar those installations comply ·with federal safety standards. {nstead, the respon~ibil- it:y to protect the ·pubuc from dangerous RF levels-lies with the FCC12 Given that the FCC ha..~ not updated its RF exposure standards since l996, and that an accelerated 5G deployrttent on a national scale will involve hundred~ of thousands ·of s.rnall c.ell transmitters in de11sely populated areas, Montgomery · County appealed theSm.-.11 Cell Order and argues that the FCC had a legal duty under NEPA and the.APA to _reevaluate it<i RF standards before taking forther action nn the nationwide implementation of small cdk Montgomery County note<: that this dui:y is particularly relevant in light of recent research on the heal th risks that potentially could .be associated with 5 G deployment. 13 June 23, 2021 that." [b]ascd upon peer-teviewed, pub- lished research, we l;tave serious concerns regarding the ubiquitous and increasing exposure to EMF generated by electric and wireless devices," including cell tow- ers. Listed RF effects include "cancer ris~, cellular stress, increase in-harmful free radicals, genetic damages, structural and functional changes of the repro- ductive system, le1:1rning and memory deficits, r andl neurological disorde:rs}'15 In 2017, se\·eral hundred ex-perts from the United States and around the world sent a letter to the European. U11ioix requesting a moratorium on 5G tech- nology until the "potential hazards for _ human health and the envir_onment have been fully investigated by scicntistslnde• pendent from industry." They note that 5G will contribute to cumulative RF exposures -i.e., an "increns.e[d]-expo- sure to radiofrequern:.y electromagnetic fields (RF-EMF) 011 top of the 2G~ 3G, 4G, Wi-Pl, etc. for releconwiunications alrea.dy i.o pfoce.''i6-• In light of this research, some scien- tists and academics \V"a[Il that the FCC's curreht.RF 'standards, which arc limit- ed to addressing thermal effects, may _not be ptotective of human heaith. By; way of example, the Biolnitiative 2012 report (induding·updates through 2017) revie,vs over 1,800 studies-showing various adve.r,se health impacts from RF and, based on that research, maintains that the current FCC standards do not adequately protect the publk health.17 As a resuli:, they recommend further research be conducted on non-thermal effects before SG is widely ayailable. FCC Review ofRF Standards Though the Commission has not up- dated its RF exposure standards since 19'.96, it did initiate a review of those stindards :in 2013; seeking comments to determine whether its RF expo- sure limits and policies needed to he reassessed.1s The FCC cited to both its NEPA obligations and other statutoty provisions as justifying the review.19 The Commission suhseq.uently received over 900 submissions in its 2013 docket, many of them focusing on non-thermal risks posed by RF radiation.20 However, its review of the RF standards stalled and to date . the Commission has not made, any determinations in this proceeding (or any o.ther p.roceeding) oh whether the cui-rent RF standa,:ds remain protec- tive of human health or whetli.er the installation and operation of SC small cells will pose health :r:isks. zi .The FCC's Small Cell Order Prior to the release of the FCC's Small Cell Order, a number of local jurisdic- tions raised concerns about the cur.rent RF standards and their ability to pro- tect local citizens ill a 5G environment. Montgomery County repeatedly urged the FCC to reevaluate th.e standards and determine rf they remain protec- tive of human health. Representatives of the County met with Commission foadership and filed comments request- ing that the FCC delay rulema.kings aimed at speeding small cell rollouts until the.2013 RF proceedings were completed. Several other: local governments and associations, scientists, and individual citizens also requested that. the FCC complete the 2013 proceedings before expediting the rollout of SG technol- ogy and otherwise expressed concerns about the substantially out-of-date RF standards.22 In it-s Order; the Cprnmission responded to thes-e serious ;ind legitimate concerns about public health with a single terse footnote, stating "Jwle disagree" with ionceµis ra.ised about Rf emissions from 5G small cell fadlities. The FCC empha- si'.led "nothing in this Declaratory Ruling changes the applicability of the Com- mission's existing RF emissions exposure Conlhttted on page 16 " Seprember-Ocwhc,: 1019 l Vol. 60 No, 'i I 15 Item #1 Page 27 of 38 Dec. 14, 2021 Item #16 Page 56 of 252 5G Fn:st, Safety Second cont'd from page 15 rules."23 There was no discussion by the FCC of potential no:ti-.thennal RF effects or any indication when it would complete the 2013 RF proceeding. Questions to be Addressed by the Ninth Circuit TI1e ~inth Circuit will now decide wheth- er by refusing to substantiyely addres.~ RF/public health issues in the Small Cell Ordci; the FCC violated NEPA and/or the APA. Specifically, the issues hefore che Court arc: Did the FCC violate NEPA when it failed to either: (i) explain why that statute does not apply to the Otder; or· (ii) conduct an environmental.anal- ysis of the RF standards and potential 5G health risks? and Did the FCC violate the APA when it failed to either: (i} explain why it did not consider whether the 1996 RF sraadards protect against potential SC health risks; or (ii) address i;ele- vant public health and safety issues when adopting the Order?24 The FCC's NEPA Violation Under NEPA, it is the "policy of the federal government" to "assure for all Americans [a] safe [and] healthful" enriroomeJ;J.t.25 In particular, for "major Federal actions significantly affecting the quality of the human environment," the agency must prepare a "detailed stare- ment" on the "enviro1m1ental impact of the proposed ac,.tion" (called an E_nviron- mental Impact Statement or "EIS").26 At a minimum, the agency must ptepare a preliminary Envirom1iental Assessment t-o detennine whether the potential for such an impact exisrn and an EIS is therefore require.cl. v While NEPA does not impose any substantive envircnmental mandates, it does require that agencies follow certain procedures for assessing environmental impacts of their decisions. 28 Un.fortunat.ely, the FCC proceeded to implement its Small Cell Order without any environmental analysis and other- wise failed to explain how the Order is somehow exempt from this requirement. June 23, 2021 Imtead, the FCC responded to comments urging it to complete its 2013 review of the RF standards before finalizing the Ord.er by simply staring that it "disagreed" with comrnenters who opposed the .ruling on the basis of concerns regarding RF emissions. There was zero analysis•by the Commission as to whether the cui:rent RF standards -enacted nearly 23 years ago -will be protective of human health in a new 5G environment, The FCC's decision to move forward with 5 G infrastructure without considering the health effects of RF vrolates ::NEPA. The Order itself is a "major federal action," within the scope ofl\nPA, because it involves "[a]doption of official policy, such as rules, regulations and niterpretarions" pursuant to the APA. 29 In the FCC's own words, the Order was an exercise of Com- mission a uthorir-1 to "'i.~ue interpretations of the statutory language and to adopt implementing regulations that clarify and specify the scope and effect of the Act."Y-1 Moreove,; the Order is a "major feder- pose a sub,rantial risk of non-thermal effects, the FCC cannot ignore its NEPA obligations to review and ana)y,.e this critical issue. NEPA is designed to force agencies, like the FCC to confront head-on, rather than ignore, these uncerrainties.3' What is partirularly troubling with the FCC's refusal to review its RF standards is that State and local governments are completely dependent on the FCC for the protection of their citizens from the dangers of RF emissions. 1n the 1996 Acr., Congress directed the FCC to pr.omulgate RF standards that are protective of human health, while preempting state and local governments from regulation in thii:; area.37 Jn fact, the FCC has stated repeatedly that only it has the authority under NEPA and other statutory provisions to set and main- tain safe RF n-po~ure lcvds.38 Yet despite this mandated obligation to protect the public health, the FCC ignored irs NEPA obligations in the rush for nationwide migration to SG. al action" because it is an activity that is The FCC's APA Violation "potentially subj~t to federal coutrol and Similar to the FCC's shortcomings W1clcr responsibility" or is "regulated" by a Fed-NEPA, the FCC also v:iolated the APA . eral agency.3C·Tuere,is no question that the because it failed to consider whether the Small Cell Order regulates activities that · current RF standardi; will fully protect are subject to Federal controi and respon-the health and safety of citizens living and sib:ility -it specifically establishes rules that working directly adjacent to 5G small cells municipalities must follow when reviewing and did not explain why it ignored this carrier applications for the installation of relevant factor. Under the APA, courts small cells and the provision of 5G services will strike down agency action as arbitra(y in public rights-of-way.32 and capricious if the agency has, among In addition, the Small Cell Order "may other things, "entirely failed to consider an significantly affect the qu11lity of the human important aspect of the problen1."3~ envirpnment/133 SG deployments and op-The FCC itself has recogni7.ed that it has a crations will see the densification of trans· . continuing obligation to revise the RF stan- mitters in neighborhoods. and public ~1Jaces dards as research on pote1itial RF health in close proximity to.households .and impacts and wireless technology evolvcs.4~ businesses. Commenters noted that recent In the lase 23 years, sigl'1ificant ·research has studies,conductedafter the 1996 RF sta11-been conducted and scientists and academ- dards were adopted, have raised concerns ics have warned that the fCC's current RF about pubhc health and safety, including standards may not be protective of human potential RF-related risks associated with health. ft goes without ~-aying, moreover, the anticipated use of 5G urillimeter waves. that wireless technology has evolved. ):o scientific certainty or consensus, When the fCC's current RF i:;tandards however, is required to constitute a signifi-were adopted in 1996 the first ever flip awt effecr. 34 The point of 1\1EJ>A is not for phone had only been on the market a agencie.~ to make the determination that few months, which boasted cutting-edge significant effects on the human environ-fearurcs like the ability to receive SMS text ment wiU occur, but rather to "insur[e) that messages and a vibrate function in place available data is gathered and analyzed pti-of a .ring tone. 5G technology will look or to the implementation of the proposed completely different. action."35 Therefore, .even if studies haYe Whether the 1996 RF standards remain not conclusively shown that RF emissions protective of human health, including .. my Item #1 Page 28 of 38 Dec. 14, 2021 Item #16 Page 57 of 252 potential non-thermal risks, is a relevant factor that the FCC should have consid- ered when promulgating the Order. By the Commission's O'-"il admission, the Order will hasten the deployment of 5G facilities and the provision of services.41 This means more small cells, in n:iore lo.cations, and sooner than later. Beqiuse RF safety issues were implicated by rhe Small Cell Order it was incumbent on the FC'.,C to determine whether the Order would increase harmful RF exposures in residential and public areas, particularly in light of the fact that countless 5 G antennas .spaced on]y about hun~red feet apatt v,ill be placed in close proximity to homes and businesses.42 The Rest of the Story - The :FCC Finally Takes Action . Just as this article was going to publica- tion -and with the Montgomery wm1ty lawsuit still pending -the FCC announced that FCC Chairman Ajit Pai was circulat- ing a :proposal to rellow Commissioners that would mainrain tbe Commission's RF exposure limits. According to the press release, the item would resolve the 2013 Notice oflnquiry that sought public input -0n whether to strengthen or relax existing RF exposure limits. In addition, the item wotild establish a unif01m set of compliance guidelines -regardless of the type of service or technology involved -for determining how entities will assess their compliance with the RF standards. Finally, the item would seek comment on estab- lishing a rule for determining compliance with the RF exposure st;mdard for devjces operating at higher frequencies. Conclusion Regardless of any potential benefits that deployment of 5G infrastructure will bring to improve broadband availability across. the country, the FCC -the sole authority for health and safety concerns related to RF -should have completed th.e review of its RF standards before opening the floodgates fot the deploy- ment of hundreds of thousands of small cell transmitters. At a bare minimum, the Commission should have explained its decision to summarily reject the comments submitted by Montgomery County, other local governments and associations, scientists, and individual citizens raising RF concerns. June 23, 2021 Albert Catalano. Counsel at Keller and ::: ~ Heckman !lP. has 30 yeais of experience in .J ._7, telecommunications reguf.my, legislative, a • itigation and tran:saciional matters. His practice focuses on broadband and wireless communications. and on 56/small cells and the use of municipal infrastructure. Prior to entering private practice. Mr. Catalano served as legal counsel with the Federal Communications Commission on wireless commu- nications. infurmation transfer, technology developments, licensing issues and international satellite matters. Em: Gotting is a partner in Keller and Heckman UP's litigation and environmental practice groups spetia&ting in complex civil and appellate matters. with a locus on toxi& tort, environmental, product liability, and corporate litiga- tion. He is a fOfJ!ler trial at1Dmey atd1e U.S. Department of Justice, Civil Division, Environmental Torts Sectiori'. and his experience includes clilSS actions, mass.tort litigation, and agerley enforcement proceedings. He currently serves as lead counsel in Montgomery Countyv. FCC. No. 19-70147 (9th Cir.) challenging the FCC' s Small Cell Order based on potential health and environmental impacts of 6G radiotrequency emissions. ,-.... T unothy Doughty is an associate in KeDer ! ~ ..J and Hedanan UP' s telecollllllWlications ~ '·: J praciire grnup wlmre he focuses on assisting ...t,,. "llfhd. r.orporam ciiaits and trade associations w'fth various legal and regulatory matters before 111e Federal CommUllications Commission (FCC), the Federal Aviation Ad- ministration (FAA), courtsand state agencies: Mr. Doughty is a graduate of the Catholic University of America school of law and is admitted to practice in Maryland, Colorado. and the District of Columbia. to Z:00 GRz,ANSI, NewYork,NY 6. See FCC, In the Matter of Guidelines for Evaluating the bzvironmental Effects of Ra- di.ofrequency Radiation, Report and Order, 1996 FCC LEXIS 4081, at *7 (Aug. 1, 1996). 7; Td.at *8. 8. Pub. L No. 104•104, 110 Sta.t. 56 (1996). 9. 47 U.S.C. § 332(c)(7)(B)(iv). 10. FCC, OET Bulletin 56, at 8 (August 1999). 11. id. at 20. 12. Montgomery C'.ounty, Maryland's Open- ing Brief, at 1 (19-70147) (9th Gt) {"Brief"), https://www.beyondtelecomlawblog.com/5g- small-cclls•2ttd-rf-health-concerns/. 13. Id. at 2. 14. ld. at 12-15. 15.Jd.atl.5. .16. Id. at 1S-16. 17. Bio Initiative 2012 -A Ra#on:ale for Biologically-based Exposure Standards for Low-Tntensiiy Electromagnetic Radiation (2017), https://bioiniriative.org/. 18. FCC, In the Matter of Reassessment of Federal Communications Commission Ra- diof requenc}' Exposure Limits and Policies, First Report and Order; Notice of Ptoposed Rulemaking and Notice of Inquiry, 2013 FCC LEXIS 1257 (Mar. 27, 2013). 18 Brief at 19-20. 19. Id. at 22. 20.Id. 21. ld. at 24-26. 23. Small Cell Order at n.72. 24. Brief at 4-5. Notes 25. 42 U.S.C'~ §§ 4321, 4331. 1. Acc~ler_ating Wireless BtoadbandDeploy-26. 42 U.S.C. § 4332. ment by Removing Barriers to lnfrastruc,-27. 40 C.F.R. § 1508.9. ture Tnvestment, Declaratory Ruling and 28. Am. Bird Conservaoc.-y, Inc. v. FCC, 516 Third R~pon ;;1nd Ordei; FCC 18-133, WT R3d 1027, 1032 (D.C. Ci.J: 2008). DocketNo.17-79, WCDocketNo.17~84 29.40 C.F.R. § 1508.18(b)(1). (Sept. 27, 2018}. 30. Small Cell Order at CJ( 21. 2. Id. at par 1. 33. 40 C.ER. § 1508.18. 3. National Environmental Policy Act of 32. Brief at 40. 1969, 42 U.S.C. § 4321, et seq.; Small C~ll 33. 42 U.S.C. § 4332. Order at n. 72. 34. Am. Bird Conservam:J~ Inc., 516 F.3d at 4. See,, e.g., FCC, In the Matter of Guide-1033. lines for Evaluating the F.nvironmenta! Ef-35. Found. for North Am. Wild Sheep v. fects of Radiofrequen,cy Radiation, Report United States Dept. of Agric., 681 E2d · 1172, and Order, 1996FCC LEXIS 4081, at *4 1179 (9th Cfr.1982). (Aug.1, 1996). 36.Briefat46. 5. See Report and Order, GEN Docket No. .17. See 47U.S.C. § 332(c)(7)(B)(iv}. 79-144, 100 FCC 2d 543 (1985): Mcm-38. Briefat37-38. orandum Opinion and Order; 58 RR 2d 39. Moior Vehicle Mfrs. Ass'n v. State Farm 1128 (1985l;seealso·ANSI C95.l-1982, Mut. Auto. Ins. Co., 463 U.S. 29,43 (1983). American National Swulard Safety Levels 40. Brief at 11-12, 19, 52. with Respect to Human Exposure to Radio 41. Id. at 53. Frequency Ekctromagneti.c Fields, 300 kHz 42. Id. at 54. M.. · Septemht:r Ou obc1 20! 9 I Vol 60 No 3 I 17 Item #1 Page 29 of 38 Dec. 14, 2021 Item #16 Page 58 of 252 Sent To: Subject .... _,,_ '"'----• •V-••-·.;i,i--.::z.•---. -·-.4 Tuesday, January 28, 2.020 11:48 AM 'irenegdnight@earthlink.nt' DOCKET #S LAWSUITS VS. FCC yoffugeoeOregonetalvFCCetalDock etNo19 703449thCirFeb082019Court? 15 78065073 NATIONAL LEAGUE OF CITIES Gail A. Karish Joseph Leonard Van Eaton Best Best & Krieger LLP Best Best & Krieger LLP 300 South Grand Avenue 2000 Pennsylvania Ave NW. Los Angeles, CA 90071 Washington, DC 20006 [COR LD NTC Retained] [COR LO NTC Retained] BL-145 Sep24,2019 Reg.uest Filed (ECF) lntervenors City of Arcadia, City of Bellevue, City of Burien, City of Bur~ing~me, City of Gig Harbor, City of Issaquah, City of Kirkland, City of las Vegas, City 6f Los Angetes, City of Monterey, City of Ontario, City of Piedmont, Oty of Portland, City of •San Jose, City of 'Shafter, City of Yuma, County of Los Angeles, Culver City and Town of Fairfax in 19-70143, lntervenors City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, City of Gig Harbor, City of Issaquah, City of Kirkland, City of las Vegas, City ~f Los Angeles, City of Monterey, City of New York, Gty of Ontario, City of Piedmont, Crty of Portland, City of San Jacinto, City of San Jose, City ofShafter, City of Yuma, County of Los Angeles, Culver City and Town of Fairfax in 19-70124, lntervenors City of Arcadia, City Qf Belfevue, City of Burien, City of Burlingame, Qty of Gig Harbor, City of Issaquah, City'of Kirkland, City of Las Vegas~ City of Los Angeles, City of Monterey, City of Ontario, City of Piedmont, City of Portland, City of San Jacinto, City .of San Jose, City of Shafter, City of Yuma, County of Los Angeles, Culver City and Town pf Fairfax in 19-70125, 19-70136, Petitioners City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, City of Gig Harbor, City of Issaquah, City of Kirkland, City of Las Vegas, City of Los Angeles, City of Monterey, City of Ontario, City of Piedmont, City of Portland, City of San Jacinto, City of San Jose, City of Shafter, City of Yuma, County of Los Angeles, Culver City and Town of Fairfax in 19.70144, 19-70146, lntervenors City of Albuquerque,. New Mexico, City of Arcaaia, California, City of Baltimore, Maryland, City of Bellev:ue, Washington, City of Brookhaven, Georgia, City of Burfen, wa·shington, City of Burlingamer, California, City of Culver Cfty, California, City of Dubuque, Iowa, Ci.ty of Emeryville,,Califomia, City of Gig Harbor, Washiington, City of Issaquah, Washingtoh, City of K,irkland, Washington, City of La Vista, Nebraska, City of.Las Vegas, Nevada, City of Los Angeles, California, City of Medina,. Washington, City of Monterey, California, City of Ontario, California, City of Papillion, Nebraska, City of Piedmont, California, City of Plano, Texas, City of Portland, O.regon, City of Rockville, Maryland, City of San Bruno, California, City of San Jacinto, Cqlifornia, City of San Jose, California, City of Santa Monica, California, City of Shafter, California, City of SugarJand, Texas, City of Yuma, Arizona, Couhty of Los Angeles, California, League of Nebraska Municip1:1fltles, Michigan Municipal League, National league of Cities, Town of Fairfax, california, Town of Hillsborough, California and Town of Ocean City, Maryland in 19~70326) lntervenors City of Albuquerque, New Mexico, City of Baltimore, Maryland, City of Brookhaven, Georgia, City of Dubuque, Iowa, City ofEmery,ville, California, City of La Vista, Nebraska, City of Medina, 1 June 23, 2021 Item #1 Page 30 of 38 Dec. 14, 2021 Item #16 Page 59 of 252 BL-161 Jan 14; 2020 Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San Bruno, California-, City of Santa Monica,. ca!ifomia, City of Sugarland, Texas, League of Nebraska Municil}alitiesf Michigan Municipal League, National League of Oties, Town of Htllsbcirough, California and Town of Ocean City, Mary!a nd in 19-70339, Petitioners Bloomfield Township, Michigan, City of Ann Arbor, Michigan, City of Atlanta; Georgia, City· of Aust in, Texas, City of Boston, Massachusetts, City of Chicago, I Iii nois, City of Colle~ Park, Maryland, City of Dallas, Texas, City of Gaithersburg, Maryland, City of Lincoln, Nebraska, City of Myrtle Beath, South Carolina, City of Omaha, Nebraska, City of Philadelphia, Pennsylvania, City of Rye, NeW York, City of Scarsdale, New York, City of Seat Pleasant, Maryland, City of T<1koma Park, Maryland, Clark County, Nevada, County of Anne .Arundel, . . Maryland, District of Columbia, Howard Cou.!'lty;Maryland, Meridian Township, rylichigan, Michigan Coalition fo Protect Public Rights-of-Way, Michigan Townships Associafo:m, Montgomery County, Maryland, Texas Coaliti"ori pf Cities for Utility Issues and tntervenors Crty of Albuquerque, New Mexico, City of Baltimore, Maryland, City of Brookhaven, Georgia, City of D1Jbuque, Iowa, Oty of Emeryville, California, City of La Vista, Nebraska, City of Medina, Washingt()n; City of Papillioh, Nebraska, City of Plano; Tex~s, City of Rockville, Maryland; City of San Bruno, .California, City of Santa Monica~ C:1lrromia~ City of Sugarland, Texas, league of Nebraska Municipalities, Michigan Municlpalleag_ue, National Leagve of Cities, Tt;>wn of Hillsborough, California and Town of Ocean City, Maryland in ·19-70341, 19- 70344 Joint.Motion. for miscellaneous relief [Motion for Expedited Oral Argument and to Separate Arguments]. Oate of service: 09/24/2019. [11442651} [19-70123, 19-70124, 19-- 70125, 19-70136, 19-70144, 19~70145, 19--70146, 19-70147, 19-70326, 19-703.39, 19- 70341, 19-70344] (Van E.iton, Jos~p Reguest Filed (ECF) Acknowledgrneatof n,earing notice by Attpmey Mr. Joseph Leonard. Van E:ato11, Esquire for lnfervenors City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, City of Gig H~rbor, City of fssaquah, City of kirkland1 City of Las Vegas, City of Los Angeles, City,of Monterey-, City of Ontario, City of Piedmont, City. of Portland, City ofsan Jose, City of Shafter,. City of Yuma, County oflos Angeles, Culver City and Town of Fairfax in 19-70123, Attorney Mr. Joseph LeonardVan Eaton, !:squire for lnterv.enors City of Arcadia; City of Bellevue, City of Burien, City ofBurlingame, City of Gig Harbor, City of Issaquah, City of Kirkland, City of Las Vegas, tity of Los Angeles, City of Monterey~ City of Ontario, City of Piedmont; -Oty of Portland, City of San Jacinto, City of San Jose, City of Shafter, City of Yuma, County-Of Los Angeles, Culver City and Town of Fairfax in 19-70124, 19-70125, 19a0136,. Attornef Mr. Jo~_eph ~onard Varr Eaton, Esquire for Petitioners City of San Jose, City of Arcadia, City of Bellevue, City of Burien, City of Burlingame, Culver City, Town of Fairfax, City of Gig Harbor, City of fssaquah, City of Kirkland, City of las Vegas, City of Los AngE!les, County of Los Angeles, City of Monterey,; Otyofbntario, City of Piedmont~ c;ify of Portland,. Oty ot:San Jacinto,,City of Shafter.and City of Yuma ih 19·70144, 19~701~6, Attorney Mr., Joseph LeQnard Van E;aton; Esquire for Intervenors City of Baltimore, Maryland, Michigan Municipal Leag!le, City of Albuquerque, New Mexico, N.atio_nal League of Cit{es, Town of Ocean City, Maryland,, City of Brookhaven, Georgia-l City of Dubuque, Iowa, City of Emeryville, California, City of La Vista, Nebraska, City of Medina, Washin:gto11, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San-Bruno, California, City of Santa Monica, CalJfornia, City of Sugarfand, Texas. League of Nebraska Municipalities, Town of Hillsborc,ugh, California, City of Arcadia, California, City-of Bellevue, Washington, City of Burien, Washington, City of Bl)r/ingamer, California, City of Culver City , Califo~nia, City of Gig Harbor, Washiingtc;n:i, City of Issaquah, Washington, City of Kirkland~ Washington, City of Las Vegas1 Nevada, City of Los Angeles; California, City ofMontere.y, California, City of Ontario; ta:lifornia, City of Piedmont, California, City of Portland,. Oregon, City of San Jacinto, Cafifc,mja, City·of San Jose, california, City of Shafter, C:i)ifomia, City of Yuma, Arizona, County of Los Angeles, Catffornia a.nd Town of Fairfax, California and 2 June 23, 2021 Item #1 Page 31 of 38 Dec. 14, 2021 Item #16 Page 60 of 252 ' F I , ff June 23, 2021 Attorney Mr. Joseph Leonard Van: Eaton, Esquire for lntervenors City of Baltimore, Maryland, Michigan Municipal League, City of Albuquerque, New Mexico, National league of Cities, Town of Ocean City, Marvrand, City of Brookhaven, Georgia, City of Dubuque, Iowa, City of Emeryville, California, City of la Vista, Nebraska, City of Medina, Washington, City of Papi!Jion, Nebraska, qty of P!ano, Texas, City of Rockville, Maryland, City Qf San Bruno, California, City of Santa Monica, California, City of Sugarland, Texas, league of Nebraska Municipalities, Town 9f Hillsborough, California, City.of Arcadia, Ca!iforn,ia, City of Bellevue, Washington, City of Burien, Washington, City of Burlingamer, California, City of Culver City, California, City of Gig Harbor, Washiington, City of Issaquah, Washington, City of Kirkland, Washington, City of °Las Vegas, Nevada, City of Los Angeles, CaUfornJa, City of Monterey, California, City of Ontario, California, City of Piedmont, California, City of Portland, Oregon, City of ~an Jacinto, California, City of San Jose, California, City of Shafter, California, City of Yuma, Arizona, County oflos Angeles, California and Town of Fairfaj(, California in 1~-70326, Attorney Mr. Joseph Leonard Van Eaton, Esquire for lntervenors City of Albuquerque, New Mexico, National League of Cities, City of Brookhaven, Georgia,· City of Baltimore, Maryland, City of Dubuque, Iowa, Town of Ocean City, Maryland, City of Emeryviife, California, Michigan Municipal league, rown of Hillsboro.ugh, California, City of ta Vista, Nebraska, City of Medina, Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland~ City of San Bruno, California, City of Santa Monica, California, City of Sugarland, Texas and League of Nebraska Municipalities in 19-70339, Attorney Mr. Joseph Leona.rd Van Eaton, Esquire for Petitioners City of Austin, Texas, City of Ann Arbor, Mich[gan, County of Anne Arundel, Maryland, City of A,tlanta, Georgia, City of . Boston, Mas~achusetts, City of Chicago, Illinois, Clark County, Ne~ada, City of College Park, Maryland, City of Dallas, Texas, District of Columbia, City ofGaither~burg, Maryland, Howard County, Maryland, City of Lincoln, Nebraska, Montgomery County, Maryland, City · of Myrtle Beach, .South Carolina, City of Omaha, Nebraska, 'Cit:Y of Philadelphia, Pennsylvania, Cjty of Rye, New York, City of Scc:1rsdale, Nf?W Yc;irk, City of Seat Pleasant, Maryland, City ofTakoma Park, Maryland, Texas Coalition of Cltj~s for utility Issues, Meridian Township, Michigan, Bloomfiefd Townshjp, Michigan, Michigan Townships Association, Michigan Coafition to ProtectPubtia Rights-of-Way and lntervenors City of Albuquerque, Ne~ Mexico, NationaHeague of Cities, City of Brookhaven, Georgia, City of Baltimore, Maryland, City of Dubuque, Iowa, Town of Ocean City, Maryland, City of · Emeryville, Caiifornia, Michigan Munfdpal League, Town of Hillsborough, CaJifomfcJ, City of La Vista, Nebraska, City of Medina, Washington, City of Papillion, Nebraska, City of Plano, Texas, City of Rockville, Maryland, City of San Bruno, Cal)fornia, City of Santa Monica, Californfa, City of Sugar!ai'td, Texas and league of Nebraska Municipalities and Attorney Mr. )oseph t.eonard Van E.aton, Esquire for Petitione.rs City ofAustin, Texas, City of Ann Arbor,_ Mi$:higan, County of Anne Arundel, Maryland, City of Atlanta, Georgfa, City of Boston,. Massachusetts, City of Chkago, Illinois, Clark County, Nevada, City of College Park, Maryland, City of Dallas, Texas, District of Columbia, City of Gaithersburg, l\ilar.yland, Howard County, Maryland, City of Lincoln, Nebraska, Montgomery County, Maryland; City of Myrtle Beach, South Carolina, City of Omaha, Nebraska, City of Philadelphia, Pennsylvania, Clty of Rye, New York, City of Scarsdale, New 'fork,. City of Seat Pleasant, Maryland, City ofTakoma Park~ Maryland, Texas Coalition of Cities for Utility Issues, Meridian Township, Michigan, Bloomfield Township, Michigan, Michigan Townships Association, Michigan Coalition to Protect l>ublic Rights.,of-Way and lntervenors City of Albuquerque, New Mexico, National league ofOties, City of Brookhaven, Ge?rgja, City of Baltimore, Maryland, City of Dubuque, Iowa, Town ofOcean City, Maryland, City of Emeryv[Ue, Caltfc,rnia, Michigan Muni(:ipal League, Town of Hillsborough, California, City of la Vista, Nebraska, City of Medina, Washington, City of Papillion, Nebraska, City of Plano, Texas, City Qf Rockville, Maryland, City of San Bruno1 Cafifornia, City,of Santa Monka, California, City of Sugarland, Texas and League of Nebraska Municipalities in 19~70341, 19- 3 Item #1 Page 32 of 38 Dec. 14, 2021 Item #16 Page 61 of 252 June 23, 2021 70344. Hearing ln Pasadena on 02/10/2020 at 09:00 A.M. (Courtroom: Courtroom 3). Filer sharing argument time: Yes. {Argument minutes: 24.} Special accommodations: NO. Filer admission status: I certify that I am admitted to practice before this Court. Date of service: 01/14/2020. [11561976] [19-70123, 19-70124, 19-70125, 19-70136, 19-70144, 19-70145, 19-70146, 19-70147, 19-70326, 19-70339, 19-70341, 19-70344] (Van Eaton, Joseph) Item #1 Page 33 of 38 Dec. 14, 2021 Item #16 Page 62 of 252 Hector Gomez From: Sent: Cc: Subject: --·-•Original Message•--- Council Internet Email Tuesday, February 18, 2020 9:41 AM Curtis Jackson; City Clerk FW: Sg concerns From: Stephanie Raish <stephanieraish@gmail.com> Sent : Saturday, February 15, 2020 10:43 AM To: Council Internet Email <CityCouncil@carlsbadca.gov> Subject: Sg concerns Dear Mayor Hall and City Council Members, All Receive -,\genda Item U I ~ For the Information of the: ..... c.'t{PJ1JNCIL Date.~•cA :<-.. cc i"-- CM JC_ COO ')(' DCM (3) E_ SG, the next generation of wireless technology, poses unique risks to our community ranging from scientifically- documented human health and environmental problems i.e. www.americansforresponsibletech.org/scientific-studies to property devaluation. While many legislators are under the impression that there is no legal recourse to push back against the unfettered rollout of .SG, the attached sample of 5.G legislative code is evidence that there are in fact many ways to effectively delay, or in some.cases, stop 5G antennas from being installed nea_r residences, day care centers, schools, and other sensitive areas. Withthat said, I respectfully µrge you to adopt the sample code foLJnd b.elow, in part or in full, to impose restrictions on small cell deployments in Carlsbad neighborhoods." s·incerely, https://8a6b8cd0-359b-4b1b-b042-cdb0cdb8be26.filesusr.com/ugd/2cea04_66c5cc09a31045858fa03e31428054b8.pdf Stephanie CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 1 June 23, 2021 Item #1 Page 34 of 38 Dec. 14, 2021 Item #16 Page 63 of 252 Hector Gomez From: Sent To: Council Internet Email Monday, February 10, 2020 9:25 AM City Clerk Curtis Jackson Cc Subject: FW: Portland, Oregon Mayor Rallies Support for $G Lawsuit with FCC From: Karen Rich <Dakini22459@protonmail.com> Sent: Monday, February 10, 2020 8:58 AM To: Matthew Hall <Matt.Hall@carlsbadca.gov> All Receive -Agenda. Item # J :;i for the tnformotion of the: cni COUNCIL Date,2,J>O \)i CA X_ cc ~ CM _ X coo )( DSM (3) )( Cc: Priya Bhat-Patel <Priya.Bhat-Patel@CarlsbadCA.gov>; Cori Schumacher <Cori.Schumacher~Carlsbad<;A.gov>; l<eith Blackburn <Keith.Blackburn@carlsbadca.gov>i Celia Brewer <Celia.Brewer@carlsbatlca.gov>; Scott Chadwick <Scott.Chadwick@cartsbadca.gov>; Council Internet Email <CityCouncil@carlsbadta.gov> Subject: Portland, Oregon Mayor Ratlies Support for 56 lawsuit with FCC Dear Mayor Hal!, Here ·is an attlc;le describing the action Portia nd Oregon's Mayor Ted Wheeler is taking to resist the Federal Communications Comw1isSion (in con~piracy with the Telecommunicat!ons Industry) illegal and uncon.stitutional mandates regarding 4G-SG/'$mall Cell' infrastructure. We must stop the land,.power and money graba11d reclaim local control over local assets . . You and the Carlsbad City Council have the legal authority resist the FCC. DanviHe and Davis, CA are tal<ing similar action. "I've sa!~: It before and I'll say it ag~in today: the FCC's attempt to assert national controi over local infrastructure traces is a misguided invasion of tocat authority and contrary. to the law," Wheeler said. Sincerely, Karen Rich, Constituent Carlsbad CA 92009 CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. June 23, 2021 1 Item #1 · Page 35 of 38 Dec. 14, 2021 Item #16 Page 64 of 252 Hector Gomez From: Sent: To: Subject Attachments: Council Internet Email Friday, February 7, 2020 4:06 PM City Clerk FW: SG Scare Carlsbad SG.pdf From: Michael McGrady <mcgradym@roadrunner.com> Sent: Friday, February 7, 2020 8:12 AM To: Council Internet Email <CityCouncil@carlsbadca.gov> Subject: FW: 5G Scare Since Mr. Blackburn responded that you have been hearing from people already, I thought we would reach out to the entire council on this subject. We received the attached flyer"which is saturated with falsehoods, mischaracterizations, inaccuracies and fear- mongering. As we said below, this movement is the is the technological equivalent of the anti-vaxer movement. There is an astonishing amount of credible literature admonishing this movement. We shared but one, a well written article by the New York Times: The SG Health Hazard That Isn't How one scientist and his inaccurate chart led to unwarranted fears of wireless technology. https://www.nytimes.com/2019 /07 /16/science/Sg•cetlp hones-wireless-cancer. html Our society grants liberty to speak out against government, including even the ludicrous suggestion that the City Council (having been bought off) has joined forces to give the Carlsbad citjzenry brain cancer. However, it does not give them the right to claim to speak for all citizens. It is with heartfelt ·pleading from those of us too busy to fight against such nonsense (including anti-vaxer, flat-earth society, fluoride in the water, etc.), that you not think them the majority. People like the two of us and our fellow citizenry can, at times, become a mob, with all the ingra.ined aggressiveness, or fear-induced panic, or self-seeking avarice that our human nature can produce. However, we are a democratic republic; knowing our self-seeking nature, we have granted limited sovereignty to people who by intelligence, reason and contemplation will act in our best interest, even if it appears they stand against the mob. Socrates would not put ideas upon paper as it would destroy memory. In the 16th century Conrad Gessner didn't like the printing press because it would lead to information overload. In 1825 the mob widely feared train travel because at the incredible speed of 30 miles per hour, you would endure a gruesome death of the body melting. The first telephones at minimum would give you deadly shocks and at maximum they were conduits for evil spirits-(okay, they were right about robo-calts). In 1936 radio was to be announced as the scourge of the written page and was strongly protested. The first wi-fi roll-outs included the same deathly threats as today's missive. Though you have little control in the first place regarding this matter, yet still be patient, be engaging with tflem, ·but please don't amplify their voice, their cause or think them the majority. Laura and Michael McGrady 2741 Berkeley Ave Carlsbad, CA 92010 June 23, 2021 1 Item #1 Page 36 of 38 Dec. 14, 2021 Item #16 Page 65 of 252 Disclaimer: This message and any files it may contain are confidential and/or privileged information. It is intended solely for the use of the individual or entity to whom they are addressed. If you are not the intended recipient, you are here.by notified that any use or dissemination of this communication is strl'ctly prohibited. If you have received this email in error, please notify us immediatdy, then delete this email From: Keith Blackburn <l<eith.Blackburn@carlsbadca.gov> Sent: Thursday, February 6, 2020 8:56 PM To: M ichael McGrady <mcgradym@roadrunner.com> Subject: Re: SG Scare Dear Laura and Michael, Thank you for taking the time to send ~he email. I have heard a lot of people blame Carlsbad for allowing SG. First point, we have not voted on the subject. Second point, we have almost no control because it is regulated by the federal communications commission. I am going to share your email with our city manager so our staff can supply you with up- to~date information as to what is going on in Carlsbad. Sincerely, Keith Blackburn Sent from my iPhone On Feb 6, 2020, at 7:01 PM, Michael McGrady <mcgradym@roadrunner.com> wrote: Mr. Blackburn: I just had delivered to my door a flyer decrying the city councif s malicious intent to roll out a SG network in Carlsbad. This is the technological protest equivalent of anti~vaxers. The New York Times more than most othel· media outlets would never miss an opportunity to eviscerate government and corporate America. This is their expose from last July: The 5G Health Hazard That Isn't How one scientist and his inaccurate chart !ed to unwarranted fears of wireless technqlbgy. https://www .nyti mes.tom/2019/07 /16/science/Sg-cellpho nes-wi reless-cancer.html Just because some of us have jobs and no time fo[ this nonsense, please do not assume most of us .share the same voice as those involved in thls uprising. Thai)ks for your time. Laura and Michael McGrady 2741 Berkeley Ave Carlsbad, CA 92010 Disclaimer: This message and anyfiles it may coniain are confidential and/or privileged information. It is intended'solely for the use 9/ the individual or entity to whom they are addressed. tf you are not the intended recipient, you are hereby notified that any use or dis~emination of this communication is strictly prohibited. If you have received this email in error, please notify us immediately, then delete this email. CA UT/ON: Do not open attachments or click on links unless you recognize the sender an know the content is safe. June 23, 2021 2 Item #1 Page 37 ·of 38 Dec. 14, 2021 Item #16 Page 66 of 252 Dear Carlsbad Neighbors, Did you know the City of Carlsbad is planning to allow construction of new 5GfSmall Gell' towers every 100-500 ft throughout Carlsbad and La Costa neighborhoods? Did you know the radiation emitted from these towers has been classified as a -· carcinogen by the World Health Organization and is especially harmful to the health of children, the elderly and people with chronic diseases? FACT: the safety .guidelines for cellular wireless technology h.as not been revised by· the FCC since 1996 -24 YEARS! Did you know that dozens of cities in Northern California are scrambling to keep 5G/Small Cell towers out of their neighborhoods? The technology elite who helped invent this technology do not want it around them and are sending their children to Wardorf schools wnere there rs NO technology. Carlsbad and cities across the natlc,n are being bulJied by Big Telecom and the FGC to adopt technology that will compromise the beauty, health, and security of our communities. ft is the spe.cific 5G technology being used that wiU allow our data to be collectec;f. These towers will allow companies to categorize our data, and sen our data at the expense of our children's health. Please get informed and involved. Together we GAN make a differ~nce. Attend our local meetings announced on our Facebook page, Stop 5G Carlsbad. Check out the many scientific studies at nttp://www~5~Q!.!filS.,_QoQ1, ema.il questions to Karen, dakini22459@protonmaif.com Take the time to email each city council member. Make appointments with them. They are available for 15 minute sessions weekly, They must hear from you! Carlsbad Citizens for Safe Technology June 23, 2021 ltem#l Page 38 of 38 Dec. 14, 2021 Item #16 Page 67 of 252 Tammy Cloud-McMinn From: Sent: To: Subject: Attachments: maril415@charter.net Wednesday, June 23, 2021 11 :42 AM City Clerk Comments for June 23, 2021 City Council Meeting Carlsbad City Council -SG.docx All Receive -Agenda Item # j_ For the Information of the: CITY COUNCIL Datel,f1;b1cA vCC~ CM ~ -OCM {3)-=::---- Kindly distribute to the city council members and enter into the public record for today's l:!1eeting. tThank you, Maril Adrian 760 918 0680 CAUTION: Do not open attachments or click on links unless nize the sender and know the content i safe. 1 Dec. 14, 2021 Item #16 Page 68 of 252 To: Members of the Carlsbad City Council From: Maril Adrian, -Carlsbad Resident -5218 Shelley Place -760 918-0680 Date: June 23, 2021 Re: Concerns Regarding 5G Small Cell Tower Deployment in Carlsbad There is no way within the scope of these comments that I can provide a comprehensive list of the many issues surrounding the deployment of 5G small cell towers in the Carlsbad community. However, our neighboring city, Encinitas, in response to public input, made some maier amendments to their original pq_licy (No. C035). Item 1 OA of the Encinitas City Coun.cil minutes of October 30, 2019 goes into detail regarding their findings and resolution, which can be found on the following website: https://encinitas.granicus.com/GeneratedAgendaViewer.php?.Yiew id=7&clip id=2025 On September 23, 2019 at a public forum held at the Encinitas Senior Center, 200 members of the Encinitas community either voiced or wrote their concerns about the 5G small cell towers. These conc-erns included, 1. Restrict small wireless facilities in.residential areas;-day care centers, schools and hospitals 2. Adverse health impacts (tlle FCC reaffirms compliance with their order regardless of health impacts; this is criminal, but there is little hope at this point in time) 3. Impacts to property values 4. Frre hazards 5. Concerns with the Telecom Law Firm (based on feedback that the law firm did not advocate enough for the community's best interests. The theme of those comments was for the city of Encinitas to have an ordinance that is more pr-0tective of residents. The original policy (C035) with its final amendments are included in the minutes on the website noted above. My point in bringing this matter to your attention is to urge you to recognize that you have more power than you think you have. As a long time resident (almost 15 years), I believe that we have a unique community and one that (not only in spite of, but because of the turmoil going on throughout the. state, the country and the world) is worth protecting. I also believe that major decisions that affect the community should be made _with widely dispersed information and widely promoted forums inviting community members to participate. If we can send out a survey on whether or not to open beaches, it would seem that something that affects the lives of everyone in this community would be worth pro- actively collecting feedback. People are busy, People are also suffering due to the economic hardships imposed by the state/federal mandates. We elected city council members to represent and act in the best interests of our needs, not based on outside mandates .or personal biases, but as true representatives of the people. And when it comes time to protest or push back against these mandates, we expect that, too. 5G offers foster communication; however, what is still being ignored, are the long term effects of this technology and its negative potential and consequences. If Encinitas can take steps to ameliorate any harm to its people, Carlsbad should do no less. Dec. 14, 2021 Item #16 Page 69 of 252 Tammy Cloud-McMinn From: Sent: To: Subject: Karen Rich, CHD/CA-SAN <KLR1959@protonmail.com> Wednesday, June 23, 2021 11:55 AM City Clerk Comments for the Record RE: SG CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES WORKSHOP Dear Carlsbad City Council and Staff, I am very interested in participating in a 'SG CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES WORKSHOP' but notice of less than a week is simply not ample time to prepare. This council and staff have been promising Carlsbad citizens a workshop of this nature for over a year -to rush it in this manner does not do justice to the extreme seriousness of the issue i.e. 1. In January 2021, 11.500 pieces of scientific proof of wireless risks/harms were presented to a federal court in order to compel the FCC to update their 25 yr old health and safety guidelines. Unfortunately the FCC is not being legally forced at this time to change their guidelines but the court's official position stated that "the FCC has not been due diligent on ,behalf of protecting the public from wireless risks and harm." 3. We all know now this is not about 'small cell' 4GL TE/SG towers ... that was a Telecom Industry/FCC diversionary tactic. The real issue is about accessing the impact of ALL new 'Smart City Grid/Internet of Things' infrastructure that includes but is not limited to: SG wireless technology, Artificial Intelligence technology and OTARD technology. 4. Smc1rt City Grid/Internet of Things infrastructure exposes all living beings and the environment to unprecedented levels of microwave radiation along With unprecedented capabilities for tracking, surveillance and data harvesting. The health, privacy, safety and security of Carlsbad citizens is at stake. To critically thinking people, The Precautionary Principle matters where this infrastructure is .concerned. 5. There are state, national and international lawsuits being filed regarding the irresponsibly rushed installation of Smart City Grid/Internet of Things infrastructure ... the Carlsbad City Council and staff can be on the right side of technology policy now or be held accountable later for the harms caused to the Carlsbad citizens to whom you have taken an oath to serve. I submit this email and all comments made herein for the record and request confirmation of receipt. Sincerely, Karen Rich, Constituent Carlsbad, CA 92009 1 Dec. 14, 2021 Item #16 Page 70 of 252 Tammy Cloud-McMinn From: Sent: To: Subject: Irene Tsutsui <irenegdnight@earthlink.net> Wednesday, June 23, 2021 11 :59 AM Oty Clerk Comments for the Record RE: SG CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES WORKSHOP Sending t o you so that my comments will be presented by 2:00 pm today by your staff re the SG workshop scheduled at 4PM. From: Irene Tsutsui [mailto:irenegdnight@earthlink.net] Sent: Wednesday, June 23, 2021 10:55 AM To: 'matt. hall@ca rlsbadca .gov'; 'keith. blackburn@carlsbadca.gov'; 'cori.sch umacher@ca rlsbadca .gov'; 'priya .bhat- patel@carlsbadca .gov'; 'teresa.acosta@carlsbadca.gov'; 'scott.chadwick@carlsbadca.gov'; 'Jason.Haber@carlsbadca.gov' Cc: 'Barbara.Engleson@carlsbadta.gov' Subject: Comments for the Record RE: SG CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILillES WORKSHOP Importance: High Dear Mayor Hall, City Council and Staff, I was given short notice of the SG CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATIONS FACILITIES WORKSHOP last Friday. The 15 minute time slot for presentations does not adequately address the serious issues pertaining to Smart 4G/5G wireless facilities. Jason. Haber indicated in person council meetings could provide another opportunity for the public to participate in the fall (August/September). I conveyed to· Jason that citizens had planned last year (before COVID shut down meeting attendance} to have people with high SG and wireless technology expertise make presentations at the workshop we had consistently requested in 2019 and 2020 at council meetings via citizen presentations and petitions that were submitted and at the meeting I and Jay Varon had with Jason Haber and Gary Barboni last spring. The FCC's official position after reviewing over 11,000 pieces of scientific proof of harm from wireless radiation exposure was: " ... the FCC has not been due diligent on behalf of protecting the public from wireless risks and harm." It is thus vital to have a new Wireless Telecommunications Facility (WTF) ordinance fra,med that does not ignore the science. I had previously suggested following the Precautionary Principle. As part of this approach at the spring meeting I and Jay h·ad with Messrs. Haber and Barboni, I suggested forming a subcommittee consisting of 2 or 3 Carlsbad citizens who would help frame any new WTC ordinance so as to avoid legal challenges that are bound to ensue without proper safeguards being adopted to ensure the health and safety of citizens. Please give this suggestion serious consideration. The surcharges we have paid in our phone and local utility bills for decades that were supposed to be used to develop safe, hard-wired fibre optic networks .. .I ask, Carlsbad City Council WHERE is that money?! Cheryl Scheurer, PhD Testimony Opposing AB.537 at the Senate Governance and Finance Committee "We-the-People want wired communications for broadband -fiber-optics to the premises -for whrch we've already paid on our phone bills from 1995 to the present ... NOT hazardous wireless broadband deployed far too close to homes and, using excessive power:"· https://wirecalifornia.org/cheryl/ ·· 1 Dec. 14, 2021 Item #16 Page 71 of 252 In the absence of an expanded platform for citizen input on the 23rd, please allow me to convey some important considerations which have been outlined by Andrew Campanelli, the attorney who has represented individuals and municipalities on the subject of adoption of wireless facility infrastructure ordinances by various m unidpalities. I spoke with him prior to COVID last year as he was recommended as the foremost experienced expert on this subject. His position is that cities should adopt the policies which will avoid legal conflict that typically results from inadequate guidelines which fail to guarantee compliance to FCC radiation limits by wireless site developers and carriers. A good city ordinance is typically 40 to 50 pages long. The City does have the power to control where facilities go. Ifyou do not regulate with that in mind, the FCC won't regulate wireless facilities as they have no idea where the facilities are located given the broad 200 ft height parameter. Cities cannot afford to ignore the health dangers at the non-them1al level that are already established via peer review studies; contrary to the idea that health hazards is not the final arbiter of establishing legal boundaries, if push comes to shove, Mr. Campanelli says they can and are being used to prevent the adoption of overly lax city ordinances. As a result cities such as Petaluma, Berkeley and Burbank have restrictions on the placement of wireless facilities and/or testing requirements which limit the ability of WTF owners to install WTFs where they are not needed or would pose a saf~ty risk. He says the first priority is the City needs to sufficiently codify legislative intent You need to start out by describing the potential adverse impacts; you want to say the City ensures that Wireless Telecommunication Facilities are placed in a way that doesn't necessarily cause adverse impacts on aesthetics, reduction in property values, or cause damage as a result of such things as insufficient fall zones, structural failures or fires. Secondly, guidance and specific conditions must be laid out to get maximum FCC compliance. There is typically a lack of objective data as a result of inadequate or improper information submitted by site developers (or carriers) on the FCC Compliance Report and associated reports. Mr.Campanelli reports that site developers do not typically apply for the best locations; their locations may not even be necessary to provide the best and safest wireless service. According to Mr. Campanelli, 90% of the FCC Compliance Reports submitted by site developers provide false and misleading information such as distance specifications or gap claims of dropped service. Propagation maps are ofte.r1 bogus. If the planning board does not know how to read the reports accompanying wireless facility applications, they can miss the discrepancies. Thus the City must give the planning board guidance as to what type of evidence they should ask for so they can analyze and understand what is given to them. The goal is for the planning board to understands when they see a false document. The important part is for the wireless company to give the planning board proof. Some of Mr. Campanelli's suggestions for giving proper guidance to the planning board are as follows: ESTABL.ISHING A NEED FOR THE FACILITY: Mr. Campanelli said he has successfully secured many application denials when the site developer cannot show that the facility is actually necessary. There should be a provision that establishes if the WTF is actually necessary . If the City requires probative evidence to be submitted to support a Wireless Telecommunications Facility (WTF) zoning application or special use permit, the less legal challenges you will incur as. a result of egregious deficiencies, misrepresentations and application errors. REQUIRING REAL OR SELF-INSURANCE: Utilizing the Precautionary Principle protects the City im making the wireless facility owner responsible for the hazards that may occur as a result of structural failures, insufficient fall zones and fires that erupt at wireless facility sites. In the case of the Malibu fire in 2007 a California Public Utilities Commission investigation concluded that the poles were so overloaded with electrical and telecommunications wires and other equipment that they broke in v-.rinds they should have been able to withstand. Malibu Mayor Andy Stern said the report highlights a serious problem. No one, he said, appears to be taking ultimate responsibility to ensure that power poles do not become overloaded."There should be an investigation, with a log for each additional utility showing they've done a weight-load check," Stern said. "There's a huge problem and no one is addressing it. I think these [poles] are ticking time bombs." https://www.latimes.com/archives/la-xpm-2009- may-06-me-power1ines6-story.html. The City can require the names of the individual principal WTF 2 Dec. 14, 2021 Item #16 Page 72 of 252 owners stated on the applications who will be responsible in the event of a facility hazard causing damage. You want to avoid the City having to provide insurance and coming up with the money to cover the damages. The entity that has the funds to afford to cover the damage should be on the line instead of the City .. OVERSIGHT ON SITE DEVELOPERS. A. Site developers must provide a legitimate propagation map that can be verified; the City should ensure oversight so as to prevent bogus propagation maps, FCC Compliance Reports and visual impact analyses that would be unwittingly .approved by the City. . B. Identify the planning board that is given the authority over such documents as special use permits. What kinds of factual determinations and probative evidence do the applicants have to provide that back up their statements and representations? The planning board must make some determination. as to how it determines whether or not the information submitted by the site developer is legitimate. Failure to do so limits local control and allows the site developer to win their case by default in the event of a dispute to the detriment of citizens and local businesses. C. Specify the necessary notice requirements applicants must be required to submit to residents or businesses before an application can be approved; example, 30-60 days advance notice and whom to contact with health concerns. D. The City wants to retain the maxim~m power in the placement of smart cell antennas and towers by laying out specific guidance requirements; not doing so gives too much leeway to site developers with negative impact on citizens. COMMON FRAUDULENT CLAIMS: Mr. Campanelli addresses the most common fraudulent claims by site developers. He says that 40% of the time the stated specifications made by site developers exceed the acceptable FCC radiation limits. He says this is typically not done by mistake. A. Claims of compliance with the wrong standard. a) General population radiation exposure limit and Occupational exposure limit (for people who work on towers and have made a conscious decision to work on towers}. The radiation limit for occupational workers is higher than the general population radiation exposure limit. The occupational exposure limit may be use.d improperly to qualify for the general population radiation exposure limit creating a disparity. Make sure there is a clearly defined alignment between the standard represented by the WTF owner and the factual data to support it so there is no question the FCC radiation limits are not being exceeded. B. Discrepandes in meeting distance requirements. Mr. Campanelli says the vast majority of smart cell antennas and towers are below 200 ft in height. These facilities tend to be unregulated and the FCC has no idea where the equipment is nor the level of radiation emanating from the equipment. Unless someone makes a phone call and says h/she measured the radiation, said radiation level is generally not tested thus Mr. Campanelli has found that many exceed the FCC limits. Local governments must provide the first line of resistance. To prepare a false FCC compliance report, which shows the level of microwave radiation will be a fraction of what it will actually be, all they have to do is .start with a false distance factor The easiest way to prevent a false calculation is to recognize a false distance factor. When the applicant gives the town an FCC compliance report, they have to calculate the level of microwave radiation to which they will expose people. The reason for such a report is that the WTF doesn't exist yet.. The first factor they have to consider is how close someone can get to the Wireless Telecomunications Facility (WTF). The closer someone gets to a WTF, the greater the level of microwave radiation to which they get exposed. 3 Dec. 14, 2021 Item #16 Page 73 of 252 Example, you have a cell tower going inside a church steeple 60 to 80 ft above ground. The site developer states that distance is within FCC guidelines. However, it turns out tourists are regularly viewing the steeple at a close range of two feet. All the site developer has to do is specify 60 feet so as to qualify, but that results in exposing tourists to dangerous radiation levels. The planning board must ensure the legitimacy of distance parameters by whatever measures is deemed suitable to prevent misleading information from being submitted and by providing a means to scrutinize distance specifications submitted on a WTF application. Some cities have enacted testing requirements since no one typically inspects WTFs thus safeguards are recommended as follows: a} Self-paid testing by local government which enacts an ordinance saying the City (utilizing an Rf engineer) will randomly test facilities in its jurisdiction once a year; the RF engineer is going to test without informing the facility owner. If the latter's installation exceeds the radiation limit, a hearing i's scheduled and the facility owner must inform the City within 30 days why he did not disclose that the radiation limit exceeds the FCC limit and why he should not be expected to tear down the facility before the City compels the facility owner to remove it. b) The facility owner pays for the test. Some towns in California started enacting testing requirements eight years ago, among them Calabasas, California. Mr. Campanelli says that the Jurisdictions that enact testing requirements such as Berkeley and Burbank have not incurred any law suits. c) Calabasas has enacted a provision that any time a citizen can test a wireless facility and if he/she finds (with an RF engineer) the radiation exceeds the FCC limits, a law suit can be pursued and if the claimant proves . FCC limits have been exceeded, claimants attorney fees are included in remedying the problem for the benefit of the claimant. Regular testing is a good way for the City to avoid litigation. C. Gap claims and miscalculations. a) The wireless carrier may suffer from a gap in its personal wireless services. b} The proposed installat1on is the least intrusive means of remedying that gap and there is no possible less intrusive alternative location If -and only if -they can prove those two things, then the municipality has to issue the permit for the WTF. BUT, the imp.ortant part is to make the applicant prove these two points with substantial written evidence in the public record. Usually, when it is a site developer, such as Crown Castle, it is not the best location. So local governments have to force the ~pplicant to give them probitive evidence, just like anybody else would. The applicant will come in with propagation maps, many of which are bogus. Without the data behind the maps, the municipality does not know if the propagation map is worth the paper it is written on. The truth is that no Federal Court would take a propagation map without verification. Sophisticated local governments know what to ask for so they can control, for the most part, where Wireless Telecommunications Facilities go by laying out specific probative evidence requirements. A drive test can be done, and it is a very cheap process. They take take a phone [or RF meter], attach a recording device and they drive through town. The recording device records the signal strengths every few milliseconds and it will give you a precise reading of all the signal strengths on the streets of the town. That hard data will show you if there is a gap in telecommunications service, where it is and what it's boundaries are. If a wireless carrier has a significant gap, they will be the one a pp lying for the cell tower or the WTF ... If the town denies an applkation because of aesthetics, and an applicant has said we have a significant gap and the town does not find whether or not the applicant proves there is a gap, then the town loses by default. Under the federal law, any denial of a cell tower must be based upon substantial written evidence.The town wants to say "We deny the application because of an adverse effect on property values and the evidence we have is this property owner brought in a letter from a professional, a real estate broker or an appraiser, saying this tower will reduce the value of your house by 20-30%. if the City does nothing (no testing, no oversight) or puts little or no responsibility on the WTF owner to test equipment, submit verifiable distance specs and legitimate maps and visual impact reports), site developers and carriers will be 4 Dec. 14, 2021 Item #16 Page 74 of 252 encouraged to submit applications and reports they know will not be scrutinized which lack of scrutiny are bound to cause negative impacts on citizens' health, lifestyle, safety and well-being as well as lower property values. There are key sections of the Telecommunications Act which merit careful review. Rather than submit them here, I will endeavor to submit those separately if not by the 23rd, then as soon as is feasible with comments. One last word on the issue of protecting citizens' health. Mr. Campanelli says that the way they are applying the TCA as is cunently being applied is violating our right of self-defense. They are preventing us from exercising our right of self-defense in our own homes. There is a real levels of harm being reported to him daily by citizens across the na6on, and the overall state of things cannot just keep going along as they are. Mr. Campanelli feels that the time is coming soon when an American Disabilities Act (ADA) case will present itself to drastically change the complexion of the TCA. I did not address the ADA issue above; however, I mention its importance in light of the self-defense issue sjnce the two are related, if not 011 direct technical grounds, they are on moral and ethical grounds. The City of Carlsbad City Council and staff must choose which side of the pendulum they are swayed to act. On the one is catering to the hue and cry for Smart City and Internet of Things which will expose all living beings to horrendous levels of microwave radiation as well as unprecedented levels of surveillance and the transformation of citizens into data commodjtics to be tracked 24/7 and bought and sold to the highest bidder; On the other side, applying the Precautionary Principle to infrastructure policy will reflect the caution that is essential to preserve the safeguards citizens expect from their elected officials .. Given the litigious environment state, national and global governments are experiencing, rushing through an irresponsible ordinance for WTFs should be avoided in order to fulfill your highest oath to serve the citizens of Carlsbad. I plan to request a published guideline by Mr. Campanelli which one of the SG citizen organizations may be able to provide and will submit it to the City as soon as I receive it. I submit this email and my comments herewith for the record and request confirmation of receipt of same. Sincerely, Irene Tsutsui, Constituent Carlsbad, CA 92009 5 Dec. 14, 2021 Item #16 Page 75 of 252 Tammy Cloud-McMinn From: Sent: To: Subject: David j Freund <davidjfreund@gmail.com> Wednesday, June 23, 2021 1:53 PM City Clerk Fwd: Comments for the Record RE: 5G CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES WORKSHOP ----------Forwarded message --------- From: David j Freund <davidjfreund@gmail.com> Date: Wed, Jun 23, 2021 at 1:47 PM Subject: Comments for the Record RE: SG CELLULAR TECHNOLOGY AND WIRELESS COMMUNICATION FACILITIES WORKSHOP To: <matt.hall@carlsbadca.gov> Cc: <keith.blackburn@carlsbadca.gov>, <cori.schumacher@carlsbadca.gov>, <priya.bhat-patel@carlsbadca.gov>, <teresa.acosta@carlsbadca.gov>, <scott.chadwick@carlsbadca.gov>, <Jason.Haber@carlsbadca.gov>, <Barbara.Engleson@carlsbadca.gov>, Irene Tsutsui/Cbd <irenegdnight@earthlink.net> Mayor and City Council, I am very interested in attending upcoming meetings about the wireless technology workshop. I just found out and it was absolutely too short of a notice for me to gather myself together tO' participate in this. Thank You, David Freund David Freund 760.533.7326 David Freund 760.533. 7326 CAUTION: Do not open attachments or click on links unless ou reco nize the sender and know the content i 1 Dec. 14, 2021 Item #16 Page 76 of 252 Wireless Workshop Carlsbad City Council Meeting June 23, 2021 ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 77 of 252 Road Map 1. Technical Primer: What are These Things? 2. Legal Standards: What Federal, State and Local Laws Affect Deployment? 3. What's on the Horizon? ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 78 of 252 What are These Things? a quick technical primer on cellular technologies and facilities ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 79 of 252 --0 0 "O -::, 0 ol 0 "C C -.\ Network Densification and Het-Nets --~------------.----~---~ ~---~-~-_, --~-~~ ,,,........ LTE Coverage Layer ........... .. ,, . ' // I w 2G/3G I ---,,\ • EC------------...... LTE Capacity ;~Y-~t.--------........... ,,,' {! .......... ,, .... F1'u---........ ,"' ..,. .-===----' ~ J. · .... I \ , ' I \ // -. . \ / -. . ! >1W !/ LTE p1co/m1cro ·· · LTE p1co/m1cro < SW Enterprise Residential Public ,_,., ... ~ . macrocells provide coverage small cells and femtocells provide enhanced capacity and data throughput het-nets (heterogeneous networks) allow users (both ~~~: ~~-·~~ ... _,"" ,::;r:;--. -~--------ajl I< 1W human and machine) to access core networks thru multiple cell layers and/or technologies based on the fastest connection FemtoceU Femtocell/WiFi Femtocell/WiFi ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 80 of 252 ~~;;=;::;;;;;;;::•, ..... ~_""',.-----_-_-_-_-_-_-_-_-___ _ If' Lu-..._ Lz -unconcealed antenna weatherhead for utilities routed thru external conduits equipment cage RRUS, DC suppressor, fiber distribution optional backup battery power meter distribution panel and disconnect switch ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 81 of 252 Dec. 14, 2021Item #16 Page 82 of 252 Dec. 14, 2021Item #16 Page 83 of 252 Dec. 14, 2021Item #16 Page 84 of 252 Dec. 14, 2021Item #16 Page 85 of 252 ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 86 of 252 What Federal, State and Local Laws Affect Deployment? ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 87 of 252 47 U.S.C. § 332(c)(7) Personal Wireless Service Facilities Substantive Limitations • cannot explicitly or effectively prohibit wireless services or wireless facilities • cannot unreasonably discriminate between functionally equivalent services or providers • cannot regulate based on environmental effects from RF emissions to the extent such emissions comply with FCC regulations Procedural Requirements • must act on wireless application with a reasonable time given scope and project type • must issue a written decision based on substantial evidence in the written record ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 88 of 252 FCC RF Exposure Limits Basics • developed in 1996-97; recently reaffirmed by FCC • considers only thermal impacts from RF • state/LG cannot set their own standards but can check for compliance and regulate noncompliance Dynamic Exposure Limits • compliance depends on who's exposed; to what frequencies; at what distance from the antenna; at what power levels; and for how long • lower limits for general population; higher limits for "occupational" class (those w/ control over exposure) • sets maximum limit for general population at 50x lower than exposure required to change temp in a human cell ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 89 of 252 Figure 1. FCC Limits forMaxim:um, Permissible, Exposure (MPE) Plane-wave Equivalent Power Density 1,000~--~-~~---~--~--~~--~-~~ 100 10-5 1 0-2 \ \ \ \ \ \ \ Occupational/Controlled Exposure -- --General Population/Uncontmlled Exposure \ \ \ \ \ \_ / ---- -_,, ✓ ✓ /----/ ------0.11 I ------0'_,03 ,0_3 1 3 30 300 13.000 30,000 1300.000 1.34 1,500 100,000 Frequency (MHz) Dec. 14, 2021Item #16 Page 90 of 252 Why Does the Distance from Antenna Matter to the FCC? 100% of the Antenna1s output power in one rectangle (the antenna) Average 25% of the antenna1s output power in each rectangle at d2 d3 The Law of the Inverse Square Average of 11.1% of the antenna1s output power in each rectangle at d3 ATELECOM 1 W LAW FIRM PC 5 Dec. 14, 2021Item #16 Page 91 of 252 ----FCC RF Safety Standards with No Math Measurable • • increase 1n temperature Where does the FCC set its standard? FCC's 100% General Population Limit Typical for Sma II Cells: L_ ~· = ~ =---Ql0 r-• \Cl sox1 Margin 2% of permitted Ill) "'2" ~ N Emissions of a fraction of 2% ~ " ,.._ ~ I-~ ~ = = = = J=:: 1= = -A TELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 92 of 252 RF Compliance Evaluation Assume "Worst-Case" Scenarios • maximum possible equipment output • perfect signal propagation • trespassers on/near the antennas Assess Accessibility • will the facility create emissions that exceed the FCC's maximum limits? • how likely would it be for a GenPop member to stand too long in front of the antennas? Mitigation Conditions {if needed) ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 93 of 252 47 U.S.C. § 1455(a) (aka Section 6409) State and local governments may not deny, and shall approve, any collocation or modification request for an existing wireless tower or base station so long as it does not cause a substantial change in its physical dimensions. ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 94 of 252 Substantial Change Criteria Towers Base Stations & ROW Height I[ 20 feet or ten percentJL 1 O feet or 1 O percent Width Ir Equipment Cabinets II Excavation Concealment Compliance with Prior Permit Conditions 20 feet or tower width 6 feet Ir 4 maximum II same, plus other complicated rules -within the leased or same, and some further owned area restrictions cannot "defeat" the concealment elements changes must comply with all prior conditions except limits on height, width, cabinets or excavation ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 95 of 252 6409 Declaratory Ruling 35 FCC Red. 5977 (Jun. 10, 2020) Reinterprets FCC 6409 Rules • shot clock commencement • reduced protections for concealment elements • reduced protections for prior COAs • changes maximum height limit for non-ROW towers • excludes certain equipment from "equipment cabinet" definition Legal Challenges Pending • Case No. 20-71765 (2019) ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 96 of 252 6409 Order WT Docket No. 19-250 (Nov. 3, 2020) Modifies Threshold for Substantial Change in Site Area • prior rule: any change in site area = substantial change • new rule: any expansion 30 feet or less = not a substantial change • applies only to towers outside the ROW Challenges Pending • petition for reconsideration filed 01/04/2021 • no judicial challenges pending ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 97 of 252 FCC's 2018 Orders Prohibits "Express" & "De Facto" Moratoria • must accept applications • cannot use traditional local tool to study the issue Small Cells -Less Discretion, Less Time • creates a new regulatory classification for small wireless facilities • establishes a national standard for an effective prohibition with new presumptions and remedies • adopts new, faster shot clocks for processing applications • limits pole attachment fees and local aesthetic regulations ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 98 of 252 "Small Wireless Facility" (l) Small wireless facilities, consistent with section l.1312(e)(2). are facilities that meet each of the following conditions: (1) The facilities-i) are mounted on structures 50 feet or less in height including their antennas as defined in section 1.1320( d). or (ii) are mounted on structures no more than 10 percent taller than other adjacent structures. or (iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater· (2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in section l.1320(d)), 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 28 cubic feet in volume· (4) The facilities do not require antenna structure registration under part 17 of this chapter-(5) The facilities are not located on Tribal lands, as defined under 36 CFR 800. l 6(x); and (6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in section l. l 307(b ). ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 99 of 252 Dec. 14, 2021Item #16 Page 100 of 252 -Dec. 14, 2021Item #16 Page 101 of 252 AT&T 4G by Crown Castle San Diego Dec. 14, 2021Item #16 Page 102 of 252 Dec. 14, 2021Item #16 Page 103 of 252 Verizon 5G Only San Diego ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 104 of 252 Effective Prohibitions Fees • reasonable approximation of government's costs • only objectively reasonable costs are factored into those fees, • the fees are no higher than the fees charged to similarly-situated competitors in similar situations Aesthetics • reasonable (i.e., technically feasible) • published in advance ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 105 of 252 Mobilitie Alabama AT&T4G by Crown Castle San Diego Dec. 14, 2021Item #16 Page 106 of 252 AT&T4G San Diego ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 107 of 252 Shot Clocks Shorter Timeframes 60 days • small wireless facility "collocations" • all eligible facility requests under Section 6409 90 days • small wireless facilities on new structures • collocations not covered as an eligible facilities request or small wireless facility 150 days • everything else ... • new, freestanding non-small wireless facilities ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 108 of 252 Portland v. United States 969 F.3d 1020 (9th 2020) Challenged Small Cell/Moratorium Orders Mixed Result • upheld Moratorium Order, shot clock rules and limits on permit/license fees • struck down aesthetic/non-fee regulations Further Challenges • Ninth Circuit denied petition for reconsideration • Cert. Petition to US Supreme Court filed 03/21/2021 ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 109 of 252 California Public Utilities Code Section 2902 • municipalities cannot "surrender" police powers to the CPUC to regulate relationship between the public and utilities Section 7901 • grants telephone corporations a state-wide franchise to access and use the public rights-of-way to the extent necessary to provide telephone services • providers cannot incommode the publics' use • preserves aesthetic control over ROW facilities Section 7901. 1 • preserves reasonable time, place and manner regulations over how telephone corporations access and use the ROW • regulations must be applied equally to all providers ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 110 of 252 California Gov't Code § 65964.1 California state law "deems approved" any aP.plication_for a new or substantially changed wireless site when: 1. the LG fails to approve or deny the application within the applicable FCC shot clock timeframe; and 2. the applicant has provided all public notices required for the application; and 3. the applicant has provided notice to the LG that the application is deemed approved; ... and possibly ... 4. 30 days have passed since the notice date. ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 111 of 252 Local Law City's Hybrid Code-Policy Approach • Carlsbad Municipal Code§ 21.42.140(8)(165) • Council Policy No. 64 private property NA compliant w/ all location and design requirements all other applications public ROW compliant w/ all location and design requirements compliant w/ all design requirements but in discouraged location all other applications ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 112 of 252 Council Policy No. 64 Location Guidelines Preference Hierarchy • establishes priorities: • industrial/commercial over residential; • collocation over new sites; • existing/replacement structures over new ones • ROW can be "preferred" when adjacent to industrial/commercial zones or on major arterials Discouraged Locations • approvable only when applicant shows all more-preferred locations/structures are infeasible ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 113 of 252 Council Policy No. 64 Design Guidelines General Requirements • stealth designs to hide or disguise equipment • minimize overall height • compliance with federal RF exposure rules • ROW Facilities • minimize unnecessary equipment volume • underground whenever possible • allows some extra height to keep a slimmer profile • avoid unnecessary obstructions for vehicles, bicyclists and pedestrians ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 114 of 252 Council Policy No. 64 COAs and Operational Rules Avoid/Minimize Nuisances • noise and ambient light controls • regular maintenance requirements On-Going RF Compliance Obligations • permittee to submit as-built compliance report w/in six months after construction Abandoned Facility Removal Obligations 10-Year Permit Term Limits ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 115 of 252 What's on the Horizon? pending legislative, regulatory and judicial activities that impact local authority over wireless facilities ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 116 of 252 Proposed Legislation SB 556 (Dodd/Hertzberg) • worse than FCC Small Cell Order • makes all poles available for small cells • at rates below actual cost • with less time than FCC shot clock • already passed in Senate; some version likely to pass SB 378 (Gonzales/Herzberg/Wiener) • by-right micro trenching for conduits only AB 537 (Quirk) • allows construction if permits deemed approved under AB57 AB 1166 (Grayson) • remedies similar to AB 537 but includes new sites, collocations and 6409 applications ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 117 of 252 Questions? Robert C. May Ill Managing Partner Telecom Law Firm, PC 3570 Camino del Rio N., Ste. 102 San Diego, CA 92108 (619) 272-6200 tripp@telecomlawfirm.com practice focused on representing public agencies and other landowners in telecom infrastructure regulations and transactions represents the League of California Cities, League of Oregon Cities, League of Arizona Cities and Towns and dozens more public agencies before the FCC and federal courts represents 100+ public agencies in telecom regulation, permitting, leasing, construction and litigation matters JD, University of San Diego School of Law Executive Editor, San Diego Law Review Executive Board, Moot Court ATELECOM WLAWFIRMPC Dec. 14, 2021Item #16 Page 118 of 252 Council Policy Statement Category: WIRELESS COMMUNICATION FACILITIES Specific Subject: Review and Operation Guidelines for Wireless Communication Facilities PURPOSE: Wireless communication facilities, or WCFs, refer to the many facilities with antennas and supporting equipment that receive and transmit signals and together enable mobile or other “wire-free” communication and information services. Unlike wireline communicationsground-wired telecommunications, such as the land-based telephone system, wireless communication technologies, by their operational nature, require a network of antennas mounted at various heights and attached typically to buildings, structures and poles. A common name for a WCF is “cell site.” WCF proposals to the city became commonplace in the mid-1990s. Since then, Carlsbad has processed dozens of new WCF applications and numerous permit renewals for existing facilities, all without benefit of specific review criteria. As the city’s population and the popularity and variety of wireless services grow, providers are expected to install more facilities to improve coverage and gain user capacity. The following Review and Operation Guidelines have been developed to supplement and clarify the requirements of Carlsbad Municipal and Zoning codes, including chapter 21.42 of the Carlsbad Zoning Code. These requirements are meant to provide a general overview of the procedures and requirements for installation of WCFs, while accommodating and supporting deployment of WCFs to provide adequate coverage and capacity throughout the city. They also outline definitions that are quantifiable and measurable and detail development standards and design requirements which the city will use to review proposed facilities. This policy’s purpose is to guide the public, applicants, boards and commissions, and staff in reviewing the placement, construction, and modification of WCFs. The goal is to assure WCFs in Carlsbad: •Are reviewed and provided within the parameters of law. •Protect the health, safety, and welfare of the public to the extent permitted by applicable laws. •Are encouraged to locate away from residential and other sensitive areas, except as allowed by Sections A, B and C. of this policy – Location Guidelines for the Placement of WCFs. •Represent the fewest possible facilities necessary to complete a network without discriminating against providers of functionally equivalent services or prohibiting the provision of wireless services. •Use, as much as possible, “stealth” techniques so they are not seen or easily noticed. Policy No. 64 Date Issued: 9/26/2017 Effective Date: 12/14/2021 9/26/2017 Resolution No. 2017-189 Cancellation Date: Supersedes No. 64 04/10/12 Exhibit 3 {city of Carlsbad Dec. 14, 2021 Item #16 Page 119 of 252 • Operate consistent with Carlsbad’s quality of life. This policy applies to all commercial providers of wireless communication services. It does not apply to amateur (HAM) radio antennas, dish antennas, collocations and/or modifications covered under Federal Communications Commission (FCC) regulations at 47 C.F.R. §§ 1.40001 et seq. and other antennas installed on a residence for an individual’s private use. The Guidelines shall not relieve a person from the responsibility of complying with all other applicable regulations of any other local, state, or federal agencies. These Guidelines supplement existing regulations and provide clear standards and guidelines for all wireless infrastructure deployments unless specifically prohibited by applicable law. The standards and procedures contained in these Guidelines are intended to, and should be applied to, protect and promote public health, safety and welfare, and balance the benefits that flow from robust, advanced wireless services with the city’s local values. Except as expressly provided otherwise, these Guidelines shall be applicable to all applications and requests for authorization to construct, install, attach, operate, collocate, modify, reconstruct, replace, relocate or otherwise deploy WCFs, inclusive of applications which affect existing facilities. These Guidelines are also intended to establish clear procedures for application intake and completeness review. Conditional use permit applications for WCFs that were denied shall follow the process in Carlsbad Municipal Code Section 21.54.130 for reapplication of a new CUPconditional use permit. Building permit and ROWright of way permit applications for facilities that were denied may be submitted to the Community Development Department as new applications at any time, without prejudice. SaidSuch a new application will be processed as a completely separate application, with new submittal materials and fees required, and shall demonstrate compliance with these Guidelines. BACKGROUND: To secure the right to provide personal wireless services to a region, companies often must obtain airwave licenses that are auctioned by the FCC, the federal agency that regulates the telecommunications industry. For radio services that use license spectrum, the FCC mandates the licensees establish their service networks as quickly as possible. In Carlsbad, there are three common types of wireless communicationWCF systems: Cellular, PCS (Personal Communications Services), and ESMR (Enhanced Specialized Mobile Radio). POLICY: REVIEW RESTRICTIONS: The Federal Telecommunications Act of 1996 (TCA) preserves the city’s ability to regulate the placement, construction, and modification of wireless communication facilities subject to the following restrictions. • The city may not favor any carrier. Regulations may not unreasonably discriminate among functionally equivalent service providers. A “functionally equivalent provider” means a competitor. • The city may not prevent completion of a network. Regulations may not prohibit or have the effect of prohibiting the provision of personal wireless services. According to the FCC’s recent order in 2018, theThe denial of a single permit application Dec. 14, 2021 Item #16 Page 120 of 252 may cause an effective prohibition if it would perpetuate a significant gap even though the applicant proposes the least intrusive means to close that gap “materially inhibits or limits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, WT Docket No. 17-79, WC Docket No. 17-84, 33 FCC Rcd. 9088 at ¶ 37 (2018) (Small Cell Order). In addition, local aesthetic requirements may be prohibitory unless they are reasonable and published in advance. Small Cell Order at ¶ 40, rev’d in part, City of Portland v. United States, 969 F.3d 1020 (9thNinth Circuit,. 2020). • Applications are to be processed in a reasonable time. A city must act on an application for WCFs within a “reasonable” amount of time, which the FCC generally defines as either 60, 90, or 150 days from the time an application is submitted and depending on the nature and scope of the proposed wireless facility. • Failure to approve or deny applications may result in automatic approvals and court orders. Under California Government Code 65964.1, an application for a wireless facility may be “deemed approved” if a city or county fails to act within the presumptively reasonable timeframes established by the FCC. This provision contains some exceptions but generally applies to new facilities and very large modifications to existing facilities both on private property and in the public rights-of-way. The FCC’s regulations contain a similar “deemed granted” remedy for less- than substantial collocations and modifications to existing facilities. In addition, the Small Cell Order establishes that a permitting agency’s failure to act within the referenced timeframes will amount to a presumptive prohibition on the provision of personal wireless services, the remedy for which may be a court injunction. • The city cannot deny an application because of perceived radio frequency health hazards. If federal standards are met, cities may not deny permits on the grounds that radio frequency emissions (RF) are harmful to the environment or to the health of residents. However, local governments may require wireless carriers to prove compliance with the standards. The FCC has established procedures to enforce compliance with its rules. • The city cannot deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station (Section 6409(a) non-substantial modifications). The FCC promulgated detailed regulations for this restriction, including a definition for “substantial change” and procedural rules for processing these applications, which can be found at 47 C.F.R. § 1.40001 et seq. • Certain collocation facilities are not subject to discretionary permit requirements. Under California Government Code section 65850.6, a collocation facility (where two or more wireless operators have located their antennas at a common location) shall be a permitted use not subject to discretionary permit requirements if it satisfies the requirements of that statute. • A decision to deny an application must be supported by substantial evidence. A decision to deny a WCF application must be in writing and supported by substantial evidence contained in a written record. The reasons for the denial must also be contained in a written record contemporaneously available with the written denial notice and must be clear enough to enable judicial review. HEALTH CONCERNS & SAFEGUARDS: Dec. 14, 2021 Item #16 Page 121 of 252 Possible health risks from exposure to the RF electromagnetic fields generated by WCFs are a significant community concern. Accordingly, the FCC requires facilities to comply with RF exposure guidelines published in the Code of Federal Regulations (see 47 CFR § 1.1307 and 47 CFR §1.1310). The limits of exposure established by the guidelines are designed to protect the public health with a very large margin of safety as they are approximately 50 times below the levels that generally are accepted as having the potential to cause a measurable change in human physiology. Both the Environmental Protection Agency and Food and Drug Administration have endorsed the FCC’s exposure limits, and courts have upheld the FCC rules requiring compliance with the limits. Most WCFs create maximum exposures that are only a small fraction of the limits. Furthermore, because the antennas in a PCS, cellular, or other wireless network operate more efficiently when in a line of sight arrangement to effectively transmit, their power is focused on the horizon instead of toward the sky or ground. Generally, unless a person is physically next to and at the same height as an antenna, it is not possible to be exposed to RF emissions that exceed the maximum permissible exposure. The FCC requires providers, upon license application, renewal, or modification, to demonstrate compliance with RF exposure guidelines. Where two or more wireless operators have located their antennas at a common location (called “collocation”), the total exposure from all antennas taken together must be within FCC guidelines. Many facilities are exempt from routine having to demonstrate compliance demonstrations underwith FCC guidelines, however, because their low power generation or height above ground level is highly unlikely to cause exposures that exceed the guidelines in areas accessible by people. PERMIT PROCESSREVIEW AND APPROVAL GUIDELINES: Wireless communication facilities (WCFs) are defined in Carlsbad Municipal Code Section 21.04.379. Carlsbad Municipal Code Section 21.42.140(B)(165) allows WCFs in all zones with the approval of a minor conditional use permit (MCUP) or a conditional use permit (CUP) and subject to this policy. These guidelines should be followed in the review of CUPs for new WCFs as well as extensions and amendments to CUPs for existing installations. New WCFs are allowed in the public right-of-way of roads (ROW) subject to the requirements of this policy and the processing requirements of Table A below. Small wireless facilities (SWFs) are WCFs that also meet the definition in FCC regulations at 47 C.F.R. §§ 1.6002(l). For WCFs and SWFs to be located in the public right-of-way of roads, which generally is not zoned, a right-of-way permit pursuant to Title 11 of the Carlsbad Municipal Code may be used as outlined in Table A – WCF and SWF Processing Requirements.the following permitting requirements apply: A right of way permit shall be required instead of a CUP for a WCF that is (i) to be located on an existing or replacement pole, (ii) is consistent with the preferred locations in Location Guideline A.1 (or if in a discouraged location in Location Guideline A.2, has all equipment underground), and (iii) is consistent with Design Guidelines for WCFs in the Public Right-of-Way C; A minor CUP by Process 1 shall be required for a WCF that is (i) to be located on an existing or replacement pole, (ii) is in a discouraged location in Section A with above-ground equipment, and (iii) is consistent with Design Guidelines for WCFs in the Public Right-of-Way C; Dec. 14, 2021 Item #16 Page 122 of 252 A CUP by Process 2 shall be required for all other WCFs not meeting the criteria for approval subject to a right of way permit or a minor CUP by process 1. Dec. 14, 2021 Item #16 Page 123 of 252 TheTable A – WCF and SWF Processing Requirements Category Code reference/ definition Application Review Process Coastal Zone and Coastal Development Permit (CDP) requirements Applicable Policy 64 Guidelines New WCFs on public or private property Carlsbad Municipal Code (CMC) Section 21.04.379 CUP or Minor CUP 1 CDP or Minor CDP required per CMC Chap. 21.201 unless specifically exempted A, B, D, and E New WCFs in the public right-of-way of roads CMC Section 21.04.379 ROW permit2, Minor CUP3 or CUP4 Exempt per CMC Section 21.201.B.115 A, B, D and E Existing WCF – Section 6409(a) eligible facilities request CMC Section 21.04.379 and 47 U.S.C. § 1455(a) Section 6409(a) worksheets Exempt per CMC Section 21.201.B.115 N/A – Policy 64 does not apply Existing WCF – Emergency Generators CMC Section 21.04.379 and Government Code Section 65850.75 Building Permit Exempt per CMC Section 21.201.B.115 N/A – Policy 64 does not apply Small Wireless Facilities (SWF) CMC Section 21.04.379 and the definition in FCC regulations at 47 C.F.R. § 1.6002(l) Within the public right- of-way of roads: Right-of- way Permit Exempt per CMC Section 21.201.B.115 C, D, and E Outside the public right- of-way of roads: MCUP Minor CDP required per CMC Chap. 21.201 unless specifically exempted5 B, C, D, and E Notes: 1. These guidelines apply in the review of CUPs or Minor CUPs for new WCFs. 2. A right of way permit shall be required instead of a CUP for a WCF that is (i) to be located on an existing or replacement pole, (ii) is consistent with the preferred locations in Location Guideline A.1 (or if in a discouraged location in Location Guideline A.2, has all equipment underground), and (iii) is consistent with Design Guidelines for WCFs in the Public Right- of-Way C 3. A minor CUP by Process 1 shall be required for a WCF that is (i) to be located on an existing or replacement pole, (ii) is in a discouraged location in Section A with above-ground equipment, and (iii) is consistent with Design Guidelines for WCFs in the Public Right-of-Way C 4. A CUP by Process 2 shall be required for all other WCFs not meeting the criteria for approval subject to a right of way permit or a minor CUP by process 1 Dec. 14, 2021 Item #16 Page 124 of 252 5.When located within the city’s jurisdiction of the Coastal Zone. REVIEW AND APPROVAL GUIDELINES A.Location Guidelines fFor Placement of WCFs (excluding SWFs) 1.Preferred Locations – WCFs are encouraged to locate on existing buildings and structures. In addition, WCFs should be located in the following zones and areas, which are listed in order of descending preference: a.Industrial zones. b.Commercial zones. c.Other non-residential zones, except open space. d.Public right-of-way of roads adjacent to industrial and commercial zones and identified on the map attached as Exhibit A. e.Public property (e.g., city facilities) not in residential areas. f.Major power transmission towers in non-residential zones or areas. g.Public and private utility installations (not publicly accessible) in residential and open space zones (e.g., water tanks, reservoirs, or the existing communication towers near Maerkle Reservoir). h.Parks and community facilities (e.g., places of worship, community centers) in residential zones or areas. i.Public right-of-way of roads adjacent to residential zones and identified on the map attached as Exhibit A. 2.Discouraged Locations – WCFs should not locate in any of the following zones or areas unless the applicant demonstrates that alternatives in more-preferred locations are not technically feasible or potentially availableno feasible alternative exists as required by Application and Review Guideline E.13. a.Open space zones and lots (except as noted in Location Guideline A.1.). b.Residential zones or areas (except as noted in Location Guideline A.1). c.Major power transmission towers in corridors located in/or next to a residential zone or area. d.Environmentally sensitive habitat. e.Public right-of-way of roads not identified on the map attached as Exhibit A. f.On vacant land. 3.Visibility to the Public – In all areas, WCFs should be located where least visible to the public and where least disruptive to the appearance of the host property. Furthermore, no WCF should be installed on an exposed ridgeline or in a location readily visible from a public place, recreation area, scenic area or residential area unless it is satisfactorily located and/or screened so it is hidden or disguised. 4.Collocation – Collocating with existing or other planned wireless communication facilities is recommended whenever feasible and appropriate. Service providers are also encouraged to collocate with water tanks, major power transmission and distribution towers, and other utility structures when in compliance with these guidelines. The city Dec. 14, 2021 Item #16 Page 125 of 252 must approve collocation applications unless the expansion adds significantly to the height or width of a facility. 5. Monopoles – No new ground-mounted WCF monopoles should be permitted unless the applicant demonstrates no existing monopole, building, or structure can accommodate the applicant’s proposed antenna as required by Application and Review Guideline E.4. B. Design Guidelines for WCFs and SWFs Outside the Public Right-Of-Way of Roads 1. Stealth Design – All aspects of a WCFs and SWFs, including the supports, antennas, screening methods, and equipment should exhibit “stealth” design techniques so they visually blend into the background or the surface on which they are mounted. Subject to city approval, developers should use false architectural elements (e.g., cupolas, bell towers, dormers, and chimneys), architectural treatments (e.g., colors, textures and materials), elements replicating natural features (e.g., trees and rocks), landscaping, and other creative means to hide or disguise WCFsthe facilities. Stealth can also refer to facilities completely hidden by existing improvements, such as parapet walls. 2. Equipment – Equipment should be located within existing buildings to the extent feasible. If equipment must be located outside, it should be screened with walls and plants. If small outbuildings or extensions to existing structures are constructed specifically to house equipment, they should be designed and treated to match nearby architecture or the surrounding landscape. 3. Collocation – Whenever feasible and appropriate, WCF design and placement should promote and enable collocation. 4. Height – WCFs facilities should adhere to the existing height limitations of the zone in which they are located. When installed on an existing structure, new facilities and collocations should not exceed the height of the existing/replacement structure on which they are being installed. 5. Setbacks – WCFs and SWFs, including all equipment and improvements, should adhere to the building setback requirements of the zone in which they are located, with the following clarifications: a. If on a site next to a residential zone, the WCF should bea set back should be maintained from the residential zone boundary a minimum distance equal to the above-ground height of the overall support structure’s height. b. If in a residential zone and in a public utility installation, park, or community facility, the WCF should bea set back should be maintained from the property boundaries of the utility installation, park, or community facility a minimum distance equal to the above-ground height of the overall support structure’s height. c. The Planning Commissiondecision-maker for WCFs may decrease or increase these setbacks if it finds such changes would improve the overall compatibility of the WCF based on the factors contained in Application and Review Guideline E.4. 6. Building or Structure-Mounted WCFs and SWFs: – Dec. 14, 2021 Item #16 Page 126 of 252 a. Antennas and their associated mountings should generally not project outward more than 24 inches from the face of the building. b. Roof-mounted antennas should be located as far away as possible from the outer edge of a building or structure and should not be placed on roof peaks. c. If permitted, WCFs and SWFs on residential buildings should only be allowed if disguised as a typical residential feature (e.g., a chimney, a dormer) and if all equipment is located inside, not outside, the building. 7. Ground-mounted Monopole WCFs –: a. All antennas should be mounted as close as possible to the monopole to improve facility appearance. b. The placement, screening, and disguise of the monopole should fit with the surrounding site design, architecture, and landscaping. Tree disguises, such as a “mono-palm,” may be acceptable depending on their quality and compatibility with landscaping nearby. c. Landscaping should be provided as necessary to screen, complement, or add realism to a monopole. Landscaping should include mature shrubs and trees. Some of the trees should be tall enough to screen at least three-quarters of the height of the monopole at the time of planting. Sometimes, landscaping may not be needed because of the monopole’s location or vegetation already nearby. d. When possible and in compliance with these guidelines, monopoles should be placed next to tall buildings, structures, or tall trees. 8. Pole mounted SWFs shall comply with the Design Guidelines in section C.2 of this policy as applicable, including height limits. 8.9. Lattice Towers – New lattice towers should not be permitted in the city. On existing lattice towers: a. New lattice towers should not be permitted in the city. a. On existing lattice towers, All antennas should be mounted as close as possible to the tower so they are less noticeable, and should match the color of the tower. b. Wiring must be concealed in conduit that is flush-mounted to the tower. The conduit and mounting hardware shall match the color of the tower. b.c. Non-antenna equipment mounted on the tower should be placed behind the antennas to conceal them from view, and should be enclosed in a cabinet that matches the color and finish of the structures on which they are mounted. Ground mounted equipment shall comply with B.2 above. 9.10. Undergrounding – All utilities should be placed underground. 10.11. Regulatory Compliance – WCFs should comply with all FCC, FAA (Federal Aviation Administration), CPUC (California Public Utilities Commission) and local zoning and building code requirements. C. Design Guidelines for WCFs and SWFs in the Public Right-of-Way of Roads Dec. 14, 2021 Item #16 Page 127 of 252 The general intent of these design and development standards is to preserve the character of the city’s neighborhoods and corridors by requiring WCFs and SWFs to utilize the least intrusive design available with regard to appearance, size, and location, and to blend into the existing streetscape as much as possible. They also seek to prevent conflict with existing and planned roadway, utility, and storm drain improvements. 1. Support pole installation preferences for the right-of-way of roads a. The city prefers small wireless facilitiesWCFs and SWFs to be installed on support poles in the public rights-of- way of roads, ordered from most preferred to least preferred, as follows: (1) Existing or replacement streetlight poles. (2) Existing or replacement wood utility poles. (3) Existing or replacement traffic signal poles. (4) New, non-replacement streetlight poles. (5) New, non-replacement poles (not wood). b. The city prohibits WCFs and SWFs facilities to be installed on the following support poles or structures: (1) Signs. (2) Any utility pole scheduled for removal or relocation within 12 months from the time the approval authority acts on the small wireless facility application. (3) New, non-replacement wood poles. (4) Pieces of public art, structures placed in the in the right-of-way through charitable donations, commemorative memorial structures or archways over roads and pedestrian walkways, or other similar structures as determined by the engineering manager. c. The engineering manager shall determine whether an application for a WCF or SWF utilizes the least intrusive design available or if there is a more preferred support pole type within 500 feet of the proposed location. For purposes of these guidelines, least intrusive design available means the most preferred design or development standard as provided in these Guidelines that is technically feasible. For individual antennas, shrouds/radomes, accessory equipment, mounting brackets/attachments and any other physical aspect of a facility, the city strongly prefers the smallest such item that is technically feasible. If the application does not propose the least intrusive design, or if there is a more preferred support pole within 500 feet, the application shall provide written evidence of the following: (1) A clearly defined technical service objective (1)(2) A technical analysis that includes the factual reasons why the least intrusive design or a more preferred support pole type within 500 feet of the proposed location is not technically feasible. 1.2. WCFs on Existing and Replacement PolesRequirements applicable to all WCFs and SWFs in the public right-of-way of roads a. The use of an existing pole, replacement pole or other existing structure shall require the authorization of the owner of the pole or structure. b. The antenna assembly may not exceed four feet above the height of the existing pole. Dec. 14, 2021 Item #16 Page 128 of 252 c. The antenna(s) associated with the installation shall be concealed with a radome that also conceals the cable connections, antenna mount, and other hardware. d. All pole-mounted equipment shall be painted to match the color of the surface of the pole on which they are attached or shall otherwise be screened to reduce their visibility. a. Overall height. WCFs and SWFs mounted to existing poles shall not exceed the height of a support pole by more than five feet measured from the top of the pole, except as necessary to comply with CPUC General Order 95 relating to utility poles. Replacement poles and new non-replacement poles shall not exceed the city height standards for streetlight poles or traffic signal poles, as applicable, by more than ten percent, plus five feet for the antenna. Replacement utility poles shall not exceed ten percent of the height of the existing utility pole, plus five feet for the antenna. b. Antenna stealth/concealment. The antenna(s) associated with the installation shall be stealth to the maximum extent feasible and concealed with a radome(s), shroud(s) or other cover(s) that also conceals the cable connections, antenna mount, and other hardware. The radome, shroud or other cover must be a flat, non-reflective color to match the underlying support structure. c. Antenna size. (1) Each antenna shall not exceed 3 cubic feet in volume. Mounting arms, hardware, and concealment elements are included in the antenna volume limits. (2) Top-mount antennas (including the shroud) shall be no more than 16 inches wide when placed on light poles, and shall not exceed the width of any wooden utility pole on which they are mounted. (3) Any top-mounted antennas which are wider than the light pole on which they are mounted shall be tapered to match the width of the pole at the point of attachment to the pole. d. Equipment location. Accessory equipment may be both pole mounted and non- pole mounted. Pole mounted limits are described in Section C.2.e , the balance located according to the following preference: (1) underground, (2) above ground and screened consistent with Section C.2.f. The city’s preferences is for non-pole mounted equipment to be placed underground to the extent possible, unless the applicant demonstrates that it is technically infeasible or there are conflicts with other utilities, obstructions or it is otherwise not feasible, as determined by the engineering manager. If undergrounding is not feasible, the city prefers the equipment to be pole-mounted. e. Pole mounted equipment. (1) Design and stealth/concealment. Accessory equipment must be stealth to the maximum extent feasible and/or concealed within a cabinet or shroud, and should be flush mounted and centered on the pole, except to the extent necessary to comply with CPUC General Order 95 for wood utility poles. The installation should be designed to minimize the overall visual profile, and installations that are partially or completely wrapped around the pole are encouraged. All equipment cabinets or shrouds shall be painted to match the color of the surface of the pole on which they are attached to reduce their visibility. Equipment may be installed behind street, traffic or other signs (between the pole and sign) to the extent Dec. 14, 2021 Item #16 Page 129 of 252 that the installation complies with applicable regulations. All cables and conduits associated with the equipment shall be concealed from view within the same shroud or other cover and routed directly through the pole when feasible. Microwave or other wireless backhaul shall not have a separate and unconcealed antenna. (2) Size limits. All non-antenna equipment mounted to the pole is included in the equipment volume limit. Electric meters and disconnect switches that are mounted on the pole are not included in the equipment volume limit. All pole mounted non-antenna equipment, including cabinets, shall not exceed: (a). A width of 24 inches; and (b). Nine (9) cubic feet in volume if installed within or adjacent to a residential district or within 500 feet from any structure approved for a residential use; or (c). Seventeen (17) cubic feet in volume if installed within or adjacent to a non-residential district. f. Ground mounted equipment. If underground equipment is not feasible because there are conflicts with other utilities, obstructions or it is otherwise not technically feasible, as determined by the engineering manage per section (d) above, then all above ground equipment shall be: (1) placed in a ground-mounted equipment shroud or cabinet that contains all equipment associated with the small wireless facility other than the antenna; and (2) set back at least 2.5 feet from the back of the curb and within the parkway or greenway or 2.5 feet back from the edge of the sidewalk when it is contiguous to the curb. All cables and conduits associated with the equipment shall be concealed from view, routed directly through the pole, and placed underground between the pole and the ground-mounted cabinet. All ground mounted equipment shall be stealth and/or screened completely, unless it is disguised to the satisfaction of the engineering manager. Volume limits for ground-mounted equipment shall be the same as applicable to pole-mounted equipment. The engineering manager may elect to waive volumetric limits for equipment that is installed or placed underground. g. All equipment associated with the WCF or SWF shall be located so as to avoid impacts to pedestrian access and vehicular site distance and safety. Pole mounted equipment should be mounted a minimum of eight feet above grade. h. To reduce clutter and deter vandalism, excess fiber optic or coaxial cables shall not be spooled, coiled, or otherwise stored on the pole unless concealed within a cabinet. i. If the proposed WCF or SWF would damage or displace any street trees or trees on public property, the applicant shall comply with CMC Chapter 11.12 and City Council Policy No. 4 and will be responsible for planting replacement trees to the satisfaction of the Parks & Recreation Director or designee. j. If an applicant proposes to replace a streetlight pole, the replacement pole should be substantially similar to the existing pole and comply with city standards and specifications for streetlight poles. 2.3. WCFs Supplemental requirements for WCFs and SWFs on New Poles for the right-of-way of roads a. All WCFs on new poles require a CUP by Process 2. Dec. 14, 2021 Item #16 Page 130 of 252 b. No more than one new pole per block will be permitted unless the applicant demonstrates with clear and convincing evidence that: (1) no other existing structures are available to the applicant; (2) a new pole or structure is essential to providing coverage; and (3) the new pole or structure is the least intrusive means in terms of design and placement to reasonably achieve the applicant’s technical objective. b. The centerline of any new pole must be aligned with the centerlines of existing poles on the same sidewalk segment. Any new pole and/or equipment and other improvements associated with a new pole or an existing pole must be set back from intersections, alleys, and driveways and placed in locations where it will not obstruct motorists’ sight lines or pedestrian access. In general, there is a presumption of no obstruction where a new pole and/or equipment is set back at least: i. A minimum of 50-feet from the extension of the curb of the intersecting street at intersections. Distances of less than 50-feet may be allowed through approval of the city engineer and the city traffic engineer(1) 50 feet from any intersection; ii. (2) six Six feet from any driveway cut or alley entrance or exit; i.iii. (3) and six Six feet from any permanent object or existing lawfully-permitted encroachment in the public right-of-way, including without limitation bicycle racks, traffic signs and signals, trees, open tree wells, benches or other street furniture, streetlights, door swings, gate swings, or sidewalk café enclosures. c. The city may, in its discretion, require an additional setback for a specific pole when the city determines that the presumptively acceptable setback would obstruct motorists’ sight lines or pedestrian access. d. The city may require the applicant to install a stealth pole, which may include without limitation functional streetlights and/or banners when technically feasible and the city determines that such additions would enhance the overall appearance and usefulness of the new pole. e. New poles shall not exceed the height limit for the zoning district nearest to the base of the pole or the average height of poles within a 300-foot radius, whichever is less.The city will consider new pole designs proposed by an applicant if they meet the intent of this policy for stealth and attractive designs that adequately conceal equipment, as determined by the engineering manager. If a new pole without a streetlight is proposed, antennas and all equipment not installed underground must be concealed and integrated into the overall design of the pole, no exterior equipment boxes or shrouds attached to the pole will be permitted. 4. Areas with decorative streetlight poles. a. Replacement poles and new non-replacement poles installed within the following areas shall be substantially similar in color, style and design to the existing decorative streetlights, as determined by the engineering manager in consultation with the city planner. Poles in each area shall use a single consistent design theme to maintain the existing character established by existing streetlights: (1) Carlsbad Village (2) Villages of La Costa Master Plan (3) Bressi Ranch Master Plan (4) La Costa Master Plan (MP 149) (5) Various roads including El Camino Real and Aviara Parkway that utilize the mission bell streetlight design Dec. 14, 2021 Item #16 Page 131 of 252 (6) Any other areas as determined by the city planner or engineering manager 5. Supplemental requirements for WCFs and SWFs on existing wood utility poles. a. All antennas must be installed within a radome, shroud or other cover mounted to the pole at the top, side, or on a stand-off bracket or extension arm that is attached to the pole. The city’s preference is for side-mounted antennas located in the communications space below the electric lines.1 b. All cables, wires and other connectors must be concealed within the antenna shroud, stand-off bracket/extension arm and conduit that is flush-mounted to the pole to the maximum extent feasible and of the smallest diameter and shortest length necessary to serve the facility. No loose, exposed, or dangling wiring or cables shall be allowed. c. All shrouds, conduit or other items stealth/concealing antennas, equipment and wires shall be painted to match the color of the pole. a. 3. Design Guidelines Applicable to WCFs on Existing and New Poles Each antenna shall not exceed 3 cubic feet in volume; the cumulative antenna volume per pole shall not exceed 6 cubic feet. Mounting arms, hardware, and concealment elements such as shrouds, radomes, or other covers are included in the antenna volume limits. All other equipment associated with the WCF shall not exceed 6.5 cubic feet in volume. All non- antenna equipment including ground-mounted meter pedestals and concealment elements such as shrouds and cages, are included in the equipment volume limit. Electric meters and disconnect switches that are mounted on the pole and any equipment placed underground are not included in the equipment volume limit. Equipment shall be placed underground in discouraged locations. If it can be demonstrated that complete undergrounding of associated equipment is not possible, waiver requests involving landscaping or other screening techniques or visual mitigation will be considered. All equipment not placed underground shall be: (1) placed in a ground-mounted equipment shroud or cabinet that contains all equipment associated with the WCF other than the antenna; and (2) set back at least 2.5 feet from the back of the curb and within the parkway or greenway or 2.5 feet back from the edge of the sidewalk when it is contiguous to the curb. All cables and conduits associated with the equipment shall be concealed from view, routed directly through the pole, and placed underground between the pole and the ground-mounted cabinet. All equipment associated with the WCF shall be located so as to minimize impacts to pedestrian access and vehicular site distance and safety. Cabinets for appurtenant telephone and/or fiber optic utilities may not extend more than 10 inches beyond the pole centerline on either side, and must be painted, wrapped, or otherwise colored to match the pole. Microwave or other wireless backhaul shall not have a separate and unconcealed antenna. b.d. To reduce clutter and deter vandalism, excess fiber optic or coaxial cables shall not be spooled, coiled, or otherwise stored on the pole whether in a cabinet or not. D. Performance Guidelines 1 Strand-mount antennas are also considered a preferred installation type. Dec. 14, 2021 Item #16 Page 132 of 252 1. Noise – All equipment, such as emergency generators and air conditioners, should be designed and operated consistent with the city noise standards. 2. Maintenance – All facilities, related equipment, and landscaping should be maintained in good condition and free from trash, debris, graffiti, and any form of vandalism. All required landscaping should be automatically irrigated. Damaged equipment and damaged, dead, or decaying landscaping should be replaced promptly. Replacement of landscaping that provides facility screening should be, as much as possible, of similar size (including height), type, and screening capability at the time of planting as the plant(s) being replaced. 3. Maintenance Hours – Except in an emergency posing an immediate public health and safety threat, maintenance activities in or within 100 feet of a residential zone should only occur between 7 AM (8 AM on Saturdays) and sunset. Maintenance should not take place on Sundays or holidays. 4. Lighting – Security lighting should be kept to a minimum and should only be triggered by a motion detector where practical. 5. Compliance with laws and FCC RF Exposure Guidelines – The permittee shall maintain compliance at all times with all federal, state and local statutes, regulations, orders or other rules that carry the force of law (“laws”) applicable to the permittee, the subject property, the WCR, SWF or other infrastructure deployment or any use or activities in connection with the use authorized by a required permit, which includes without limitation any laws applicable to human exposure to RF emissions and any standards, specifications or other requirements identified by the city planner or engineering manager (such as, without limitation, those requirements affixed to a required permit). If the city planner or engineering manager finds good cause to believe that the facility is not in compliance with any laws applicable to human exposure to RF emissions, the city planner or engineering manager may require the permittee to submit a written report certified by a qualified radio frequency engineer familiar with the facility that certifies that the facility is in compliance with all such laws. The city planner or engineering manager may order the facility to be powered down if, based on objective evidence, the city planner or engineering manager finds that the facility is in fact not in compliance with any laws applicable to human exposure to RF emissions until such time that the permittee demonstrates actual compliance with such laws. The permittee expressly acknowledges and agrees that this obligation is intended to be broadly construed and that no other specific requirements in these conditions are intended to reduce, relieve or otherwise lessen the permittee’s obligations to maintain compliance with all laws. No failure or omission by the City to timely notice, prompt or enforce compliance with any applicable provision in the Carlsbad Municipal Code, this Policy, any permit, any permit condition or any applicable law or regulation, shall be deemed to relieve, waive or lessen the permittee’s obligation to comply in all respects with all applicable provisions in the Carlsbad Municipal Code, this Policy, any permit, any permit condition or any applicable law or regulation. Within six (6) months after the issuance of occupancy, and with each time extension or amendment request, the developer/operator should submit to the City Plannereither verification that the WCF is categorically excluded from having to Dec. 14, 2021 Item #16 Page 133 of 252 determine compliance with the guidelines per 47 CFR §1.1307(b)(1) or a project implementation report that provides cumulative field measurements of RF electromagnetic fields of all antennas installed at the subject site. The report should quantify the RF emissions and compare the results with currently accepted ANSI/IEEE standards as specified by the FCC. The City Planner should review the report for consistency with the project’s preliminary proposal report submitted with the initial project application and the accepted ANSI/IEEE standards. If, on review, the City Planner finds the project does not meet ANSI/IEEE standards, the city may revoke or modify the CUP. 6. Abandonment of antennas and equipment- Any WCF or SWF that is not operated for a continuous period of 180 days will be considered abandoned. Within 90 days of receipt of notice from the city notifying the owner of such abandonment, the WCF facility owner must remove the facility and restore the site, as much as is reasonable and practical, to its prior condition. If such WCF facility is not removed within the 90 days, the WCF facility will be considered a nuisance and in addition to any other available remedy, will be subject to abatement under Chapter 6.16 of the Carlsbad Municipal Code. If there are two or more users of a single WCF, then this provision will not become effective until all users stop using the WCF. The provider or owner must give notice to the city of the intent to discontinue use of any facility before discontinuing the use. E. Application and Review Guidelines 1. Application requirements for WCFs. BesidesIn addition to the typical submittal requirements for a CUP or Minor CUP (see Planning Division Form P-2), right-of-way permit or building permit (including plans, landscape details, and color and material samples, as appropriate), all WCF applications should shall include the following items: a. A description of the site selection process undertaken for the WCF proposed. Coverage Technical service objectives and the reasons for selecting the proposed site and rejecting other sites should be provided. b. A description or map of the applicant’s existing and other proposed sites. c. A description of the wireless system proposed (e.g., cellular, PCS, etc.) and its consumer features (e.g., voice, video, and data transmissions). d. Verification that the proposed WCF will either comply with the FCC’s guidelines for human exposure to RF electromagnetic fields or will be categorically excluded from having to determine compliance with the guidelines per 47 CFR §1.1307(b)(1). If WCFs are proposed for collocation, the verification must show the total exposure from all facilities taken together meets the FCC guidelines. The applicant shall submit an RF exposure compliance report that certifies that the proposed facility, both individually and cumulatively as applicable under 47 C.F.R. § 1.1307(b)(5)with all other emitters in the vicinity, will comply with applicable federal RF exposure standards and exposure limits. e. Color photo-simulation exhibits, prepared to scale, of the proposed WCF to show what the project would look like at its proposed location and from surrounding viewpoints. The City Planner or Eengineering Mmanager may waive the requirement to provide the exhibits if he/she determines they are unnecessary. e.f. Provide confirmation that an environmental assessment, or other application determination, has been completed by or on behalf of the FCC for any facility Dec. 14, 2021 Item #16 Page 134 of 252 proposed in a location identified in 47 C.F.R. 1.307 (including a floodplain) or as otherwise required by National Environmental Policy Act or the National Historic Preservation Act. 2. Application requirements for SWFs. In addition to the typical submittal requirements for a right-of-way permit or building permit (including plans, landscape details, and color and material samples, as appropriate), all SWF applications shall include the following items: a. A description of the wireless system proposed (e.g., cellular, PCS, etc.) and its consumer features (e.g., voice, video, and data transmissions). b. For new poles that are least preferred, a description of the site selection process undertaken for the proposed SWF. A technical service objective and the reasons for selecting the proposed site and rejecting other sites should be provided. c. Verification that the proposed SWF will either comply with the FCC’s guidelines for human exposure to RF electromagnetic fields or will be categorically excluded from having to determine compliance with the guidelines per 47 CFR §1.1307(b)(1). The applicant shall submit an RF exposure compliance report that certifies that the proposed facility, both individually and cumulatively as applicable under 47 C.F.R. § 1.1307(b)(5)with all other emitters in the vicinity, will comply with applicable federal RF exposure standards and exposure limits. d. Color photo-simulation exhibits, prepared to scale, of the proposed WCF to show what the project would look like at its proposed location and from surrounding viewpoints. The city planner or engineering manager may waive the requirement to provide the exhibits if he/she determines they are unnecessary. e. Environmental impact assessment form to determine whether the proposed project is categorically exempt under Article 19 of the CEQA Guidelines, or whether the proposed project will require a Negative Declaration, Mitigated Negative Declaration or an Environmental Impact Report. In addition, provide confirmation that an environmental assessment, or other application determination, has been completed by or on behalf of the FCC for any facility proposed in a location identified in 47 C.F.R. 1.307 (including a floodplain) or as otherwise required by National Environmental Policy Act or the National Historic Preservation Act. 2.3. For WCFs proposed in a zone or area that is a discouraged WCF location as listed in Location Guideline A.2., the applicant should shall provide evidence that no location in a preferred zone or area as listed in Location Guideline A.1. is technically feasible or potentially available to can accommodate the applicant’s proposed facility. Evidence should document that preferred zone or area locations do not meet engineering, coverage, location, or height requirements, or have other unsuitable limitations. 3.4. For proposed new ground-mounted monopole WCFs, the applicant should shall also provide evidence to the city’s satisfaction that no existing monopole, building, structure, or WCF site (“existing facility”) could accommodate the proposal. Evidence should demonstrate any of the following: a. No existing facility is located within the geographic area or provides the height or structural strength needed to meet the applicant’s engineering requirements. Dec. 14, 2021 Item #16 Page 135 of 252 b. The applicant’s proposed WCF would cause electromagnetic interference with the existing antennae array or vice versa. c. The fees, costs, or contractual provisions required by the owner to locate on an existing facility or to modify the same to enable location are unreasonable. Costs exceeding new monopole development are presumed to be unreasonable. d. The applicant demonstrates to the decision-maker’s (Planning Commission or City Plannercity planner) satisfaction that there are other limiting factors that render an existing facility unsuitable. 4.5. In approving a WCF or SWF, the decision-maker (Planning Commission, city planner or engineering manager) shall make the findings in Carlsbad Municipal Code Section 21.42.020 if applicable, and shall give consideration to In considering a CUP for a WCF, the decision-maker (Planning Commission or City Planner) should consider the following factors: a. Compliance with these guidelines. b. Height and setbacks. c. Proximity to residential uses. d. The nature of uses on adjacent and nearby properties. e. Surrounding topography and landscaping. f. Quality and compatibility of design and screening. g. Impacts on public views and the visual quality of the surrounding area. h. Availability of other facilities and buildings for collocation. 5.6. Conditional Use Permits (CUPs)/Minor CUPs for WCFs shall be granted for a period not to exceed ten years unless public safety reasons and/or substantial land use reasons justify a shorter term. A WCF that is decommissioned, discontinued, or otherwise abandoned by the owner or operator for a continuous one-year period is subject to revocation under Section 21.42.120 of the Carlsbad Municipal Code. Upon a request for either an extension or an amendment of a CUP or Minor CUP, the WCF should will be reevaluated to assess the impact of the facility on adjacent properties, the record of maintenance and performance with reference to the conditions of approval, and consistency with these guidelines. Additionally, the city should will review the appropriateness of the existing facility’s design, and that the applicant should be required to documented that the WCF maintains the design that is the smallest, most efficient, and least visible and that there are not now more appropriate and available locations for the facility, such as the opportunity to collocate or relocate to an existing building. 6.7. Collocation for WCFs. Pursuant to California Government Code Section 65850.6, qualifying collocation facilities for WCFs shall not be approved with a conditional use permit or conditional use permit amendment. This section does not apply to SWFs.For the purposes of collocation, the following definitions apply: a. For the purposes of collocation, the following definitions apply: (1) “Collocation facility” means the placement or installation of WCFs, including antennas, and related equipment, on or immediately adjacent to, a wireless telecommunications collocation facility. Dec. 14, 2021 Item #16 Page 136 of 252 (2) “Wireless telecommunications facility” means equipment and network emergency power systems that are integral to providing wireless telecommunications services. (3) “Wireless telecommunications collocation facility” or “WTCF” means a wireless telecommunications facility that includes Collocation facilities. b. A building permit conditional use permit shall not be required for a proposed WCF Collocation facility which will be placed on a previously approved WTCF provided that: (1) The new WCF Collocation facility is consistent with requirements for the existing WTCF installation; and (2) The modification of an existing wireless tower or base station does not physically change the dimensions of such tower or base station. c. Approval of an application to construct or reconstruct a WCF wireless facility shall not require an escrow deposit for removal of the WCF Collocation facility or any component thereof. d. Notwithstanding subsection (b) above, the city may require a performance bond or other surety or another form of security if the amount required is rationally related to the cost of removal. 8. Applications from a single provider of wireless communication services for up to 10 SWF permits to locate WCFs on existing or replacement poles in the right-of-way, and meeting the criteria for right of way permits, may be batched and processed together. A single provider may not submit more than one batch of applications at one time. Batched applications will only be accepted prior to 4:00pm Monday through Thursday. 9. Applications must be submitted in-person and with an appointment. Application materials delivered by U.S. mail or other delivery service will not be processed and do not constitute a submitted and duly filed application. An application is not considered duly filed and submitted unless it is provided in-person to a representative of the Community Development Department and assigned a case number or permit number as appropriate. 10. SWFs that propose to use an existing pole, replacement pole or other existing structure shall be required to provide authorization from the pole or structure owner. Authorization may include signatures, letters, agreements or other similar methods acceptable to the city planner or engineering manager. Authorization from the owner in connection with joint utility poles may be evidenced by documentation that shows that authorization has been granted in accordance with the joint pole committee’s rules, which may include authorization deemed granted by lapse of time. 11. Exceptions to this policy. The city may grant an exception to the requirements of this policy but only to the extent necessary to avoid conflict with applicable federal or state law. When the applicant requests an exception, the approval authority shall consider the findings in subsection (a) of this section. Each exception is specific to the facts and circumstances in connection with each application. An exception granted in one instance shall not be deemed to create a presumption or expectation that an exception will be granted in any other instance. Dec. 14, 2021 Item #16 Page 137 of 252 a. The decision maker may grant an exception to any provision or requirement in this policy only if the decision maker finds that: (1) A denial based on the application’s noncompliance with a specific provision or requirement would violate federal law, state law or both; or (2) A provision in this policy, as applied to the applicant, would violate any rights or privileges conferred on the applicant by federal or state law. b. If the decision maker finds that an exception should be granted, the exception shall be narrowly tailored so that the exception deviates from this policy to least extent necessary for compliance with federal or state law. c. The applicant shall have the burden to prove to the decision maker that an exception should be granted pursuant to this section. The standard of evidence shall be the same as required by applicable federal or state law for the issue raised in the applicant’s request for an exception. 12. Pre-Application Meetings. Federal laws and policies establish time limitations (referred to as a “shot clock”) related to processing of all types of WCFs and SWFs permits. The city is required to act on a WCF or SWF permit within the established shot clock timeframes. Pre-application meetings are strongly encouraged in order to ensure that proposed facilities comply with the requirements of these Guidelines and that application materials include adequate and accurate information. A pre-application meeting is voluntary and is intended to streamline the review process through informal discussion between the potential applicant and staff that includes, without limitation, the appropriate project classification and review process; any latent issues in connection with the proposed project, including compliance with generally applicable rules for public health and safety; potential concealment issues or concerns (if applicable); coordination with other city departments responsible for application review; and any foreseen application completeness issues. 13. Pre-approved designs. To expedite the review process, encourage collaborative designs among applicants and the city, and ensure cohesive and high-quality designs for new or replacement poles in areas such as those with decorative streetlights, the engineering manager in consultation with the city planner, may designate one or more pre-approved designs for small wireless facilities and other infrastructure deployments. a. Any applicant may propose a design for consideration as a pre-approved design. The city may, in its discretion, establish a pre-approved design when the proposed pre-approved design exceeds the design guidelines in this policy. b. The city may modify or repeal any pre-approved design by written notice to any applicants who have used the pre-approved design, and by posting the notice at the Land Use Engineering counter. The modification or repeal shall be effective immediately. c. Any applicant may propose to use any pre-approved design whether the applicant initially requested that the city adopt such pre-approved design or not. The city’s decision to adopt a preapproved design expresses no preference or requirement that applicants use the specific vendor or manufacturer that fabricated the design depicted in the pre-approved plans. Any other vendor or manufacturer that fabricates a facility to the standards and specifications in the pre-approved design with like materials, finishes and overall quality shall be acceptable as a pre-approved design. Dec. 14, 2021 Item #16 Page 138 of 252 14. A master license agreement or other authorization is required prior to permit submittals for WCF or SWF installations that will locate on city-owned property or facilities. 15. At the time of filing the application, the applicant shall pay all applicable fees contained in the most recent fee schedule adopted by the city council. 16. An applicant may voluntarily elect to defer submittal of any permit or agreement which is otherwise required as part of a whole application. The voluntary deferral of any such permit or agreement shall toll the shot clock on that item. Once the voluntarily deferred item is received, the city will provide comments on any deferred submittal in the same manner as if it was a new application. The city will continue to process all other permits and agreements that are not deferred. SEVERABILITY: If any sections, subsections, sentence, clause, or phrase of the policy is for any reason held to be invalid or unconstitutional by the decision or legislation of any court of competent jurisdiction, or by reason of preemptive legislation, such decision or legislation shall not affect the validity of the remaining portions of the policy. The City Council declares that it would have approved this policy, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that one or more of the sections, subsections, sentences, clauses, or phrases thereof is declared invalid or unconstitutional. These Guidelines have been adopted, and may be amended, by resolution of the City Council. Revisions to address clerical errors may be made administratively by the Director of Community Development. Dec. 14, 2021 Item #16 Page 139 of 252 pAC/FfC OCEAN ·: ,.!""7 LAKE I CALAVERA I I L __ r ,~ --Preferred Locations for Placement of WCF in the ROW .......... Railroad -FREEWAY L. ' I ' ·,_J '---' 0 ■ --==1Miles Q .r,\Req:ies:,f,1:il(;h20t .S\CcmEmiiOel.PlaMill9'\00023706 _ 16\Pdicyl!ARO"Vhf 01\' F _ 8x Jed, caJ0812Gt7 Exhibit A ~ Preferred Locations for Placement of Wireless ~epter&Jt ~l !IB4flication Facilities i1QJ~~ Rioot~fr~y Dec. 14, 2021 Item #16 Page 140 of 252 # Topic Option Staff Analysis and Recommendation 1 Collocation Allow SWF collocations for up to two facilities on one support pole. Allowing collocations would maximize usage of existing poles and minimize the number of new poles, which could be an aesthetic benefit in the sense of less new poles in the ROW. Staff recommendation is neutral for this option. As an aesthetic matter, multiple SWFs on a single streetlight or utility pole can get messy as there are only so many places you can put or hide boxes and antennas on a 30-foot pole. Also, as a practical matter, carriers prefer not to share poles for SWFs. Once a pole is occupied by one provider, it is unlikely another one would want to share. The most common approach is the one currently drafted in this policy: favoring collocation with large facilities on private property and disfavoring collocations of multiple SWFs on a single pole, primarily for aesthetic reasons. 2 Pole type preference Simplify pole type preference list in C.1.a to the following – existing vs. new poles and establish a preference for existing poles. Staff does not recommend this option. The revised preference list accomplishes what is suggested by this option. The proposed preference list establishes a preference for existing traffic lights below existing streetlights and utility poles, which can potentially limit installations on traffic lights when feasible. 3 Technical experts or consultants Reserve the option to hire outside experts or consultants to review application materials, including RF reports, to verify accuracy and compliance with local and FCC requirements Staff recommends this option. Staff may not have the expertise or capacity to adequately review all technical aspects of an application, and if application volumes increase, workload capacity could be a problem. If this option is selected, staff could bring back a proposal for City Council consideration. Exhibit 4 Dec. 14, 2021 Item #16 Page 141 of 252 # Topic Option Staff Analysis and Recommendation 4 Placement in residential areas Apply the location preferences in Section A to SWFs. Some public comments requested a prohibition on SWFs in the ROW adjacent to a residential front yard setback. Staff does not recommend this as it would likely result in a prohibition of service. A better option would to apply the location preferences in Section A to SWFs as described below. Staff recommendation is neutral for this option. The location preferences in Section A express the City’s aesthetic values in preserving residential neighborhood character. The preferences also take into consideration the limitations on local authority under federal law because cities cannot prohibit or effectively prohibit the provision of personal wireless or telecommunications services. Setback requirements or prohibitions are more likely to be unenforceable and/or cause the City to violate federal law. Applying the location preferences in Section A would strike a more appropriate balance between complying with law and preserving the residential character of the City’s neighborhoods. If this option is selected, applicants may be required to demonstrate that alternatives in more- preferred locations are not technically feasible or potentially available, and through this method they could locate in a non-preferred residential ROW. In addition, to the extent that any regulation is not technically feasible, the applicant may seek an exception under Section E.11 6 Annual Reports Require carriers submit annual reports to the city on all facilities within the city and current status. Staff recommends this option. Reporting requirements have been included in other jurisdictions. The annual report could ask for verification that facilities are within FCC limits. The following language could be added to Policy 64: “Prior to July 1 of each calendar year, each Small Wireless Facility provider should provide documentation identifying the location of each facility in the right-of-way within the city; including those approved but not built.” Dec. 14, 2021 Item #16 Page 142 of 252 # Topic Option Staff Analysis and Recommendation 7 Noticing Requirements Add noticing requirement as part of an application for a Small Wireless Facility Staff recommends adding as a requirement on cell providers to provide notice. However, any notice will still be subject to the updated Policy 64 requirements allowing construction of the facilities consistent with FCC regulations. “Any application for a new or co-located SWF shall include evidence of compliance with the following notice requirements, a notice of intent to request a permit for a new SWF shall be provided to all property owners within 300 feet of the proposed facility.” 8 Change distance required for evaluation of other poles The draft policy includes a requirement that applications consider other more preferred pole types within 500 feet of the proposed location. During public review, one comment recommended that this be modified to 200 feet. Staff recommendation is neutral. Small Wireless Facilities provide service to smaller areas and are often used to fill capacity needs rather than provide broad coverage. 9 Insurance and indemnification The City could consider adopting additional insurance and indemnification requirements for applicants not subject to a master license agreement (MLA). Staff recommends this option. The city requires insurance and indemnification as part of it’s MLA for wireless communication facilities located on city owned facilities, such as a streetlight or traffic sign. Facilities installed on electric utility poles or on new poles that the City does not own would not be protected under the MLA. The City may wish to consider adopting insurance and indemnification requirements in the Policy to fill this gap. Dec. 14, 2021 Item #16 Page 143 of 252 Ref # Policy 64 Section # Comment Response V1 C(1)(a) Support pole preferences. If strictly applied, the top preferences for City-owned streetlight and traffic signal poles would contradict California Government Code Section 65964(c) which bars local governments from limiting wireless facilities to sites owned by particular parties. Small cell equipment is not “out-of-character” on utility poles, and structure preferences used to deny this option would be unreasonable under the FCC's Small Cells Order. To give utility poles equal footing, the preferences should simply favor existing/replacement poles over new poles. There are many areas of Carlsbad where streetlights are mounted to utility poles and there are no existing stand- alone streetlights that can be utilized. The pole type preference list in Section C.1.a was modified so that existing wooden utility poles are preferred over installing new streetlight poles. This allows utility poles to be the most preferred pole type in these areas of Carlsbad. An option for City Council consideration is added to Exhibit 5 that would simplify the pole type preference in C.1.a to prefer existing poles to new poles. The city disagrees that the existing preferences could contradict Gov. Code Section 65964(c) as the pole types only establish preferences and applicants are not limited to installations on city owned support poles. V2 C(1)(c) Review radius for preferred poles. Pursuant to the above comment, there should be no need to review alternatives within 500 feet if an applicant is using an existing/replacement pole. For new poles, we suggest adding an objective scope of review, allowing new poles if there is no existing pole within 200 feet along the subject right-of-way that is available and technically feasible to support a small cell. The City should not require "technical service objective" and related maps as feasibility factors, as the FCC has confirmed that small cells are needed to enhance services and to densify networks. Proposed Section C.1.c establishes a preference list for the types of support poles and requires an applicant to provide justification if a less preferred pole is chosen within 500 ft of a more preferred pole. Given that the small cell range is 400-500 ft., staff believes the 500 ft. distance is appropriate and that this requirement should be kept. The requirement for a map is deleted from the draft policy. However, the requirement to justify the use of a less preferred pole type is kept in the draft, and a technical service objective is needed to support the justification. Exhibit 5Dec. 14, 2021 Item #16 Page 144 of 252 Ref # Policy 64 Section # Comment Response V3 C(2)(b) Antennas in a radome/shroud. This is infeasible in two ways. First, 4G and 5G antennas must be vertically separated to avoid interference, rendering a single shroud to be infeasible due to excessive size. Second, in most circumstances, shrouds or radomes impede frequencies that Verizon Wireless recently licensed from the FCC for new wireless technology including 5G service, and such coverings are infeasible for signal propagation. Any antenna standards for right-of-way facilities must accommodate new higher- frequency facilities that integrate antennas and radios in one small box, and cannot impose shrouding. There should be an exception if technically infeasible. The language utilized here that the installation "shall be concealed with a radome, shroud or other cover..." implies a single shroud/radome. First, Verizon's millimeter wave frequency cannot be enclosed within a shroud or radome. We can utilize a flat, colored film that can conceal the antennas within a larger "shroud". It has cutouts/windows in the shroud to allow proper operation. But, to completely enshroud the antennas would render them inoperable; these frequencies cannot propagate through such physical barriers. Secondly, in instances where we may otherwise prefer to use a single pole with both 4G (in a top-mounted radome) and 5G (in a below- luminaire shroud with cutouts/filming) on the same pole, we may not be able to do so, depending on how the above- quoted language is interpreted by staff (i.e., "a radome, shroud or other cover" as tantamount to a 'single' such radome/shroud). The ultimate implication being that we may need to deploy a larger quantity of poles if we have to limit any given structure to just one frequency, versus combining them on one pole. Proposed Section C.2.b was modified to allow more than one shroud, radome or other cover as follows: “Shroud(s), radome(s), other cover(s)”. The policy’s use of the word “other cover” is flexible enough to allow for the use of colored films as suggested by the comment. Also, the draft proposes an exception for conflicts with law, which will allow applicants and staff to address technical feasibility issues. Dec. 14, 2021 Item #16 Page 145 of 252 Ref # Policy 64 Section # Comment Response V4 C(2)(c) Antenna cumulative volume limit of six cubic feet. While the FCC specifies a limit of three cubic feet for each antenna, it does not limit total volume. 47 C.F.R. § 1.6002(l). This should be stricken. Verizon's 5G antennas are antenna/radio integrations; it's all one unit. It would be helpful here for an allowance for millimeter wave antennas for the use of the applicable "accessory equipment" volumetric maximums to be added to the allowance for antennas alone, when calculating this volume. The six cubic foot limit was deleted from the draft. Collocation for up to two facilities was added as a policy option for City Council consideration in Exhibit 5. V5 C(2)(d) Equipment location, preference for underground. This section is unclear as to whether undergrounding is the top preference overall, or favored only for equipment not placed on a pole. Because small pole-mounted equipment is not "out-of-character" among other right-of-way infrastructure, it should be allowed up to a certain volume. Draft Policy Section C(2)(e)(2) includes workable volumes for pole-mounted associated equipment (nine cubic feet near residential and 17 elsewhere, excluding meters/disconnects). This section should be clarified to allow those volumes of pole-mounted associated equipment before any undergrounding or ground- mounting is considered. The policy was revised to clarify the city’s intention for a preference for any equipment not mounted on the pole to be placed underground. V6 C(2)(e)(1) Design and concealment. The requirement to flush-mount equipment is infeasible for electric utility poles. The provision should be revised to accommodate the standoff distance required by Public Utilities Commission General Order 95 (four inches). An exception to this guideline for conflicts with General Order 95 for wood utility poles. However, it is noted that some venders have been installing flush mounted equipment to utility poles. V7 C(2)(e)(2) Size limits. Among the dimensions listed, the depth limit of 12 inches is infeasible if it does not accommodate required radio units for small cells on utility poles that are available from manufacturers. Because the provision already limits The depth limit of 12 inches was deleted from the draft in Section C.2.e.2. Dec. 14, 2021 Item #16 Page 146 of 252 Ref # Policy 64 Section # Comment Response equipment volume and width, the depth limit is unnecessary and should be stricken, or expanded to a feasible dimension to accommodate required radio units. V8 C(3)(a), (b) New pole setback of 50 feet (or more) from intersections. Barring new poles within 50 feet of intersections eliminates many optimal locations where signal can be directed down multiple streets. Narrow wireless poles pose no more impact on views than street lights or traffic signals at corners. This provision gives me pause, as I am concerned that this could very likely result in prohibition of service. I understand the rationale for this; however, in many other jurisdictions, we've seen a carveout for technical infeasibility that affords staff the discretion to determine that such restrictions on a given project would create a situation where the proposed site's coverage/capacity objectives could not otherwise be technically feasible without relaxing the restrictions (on an ad hoc basis). Another consequence of pushing small cells away from intersections will likely result in a greater quantity required to meet the same coverage/capacity objectives. The stated purpose of the setback is to prevent obstructions at intersections. Changes in the draft were made to clarify the method of measurement for the 50- foot setback and add flexibility by allowing modifications by the Engineering Manager. In addition, the policy allows SWFs to locate on traffic light poles. Also, the draft proposes an exception for conflicts with law, which will allow applicants and staff to address technical feasibility issues. V9 C(3)(c) New pole with streetlight or banner. If Verizon Wireless places and owns a new pole for its equipment, as allowed by Public Utilities Code Section 7901, the City cannot compel it to install a streetlight or other non-wireless apparatus without paying rent. This potential requirement should be stricken, leaving the following section to control new pole designs. Section 7901 preserves local aesthetic regulations. If a new standalone pole would not be consistent with the surrounding area, the City may impose aesthetic conditions on the pole. Adding a streetlight or a banner could qualify. Edits to that effect were added to the draft. V10 C(3)(d) New pole design. The City should work with wireless carriers to ensure that objective standards accommodate all new pole designs that fully conceal equipment, not just the base shroud option. The intent of the policy is that if an applicant proposes a new pole, all equipment must be integrated into the design of the pole. This intent was clarified in the draft, and authority given to the Engineering Manager to Dec. 14, 2021 Item #16 Page 147 of 252 Ref # Policy 64 Section # Comment Response determine if the proposed design complies with the intent of the policy. V11 C(5)(a) Antenna in radome/shroud (wood utility pole). Per the comment on C(2)(b), this may be technically infeasible for multiple or 5G antennas. Repeat comment, see V4 above V12 E(1) Application and review guidelines. This introductory provision should note the submittal items that are inapplicable to small cells in the right-of-way: Sections E(2) (location restrictions), E(4) (use permit findings), and the following three items: E(1)(a). Site selection process, technical service objectives. This submittal requirement should not apply to small cells. There should be a site selection review only if an applicant is using a less-preferred structure (that is, a new pole, per the comments on Sections C(1)(a) and (c) above). Also, as noted, "technical service objective" is irrelevant to small cells. E(1)(b). Description or map of all existing/proposed sites. This is not relevant to any reasonable, objective aesthetic criteria for small cells. Each small cell should be evaluated on its own merits. There is a compelling argument here that has been advanced in many other jurisdictions that submission of complete maps of vital telecommunications infrastructure poses a legitimate security issue. Subject to public record disclosure, such a concise outline of network assets at-a-glance exposes our (and our competitors') architecture to potential impacts of third parties. We strenuously object to these requests. Note that E.1 was changed to only apply to WCFs applications, and E.2 was added and only applies to SWF applications. E.1.a – New Section E.2 was added and exempts SWFs on existing/replacement poles from this application requirement, and only apply it to new poles that are least preferred E.1.b – New Section E.2 does not include a requirement for an SWF applicant to submit such a map. E.3 – Now Section E.4, this section of Policy No. 64 won’t apply to SWFs whether in or out of the ROW, so the comment is not applicable. Dec. 14, 2021 Item #16 Page 148 of 252 Ref # Policy 64 Section # Comment Response E(3). Submittals for new pole. Several of the factors listed to discount use of existing facilities appear to contemplate private property sites. However, because Section 7901 grants telephone corporations use of any right-of-way, the City cannot require relocation on to private property. This section should not apply to right-of-way small cells. Instead, the City should rely on the new pole standard suggested above regarding Section C(1)(c). CC1 C(3)a Supplemental requirements for SWFs on New Poles for the right-of-way of roads While new poles may not be our first priority, maintaining these set-backs (50’ set back from any intersection, 6’ from any driveway cut or alley entrance and 6’ from any existing permanent object in the ROW) could prove to be greatly limiting. Safety and line of sight are paramount when dealing with intersections and a set-backs are necessary, however we recommend reducing the size of the set-backs to 25’ for intersections and to 4’ from any existing permanent object in the ROW. We’ll continue to work with Staff and incorporate locational preference to the best of our ability in the event a new pole is needed. See comment and response for V8 CC2 D(5) Compliance with FCC RF Exposure Guidelines With RF Reports required at time of submittal simulating worse case scenarios, an additional report within (6) months of final inspection is redundant. A cumulative report encompassing a 500 ft radius for SWF’s in the ROW is excessive, we request that the City remove the “cumulative” requirement and reduce the radius (Ex: Neighboring municipalities have a adopted a 75 ft radius requirement). Consistent with FCC rules, the requirement for a post- installation RF report and the 500 ft. radius for cumulative RF reports was removed from the policy draft. In place of the post-installation report, the draft proposes a new section that requires compliance with laws, including those pertaining to RF emissions, at all times on an ongoing basis. This requirement allows the permit decision maker to ask for additional RF studies at any time if they have good cause to believe that the facility is Dec. 14, 2021 Item #16 Page 149 of 252 Ref # Policy 64 Section # Comment Response not in compliance with any laws applicable to human exposure to RF emissions. The policy draft requires an applicant shall submit an RF exposure compliance report that certifies that the proposed facility, both individually and cumulatively with all other emitters in the vicinity, will comply with applicable federal RF exposure standards and exposure limits. S1 A1 & 2 Sprint opposes the removal of public right-of-way (ROW) areas from the list of preferred locations for WCFs, in particular macro cell towers. It is very important for carriers to have maximum flexibility for the placement of macro towers in areas such as public ROWs to ensure high-quality wireless coverage as broadly as possible. Imposing unnecessary restrictions on placement of macro cell towers in the public ROW would simply limit Sprint’s ability to locate facilities where they might be most needed to provide the desired coverage, and could interfere with Sprint’s ability to optimize its network technology for the deployment of 5G. The draft policy was revised to keep certain ROW areas as preferred locations for macro WCFs (no change from the existing policy). SWFs within the ROW are exempted from the preferred locations in Section A. S2 B.7 Sprint suggests a definition of “monopole” be added to the Policy, in order to ensure consistent application of the guidelines among carriers and infrastructure providers, and to provide additional clarity to other provisions utilizing the term “monopole.” The monopole requirements are part of the existing policy and only apply to WCFs, not SWFs. Adding definitions to Policy No. 64 is beyond the scope of this update. Staff recommends that definitions could be considered along with other code and policy clean-up items as part of a separate work effort. S3 B.1 Sprint suggests the design guidelines in Section B should clarify that carriers may propose alternative methods of screening to meet the “stealth” requirements, such as painting, texturizing walls or buildings, or utilizing fencing. The policy includes requirements that are intended to be examples, and the permit decision maker has the discretion to consider items not stated as similar to the examples. Staff does not recommend changing the draft policy. Dec. 14, 2021 Item #16 Page 150 of 252 Ref # Policy 64 Section # Comment Response S4 B.7 With regard to monopole design, Sprint suggests clarification of the conditions under which a “plain” monopole is acceptable, versus when a tree-disguise is required. This is part of the existing policy and only applies to WCFs, not SWFs. Updating this is beyond the scope of the Policy No. 64 update. S5 B.5 Sprint generally opposes any excessive setback requirement applicable to small wireless facilities (SWFs). As mentioned above, it is important for carriers to have maximum flexibility on the placement of wireless facilities to ensure high quality coverage. Especially in areas where macro cell tower placement is restricted, SWFs are critical to carriers’ ability to fill in gaps to ensure high quality wireless coverage. In addition, unnecessary setback requirements could compromise the adequacy of coverage in areas that could be vulnerable to emergency situations, and adversely affect first responders’ ability to react to the emergency. This setback was originally designed for macro cell sites and only applies to public/private property, outside of the ROW. The draft policy proposes to apply it to SWFs that locate outside the ROW on public/private property. The setback is the same as the underlying zoning district, except when adjacent to residential. Then the wireless facility will be required to be maintain a setback equal to the height of the support structure. Staff does not consider these setbacks to be excessive. The draft policy also allows SWFs in all road ROWs which provides flexibility for completing wireless networks. S6 B.9 Sprint suggests adding clear definitions of “lattice tower” and “non-antenna equipment” to ensure consistent application of the guidelines and to provide clarity. Sprint frequently utilizes remote radio heads, which Sprint considers to be auxiliary antenna equipment, and such equipment is not always feasible to install behind the antennas. These requirements are part of the existing policy. Adding definitions to Policy No. 64 is beyond the scope of this update. Staff recommends that definitions could be considered along with other code and policy clean-up items as part of a separate work effort. S7 C.2.c C.2.e.2 Sprint opposes any limits on the cumulative size of antennas and supporting equipment that deviate from established FCC guidelines. Size limits should be no more restrictive than 3 cubic feet for antennas, and 28 cubic feet for supporting equipment. The Small Cell Order does not mandate that all cities approve 28 cf. of accessory equipment, only that applications that meet the FCC definition are subject to the faster shot clocks and specific limits on local aesthetic regulations. Nine cubic feet in residential and 17 cubic feet in non-residential are reasonable limits that balance size with the carrier’s technical requirements. The draft was edited to allow 9/17 cubic feet on poles, 9/17 cubic Dec. 14, 2021 Item #16 Page 151 of 252 Ref # Policy 64 Section # Comment Response feet mounted to the ground, and no specified limit to underground equipment, pending approval by the engineering manager. This should prove feasible for the carriers technical requirements. S8 C.2.h, C.5 Sprint suggests clarification of the provision applicable to cables, wires, and connectors; in particular, the blanket prohibition against hanging or looping wires. It is not always feasible to use 90 degree connectors without compromising transmission quality. Carriers should have more flexibility to position cables and wires to optimize network performance. The city can prohibit this based on aesthetic reasons, however wires and cables, etc., can be in some kind of box, shroud or conduit. The draft policy was clarified to state that looping or hanging wires are prohibited only if located outside of an equipment cabinet. S9 D.1 Sprint believes changing the noise standard language from “such as” to “including” could be read as overly restrictive. Applying the standards to all equipment, rather than narrowly focusing the language on specific equipment such as generators, could impose unnecessary costs and burdens on carriers. The language should be kept as-is. The draft policy was changed to include “such as”. This is existing language and there has not been an issue with using the phrase “such as”. S10 D.5 E.1.d Sprint opposes any requirements or restrictions related to RF emissions that deviate from FCC standards, as such requirements could introduce unnecessary costs and delays to the deployment process. Carriers should not be required to do more than certify compliance with existing FCC standards. The draft was revised to ensure it does not impose a standard for measuring RF exposure that is not present in the FCC’s regulations. Also, in place of the post- installation report required by D.5, the draft proposes a new section that requires compliance with laws, including those pertaining to RF emissions, at all times on an ongoing basis. This requirement allows the permit decision maker to ask for additional RF studies at any time if they have reason to good cause to believe that the facility is not in compliance with any laws applicable to human exposure to RF emissions. Consistent with FCC rules, the policy draft requires an applicant to submit an RF exposure compliance report that certifies that the proposed facility, both individually Dec. 14, 2021 Item #16 Page 152 of 252 Ref # Policy 64 Section # Comment Response and cumulatively with all other emitters in the vicinity, will comply with applicable federal RF exposure standards and exposure limits. A1 C First, many provisions in the Policy do not meet the requirements of the Federal Communications Commission's (FCC) September 2018 Declaratory Ruling and Order, FCC 18- 133 (Order), as well as federal regulations that implement that Order. The Order established that local agency aesthetic regulations for wireless facilities must not be more burdensome than those applied to other types of local agency or private infrastructure developments. Examples of regulations in the Policy that are not consistent with the Order’s new standard include restrictions on wireless facilities as to height, location, stealthing and disguising, setbacks and utility undergrounding that are not imposed on other infrastructure items in the City. This comment is vague and doesn’t point to a specific section or standard that in conflict with the FCC Order. Furthermore, the FCC order allows local jurisdictions to establish reasonable aesthetic and application standards. The City’s requirements are fairly consistent with other cities that require stealthing, concealment and some investigation into more preferred alternatives. In addition, the Ninth Circuit overruled the two most restrictive features of the FCC’s SWF rules on local aesthetic regulations – that they had to be objective and no more burdensome than those applied to other infrastructure. Also, the city added exemptions to ensure conflicts with CPUC General Order 95 do not occur. A2 C ? Second, many provisions in the Policy do not meet the requirements of the Order and implementing regulations (47 C.F.R. section 1.6002) regarding the deployment of small cell wireless facilities. Restrictions in the Policy including about the location, placement, height, disguising, equipment and antennas size, and equipment location for small cell facilities are not consistent with federal regulations. This comment is vague and doesn’t point to a specific section or standard that in conflict with the FCC Order. Furthermore, the FCC order allows local jurisdictions to establish reasonable aesthetic and application standards. A3 D.5 E.1 Third, many provisions in the Policy impose application submittal requirements for wireless facilities that are inconsistent with federal and state standards. Examples of inconsistencies include application requirements to study the cumulative effect of radio frequency (RF) energy for all RF emitters in the vicinity of a proposed wireless facility, network The RF report requirements were changed in the draft to be consistent with FCC requirements. Also, the city added exemptions to ensure conflicts with CPUC General Order 95 do not occur. Contrary to this assertion, no other conflicts with law occur in the draft. Dec. 14, 2021 Item #16 Page 153 of 252 Ref # Policy 64 Section # Comment Response maps, explanation of proposed services, service objectives, showings about no feasible alternative locations, showings about designs being the least visible to the public or the least disruptive to the subject property, and photosims. These application standards do not comply with a range of federal and state laws and decisions. A4 An option for the City to address inconsistencies between the Policy and provisions of federal and state regulations as identified in the attachment to this letter is to add some exemption language to the Policy (and/or the City Code on wireless facilities.) The exemption language would be to the effect that, upon a wireless carrier's written explanation to the reasonable satisfaction of the City Planner about the inconsistency of a provision(s) of the Policy with applicable law, the City Planner would exempt the identified element or portion of the wireless carrier's facility application from the provision(s) of the Policy. The draft was amended to include an exemption for conflicts between the policy and federal or state law. An applicant must provide evidence of this conflict, and the exemption only applies to the specific provision in question. A5 Process Question: SWF’s in ROW that meet all design criteria are approved by a ROW Permit; or, if they do not meet all design criteria, must they apply for a CUP? Can they apply for a CUP if they do not/cannot meet the design criteria? The draft proposes an exemption for conflicts between the policy and federal or state law, which can be used to address issues with technical infeasibility. An applicant must provide evidence of this conflict, and the exemption only applies to the specific provision in question. The policy does not allow for an SWF within the ROW to apply for a CUP if they do not meet the criteria of Policy No. 64. A6 C.1 Generally agree with proposal. SWFs attached to existing poles in the ROW will be the typical application. The city acknowledges that most SWFs will be installed on existing poles in the ROW. A7 C.2.a Typically, the desired antenna height is approx. 27’ +- (5G will be lower) and desire to be attached to existing light standards in the ROW. The FCC definition of SWF’s allows up to 50 feet. This proposed limitation may require a CUP if an existing pole is, for example 20 ft tall and if the desired antenna height is 27 feet. The limit may be set lower. The most common way to set height limits in the ROW is with reference to the underlying pole as this subsection currently does. Our height limit allows new and replacement poles to go up to height of the city’s standard streetlight pole, which is approximately 24’. Plus 5’ for the SWF antenna is 29’, Dec. 14, 2021 Item #16 Page 154 of 252 Ref # Policy 64 Section # Comment Response May need to take a closer look at height limits if replacing an existing pole that is substantially shorter than typical light standards (ie. decorative lights). which is high enough for AT&T’s desired antenna height of 27’. Staff didn’t add a separate height limit for areas of decorative lights, only a requirement that new/replacement poles be substantially similar in color/style/design as existing decorative streetlights. So presumably an applicant could propose a taller new/replacement pole in an area of short decorative lights as long as it was substantially similar in design. A8 C.2.c One of our Biggest Issues: The limitation of 3cf, including the required concealment, brackets, mounting arms, etc, is in conflict with the FCC definition and can result in a CUP vs ROW permit in many cases. I would like to discuss the 6 cf scenario with you. The draft was revised to delete the six cubic foot limit for antennas, which should address this comment. A9 C.2.e.2(a) One of our biggest Issues: The FCC definition allows up to 28 cf. with no specific dimensional limitations. This dimensional limitation will trigger a CUP vs ROW permit. Typically, 4G equipment is under 4cf with 5G equipment about the same. For example, a “concealed cabinet” for 4G equipment is 14’ x 18”x 46”. Staff deleted the 12-inch depth limit from the draft policy. A CUP does not apply when an SWF cannot comply with the policy. SWFs are only subject to ROW permits and building permits, according to draft Policy No. 64 A10 C.3.a Clarify “Centerline requirement” for new poles. Staff determined that this requirement is not necessary and proposes to delete it from the policy. A11 C.5.a & b This section can conflict with State GO95 and requirements regulated by SDG&E. Edits in the draft were made to ensure this section is flexible enough for applications to comply with GO 95. A12 D.5 AT&T is required to comply with the FCC regulations including RF emission limitations. This “post integration” regulation is above and beyond the FCC requirements. Small wireless facilities typically operate at a fraction of the allowed MPE It is acknowledged that the post-installation requirement for an RF report is beyond what the FCC requires, and this requirement has been deleted from the draft. Dec. 14, 2021 Item #16 Page 155 of 252 Ref # Policy 64 Section # Comment Response levels. AT&T considers this to be beyond what the FCC requires, and stated that the FCC requires limits to be met cumulatively already, and that they must already demonstrate compliance to the FCC. AT&T is ok to provide predictive modeling with applications, but not the RF reports after installation. The 5% rule proposed for cumulative RF sources would be practically difficult to implement, as it would be difficult to tell where the other sources are coming from and how much they contribute to the cumulative. In place of the post-installation report required by D.5, the draft proposes a new section that requires compliance with laws, including those pertaining to RF emissions, at all times on an ongoing basis. This requirement allows the permit decision maker to ask for additional RF studies at any time if they have reason to good cause to believe that the facility is not in compliance with any laws applicable to human exposure to RF emissions. Consistent with FCC rules, the policy draft requires an applicant to submit an RF exposure compliance report that certifies that the proposed facility, both individually and cumulatively with all other emitters in the vicinity, will comply with applicable federal RF exposure standards and exposure limits. Dec. 14, 2021 Item #16 Page 156 of 252 Policy 64 Update Public Review Comments and Staff Responses # Commenter Comment Staff Response 1 Multiple comments Public comments express concerns about placement of facilities in residential areas.This wireless infrastructure has no proven safety records and I do not want it near my home. They shouldn’t be placed near any residential structures! Cities cannot prohibit or effectively prohibit the provision of personal wireless or telecommunications services under federal law.” 2 Jamie Jacobs We have very poor service from all providers on Sausalito Avenue which creates some safety risk from a communication perspective. Would be great if coverage was increased in this area. Thank you. Comment noted. Policy 64 is intended to regulate wireless facilities in a way that strikes the appropriate balance between the preservation of community aesthetics with the need for reliable coverage and capacity throughout the city. 3 Michael Percopo Yes, let's come into the 21st Century and wire Carlsbad to have G5 everywhere. Comment noted. Policy 64 is intended to regulate wireless facilities in a way that strikes the appropriate balance between the preservation of community aesthetics with the need for reliable coverage and capacity throughout the city. 4 Christine Edman Thank you for your diligence in making public health a top priority! It is the city’s goal to protect the health, safety and welfare of the public to extent allowed by applicable laws as they relate to telecommunications and the ability of local jurisdictions to regulate telecommunications. 5 Anonymous 1 The sooner this is implemented across the City, the better. Everyone should have equal access. Comment noted. Policy 64 is intended to regulate wireless facilities in a way that strikes the appropriate balance between the preservation of community aesthetics with the need for reliable coverage and capacity throughout the city. 6 Multiple Comments Public comments expressed concerns about potential hazards from radiofrequency emissions. The city is preempted by federal law and cannot regulate based on the Exhibit 6Dec. 14, 2021 Item #16 Page 157 of 252 # Commenter Comment Staff Response environmental effects from RF emissions to the extent that such emissions comply with FCC regulations. This preemption applies both to the requirements of Policy 64 and the review of permits for WCF and SWF installations. 7 Kristin Newsom Our neighborhood has terrible cell connectivity issues whether it be Verizon or ATT. We have to go out the street to hopefully not get disconnected. We have reached out to Verizon to help us solve the issue to no avail. We live on the lower area of Sausalito Ave. TY Comment noted. Policy 64 is intended to regulate wireless facilities in a way that strikes the appropriate balance between the preservation of community aesthetics with the need for reliable coverage and capacity throughout the city. 8 Nancy Powers If equipment is to be placed on residential property, that property owner should be notified in writing 60 days in advance of the type of equipment (size, location, specifications), and have the option to refuse the installation. Wireless communications infrastructure cannot be installed on private property without the property owner’s authorization, and the owner would have the option to refuse the installation. 9 Brian Carstens There are two sections of concern in City of Carlsbad Council Policy Statement Policy-64: Section B. Design Guidelines, 5. Setbacks: b. If in a residential zone and in a public utility installation, park, or community facility, the WCF should be set back from the property boundaries of the utility installation, park, or community facility a minimum distance equal to the above-ground height of the overall support structure's height. Are you aware that Verizon is proposing a WCF in the middle of Poinsettia Park that violates this design guideline? Please tell Verizon that the WCF must be located outside of the park boundaries by a distance equal to the height of the pole. D. Performance Guidelines: 5. Compliance with FCC RF Exposure Guidelines -Within six (6) months after the issuance of occupancy, and with each time extension or amendment request, the developer/operator should submit to the City Planner either verification that the WCF is categorically excluded from having to determine compliance with the guidelines per 47 CFR §1.1307(b)(1) According to the details of the application, the proposed WCF at Poinsettia Park (project number CUP 2021-0002) complies with this standard – the height of the support pole will be approximately 80 feet, but it is located over 400 feet from the nearest property line of the park parcel. Pre-installation RF compliance reports will be required for each application. Post- installation compliance procedures under Section D.5 will allow the city to require RF emissions testing if there is cause to believe the antennas are exceeding FCC rules. Dec. 14, 2021 Item #16 Page 158 of 252 # Commenter Comment Staff Response or a project implementation report that provides cumulative field measurements of RF electromagnetic fields of all antennas installed at the subject site. The report should quantify the RF emissions and compare the results with currently accepted ANSI/IEEE standards as specified by the FCC. Has the City of Carlsbad ever received a project implementation report with the RF measurements? This is an important tool to preserve public health and safety. Please do not remove this language from Policy-64 10 Multiple comments Public commenters express concern about liability for damages and injuries caused by wireless facilities. The city requires insurance and indemnification as part of it’s master license agreement for wireless communication facilities. A master license agreement is required for any WCF or SWF located on city owned facilities, such as a streetlight or traffic signal. Insurance requirements are summarized as minimum of Commercial General Liability policy with a $2M per occurrence and $4M general aggregate, covering operations, independent contractor, contractual liability, personal injury and advertising injury. For indemnification, licensees are required to indemnify the city and all agents of the city for any and all claims incurred in connection with or arising in whole or in part from the installation, use, maintenance, repair or removal of the equipment or licensee’s breach of any provision of the master license agreement. Dec. 14, 2021 Item #16 Page 159 of 252 # Commenter Comment Staff Response The insurance and indemnification required by the master license agreement cover ongoing operations of the WCF or SWF equipment, and would include damages due to a fire if caused by the equipment. In addition, the city requires insurance and indemnification for the installation and any construction activities required. Through the master license agreement, the city is adequately protected from claims in the event that a fire is caused an applicant’s WCF or SWF. An option is included in Exhibit 4 to add requirements for insurance and indemnification for WCFs and SWFs not subject to a master license agreement. 11 Irene Tsutsui 1 2. As I mentioned to you, the Precautionary Principle puts the burden of responsibiity on the telecoms. Used in Europe, it has ensured greater safety. It is utilized by corporations in the USA when environmental concerns are involved. It also includes active citizen input and participation. I will send more information along with recommendations for testing at installation sites by the City as recommended by the attorney Andrew Campanelli. He maintains that technical specifications on applications are often inaccurately presented thus posing hazards to citizens. At the meeting Jay Varon and I had with Jason Haber and Gary Barberi last year, the idea of forming a committee of several Carlsbad citizens was posed; the recent historic ruling against the FCC along with the uncertainty of the outcome of other lawsuits against the FCC magnifies the importance of engaging the community. Carlsbad is compelled to comply with Federal and State law with respect to WCF and SWF installations, irrespective of any potential uncertainty in laws and pending court cases. The city monitors applicable laws for wireless communications, and should changes occur, amendments to our policy can be made as well. This applies to the referenced Precautionary Principle as well – the city cannot apply additional caution where it conflicts with law. The city is preempted by federal law and cannot regulate based on the environmental effects from RF emissions to the extent that such emissions comply Dec. 14, 2021 Item #16 Page 160 of 252 # Commenter Comment Staff Response with FCC regulations. This preemption applies both to the requirements of Policy 64 and the review of permits for WCF and SWF installations. 12 Multiple comments Public comments expressed concerns about potential fire safety hazards caused by wireless facilities. Carlsbad Fire Prevention has not seen any concerns of fire within our Wildland Urban Interface areas due to cellular antennas, but rather due to electrical transmissions lines. Statewide, the fire prevention industry’s efforts have been focused on the area of fire risk due to electrical transmissions lines. With this in mind, the City recognizes potential risks of downed electrical facilities that may occur by the addition of more equipment to utility poles. Accordingly, all applications for wireless communications facilities, including small wireless facilities, are reviewed by the Carlsbad Fire Prevention Bureau. The California Fire Code addresses relative code concerns regarding the installation of wireless communication facilities throughout the state, and Fire Prevention ensures that these installations meet state code where applicable. All applications will also require building and safety review to evaluate compliance with structural support and loading standards 13 Irene Tsutsui 1 SB9 which passed in California will allow multi-unit buildings on a single-family parcel thus increasing density and human exposure to Carlsbad is compelled to comply with Federal and State law with respect to WCF Dec. 14, 2021 Item #16 Page 161 of 252 # Commenter Comment Staff Response the hazards of 4G/5G Smart cell antenna and tower installations. Now is the time to take steps to lessen the overall hazard exposure that will escalate with higher population density. SB9 The California H.O.M.E Act https://urldefense.com/v3/__https://focus.senate.ca.gov/sb9__;!! E_4xU6-vwMWK- Q!66EjWXM46EJ2ckOVxUIZVUIYdPyZwWGzPMx99RROE9XZ173car 0Yc_M4E7aQVwaAFlbRvj8$ and SWF installations, irrespective of population or dwelling unit density. The city is not permitted to factor these aspects in reviewing and approving permits for WCFs and SWFs. 14 Irene Tsutsui 2 Add a statement that the City ensures WCF placement in a way that does not necessarily cause adverse impacts on aesthetics, reduction in property values or cause damage as a result of such things as insufficient fall zones, structural failures, electrical fires or other related adverse events. See Irene Tsutsui Letter 2 attached to this table for additional info and suggested language. The draft policy includes requirements to limit impacts to aesthetics and safety requirements, and includes proximity to residential uses as a factor in the decision. All wireless facilities will be reviewed by the city’s Fire Prevention Bureau. 15 Irene Tsutsui 2 The city should require public notice for small cell installations in the ROW. See Irene Tsutsui Letter 2 attached to this table for additional info and suggested language. Exhibit 4 contains an option for consideration by the City Council to add notification for small wireless facility applications. 16 Irene Tsutsui 2 Policy 64 should prohibit WCFs from being installed on or near a ridgeline or slope abutting a chapparal populated area due to fire risk. See Irene Tsutsui Letter 2 attached to this table for additional info and suggested language. Small wireless facilities are unlikely to be proposed on ridgelines or in open space areas due to the more limited range. Macro WCFs can be proposed in these areas and will go through the existing permit process in Policy 64, including review by the city Fire Prevention Bureau. 17 Irene Tsutsui 2 The city should require a post installation RF study prepared by an independent and qualified individual certifying compliance with FCC regulations if the city finds cause to do so. See Irene Tsutsui Letter 2 attached to this table for additional info and suggested language. Section D.5 provides procedures for enforcing ongoing compliance with FCC regulations. Dec. 14, 2021 Item #16 Page 162 of 252 # Commenter Comment Staff Response 18 Irene Tsutsui 2 The city should replace the proposed Compliance with Laws section with one from Malibu that addresses technology and safety upgrades. See Irene Tsutsui Letter 2 attached to this table for additional info and suggested language. The draft policy for the city includes permit term requirements, the intent of which to require assessments of new technology and shielding for wireless facilities. 19 Mark Graham Your web page says, "Next steps All input gathered will be presented to the City Council in December when the updated policy and guidelines will be considered for adoption." With all due respect this is way too fast for the City or its residents. Municipal telecommunications policy is complicated. Haste makes waste. There is not enough time for the City to really learn the extent of its possible regulatory authority per the Telecommunications Act of 1996 and applicable case law, consider recommendations by its residents, prepare specific written ordinance or resolution for the Council, receive advice from the City Attorney or other attorney that the City will hire for this purpose, negotiate or at least communicate with the telecommunications companies who will surely have an interest in your amendments to your cell antenna policy, receive input from your residents on your draft proposed zoning code amendment, discuss and debate the proposal including residents' comments, and then discuss and debate the final policy as amended in response to your residents' comments all by December. Also, there is Christmas. I recommend that the City use a thoughtful and complete process to formulate and receive public comment at every step of the way. This is the best way to achieve a cell antenna policy that works well for and serves the interests of the City and your residents. The Federal Communications Commission Order was released on September 26, 2018. Since that time, local governments have been required to implement the order regardless of existing policies or regulations. The city started an effort to update this policy in 2020, but the effort was put on hold so the City Council could hold a workshop. The workshop was held on June 23, 2021. Without an update to Policy 64, there are no additional requirements or standards to show the city’s preferences on locations. At the City Council meeting, the City Council can make modifications to the policy, or provide additional direction to staff on items to include and not include. 20 Mark Graham 3. Require applications to demonstrate that a given proposed cell antenna will close a significant gap in coverage and do so using the least intrusive means. The U.S. Court of Appeals for the 9th Circuit interpretation of the TCA is still the prevailing case law today. Staff disagrees. The FCC rejected significant gap demonstrations as a basis for local permit denials for small wireless facilities. This portion of the FCC’s decision Dec. 14, 2021 Item #16 Page 163 of 252 # Commenter Comment Staff Response MetroPCS, Inc. v. City & County of San Francisco (9th Cir. 2005) 400 F.3d 715. was upheld in City of Portland v. USA, 969 F.3d 1020 (9th Cir. 2020). 21 Mark Graham 5. Require the applicant to file with the City, as a condition of permit issuance, a copy of the applicant's routine environmental evaluation for the proposed cell antenna, which the National Environmental Policy Act (NEPA) and the procedures of the Federal Communications Commission (FCC) implementing NEPA require the applicant to prepare. Adopted. The City may include in its application materials an environmental assessment/compliance requirement. 22 Mark Graham 6. Require the applicant to pay the City a certain amount of money with each permit application, determined by the City, which the City will use to hire an independent expert to review and evaluate the completeness and accuracy of each cell antenna permit application including, without limitation, the alternative site analyses and radio frequency emissions report. This change is included as an option in Exhibit 4. The City may reserve the option to hire third party consultants to review issues that require specialized training or experience. 23 Mark Graham 7. Become familiar with the effective range of cell antenna signals. This is directly relevant to the question of placement and how many cell antennas are really necessary in a given area. According to former Verizon CEO Lowell McAdam the range of a Verizon 5G cell antenna is greater than 2,000’. This is in the real world, not the result of a calculation or an ideal but unusual situation such as between two antennas on rooftops. Therefore telecom’s claim that a cell antenna is needed every 300’ or 500’ is simply not true. For more information, see Mark Graham letter attached to this table. Staff disagrees. Cities cannot prohibit or effectively prohibit the provision of personal wireless or telecommunications services. 24 AT&T In Section A.2, the reference to Section E.2 should be changed to E.1 as E2 is for SWFs and this section excludes SWFs The city agrees and will make the edits. 25 AT&T Regarding Section C applying to both WCFs and SWFs, SWFs are a subset of WCFs, so query whether SWFs need to be called out throughout the Section C unless the regulation is meant to be SWF only. Adopted. Staff reviewed the proposed changes to Section C in consideration of applying to both WCFs and SWFs, and made minor edits for the purpose of clarification. 26 AT&T In Section C.1.c regarding determinations of whether a more preferred support pole type exists nearby, reduce the radius from This change is included as an option in Exhibit 4. Dec. 14, 2021 Item #16 Page 164 of 252 # Commenter Comment Staff Response 500 ft. to 200 ft. for , as a 500 ft. radius is too far in terms of ruling out alternatives for a SWF, which may only propagate 800 ft. 27 AT&T In Section C.2.c, the federal definition of “small wireless facility,” 47 CFR 1.6002(l)(2), states that “each antenna associated with the deployment. . . is no more than three cubic feet in volume.” Mounting arms, hardware, and concealment elements are not included in the three cubic foot per antenna volume limit. The provision should be modified to comply with federal law and delete these items. Adopted. 28 AT&T In Section E.8, if the intent is that a single provider can file multiple batches of 10 on the same day, clarification is required. The city, however, cannot cap total batches submitted by a single provider or implement a moratorium on submittals “at one time,” if the result prevents a provider from filing applications. Under paragraph 155 of the FCC Small Cell Order, batching of SWF permits is clearly permitted. City staff could not reasonably process an unlimited number of applications for completeness within the 10-day review period. Reasonable submittal limits are appropriate to comply with the shot clocks. 29 Verizon Verizon also requests that the City Staff further engage the wireless industry about proposed changes to the Policy and looks forward to continuing conversations on this matter in either a Stakeholders Meeting or in separate discussions with each carrier before the revised Policy is presented to the City Council for consideration Staff disagrees. Staff met with any stakeholders who requested a meeting, which includes meetings with AT&T in 2020 and meetings with AT&T, Verizon and a citizen group organized by Karen Rich in 2021. Numerous public comments have been considered and have been incorporated into the Policy as appropriate. Industry comments that have not been accepted typically involve disagreement over the extent the City’s authority would be limited or preempted by federal and state law. 30 Verizon Small wireless facility location restrictions and justification requirements: Policy regulations include requirements that prohibit certain areas for locating a wireless facility, that push facilities into “preferred” locations and away from ”discouraged” Staff disagrees. Federal law requires local aesthetic regulations to be (1) reasonable (i.e., technically feasible) and (2) published in advance. Whether the City’s preferred Dec. 14, 2021 Item #16 Page 165 of 252 # Commenter Comment Staff Response areas, that impose unreasonable setback requirements, and that require alternative site analyses and business justifications for facilities. These regulations are contrary to federal law and will also make large swaths of City lands off limits to needed wireless facilities, which will create many significant gaps in Verizon’s network coverage and capacity. These types of regulations should be eliminated as to small wireless facilities. locations are technically feasible must be evaluated on a case-by-case basis after the application is filed. To the extent that any regulation is not technically feasible, the applicant may seek an exception under Section E.11. 31 Verizon Small wireless facility design restrictions: Policy regulations also improperly restrict the height of small wireless facilities, attempt to control the wireless technologies used for facilities, require infeasible and costly undergrounding of all utilities serving a facility and all accessory equipment, and impose infeasible and costly design elements that cannot be reasonably implemented in the field. Such restrictions and limitations are not consistent with federal regulations and FCC rulings that expressly apply to the allowed height, size and design of small wireless facilities. The restrictions will improperly inhibit the needed deployment of wireless facilities within the City, which is not consistent with federal law and policy. These types of regulations should be eliminated as to small wireless facilities. Staff disagrees. Federal law requires local aesthetic regulations to be (1) reasonable (i.e., technically feasible) and (2) published in advance. The FCC’s definition of a “small wireless facility” under 47 C.F.R. § 1.6002(l) is a regulatory classification that subjects the application to special shot clocks and limitations on aesthetic regulations. The FCC does not mandate that cities approve any small cell that meets the definition. To the extent that any regulation is not technically feasible, the applicant may seek an exception under Section E.11. 32 Verizon 1. Review Restrictions (The City may not prevent completion of a network, p. 3). The City should add language here in the discussion of the “materially inhibits” standard to explain that the FCC Small Cell Order determined an effective prohibition of service occurs “where a state or local legal requirement materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service. This test is met not only when filling a coverage gap but also when densifying a wireless network, Staff disagrees. Policy 64 already provides an overview and citation to the applicable standard. Dec. 14, 2021 Item #16 Page 166 of 252 # Commenter Comment Staff Response introducing new services or otherwise improving service capabilities.” “Thus, an effective prohibition includes materially inhibiting additional services or improving existing services.” (FCC Small Cell Order ¶ 37 and footnotes 85-87.) Further explanation on these items should be added to the Policy 33 Verizon 2. Permit Process (Table A Processing Requirements, p. 6). Permit Process (Table A Processing Requirements, p. 6). The attempted location preferences incorporated into Table A to locate WCFs mostly only in non-residential and non-open space zones could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). Limiting or prohibiting WCFs from being located in or adjacent to residential and open space zones and areas of the City ignores the fact that network coverage/capacity needs and network coverage gaps exist in residential and open space areas. The limitations therefore are not consistent with federal law as explained more in Comment Nos. 3 and 4 below. These types of location restrictions in this Table should therefore be removed or revised. Staff disagrees. The location preferences do not prohibit services in any location. 34 Verizon 3. Review and Approval Guidelines (Location Guidelines Sections A.1 and A.2, p. 7). Further, the significant WCF (not SWF) siting restrictions stated in the Preferred and Discouraged Locations are too broad, and very likely will lead to an improper prohibition of wireless services. Application of the location restrictions in these Sections will make large swaths or areas of the City off limits to wireless sites, which could create many significant gaps in Verizon’s network coverage and capacity. Application of the location restrictions could violate 47 U.S.C. Section 253(a), which states that “[n]o State or local statute or Adopted in part. Section E.11 provides an exception process if any regulation under Policy 64 would violate federal or state law as applied. On their face, the location preferences do not prohibit services in any location. Whether the location standards as-applied would result in an effective prohibition is a determination that the City may evaluate at the time it denies an application. Dec. 14, 2021 Item #16 Page 167 of 252 # Commenter Comment Staff Response regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” The limitations may therefore result in a prohibition, or an effective prohibition, of wireless services in violation of the Section 253 of the TCA. Further, application of the City’s location restrictions applied to a particular proposed WCF also cannot prohibit or have the effect of prohibiting the provision of wireless services under 47 U.S.C. §332(c)(7)(B)(i)(II) and T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987 (9th Cir. 2009) where Verizon has a significant gap in coverage and has proposed the least intrusive means to fill that gap. These types of location restrictions in this Section should therefore be removed or revised to allow for an exception process for the placement of WCFs. 35 Verizon 4. Review and Approval Guidelines (Location Guidelines Section A.2, p. 7). . This Section improperly requires an applicant to show “no feasible alternative” to siting a WCF (not a SWF) in a Discouraged Location. The legal test that is consistent with federal law is the “least intrusive means” test established by the Ninth Circuit in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 997-98 (9th Cir. 2009). The City may not enforce a standard that is not consistent with federal law. The regulations in this Section should be revised to refer only to the “least intrusive means” standard. Adopted. The phrase “no feasible alternative” was not intended to create a different legal standard than the Ninth Circuit’s “least intrusive means” test. Under that test, an alternative must be “technically feasible” and “potentially available” (i.e., the applicant could obtain a lease to use the property). 36 Verizon 5. Review and Approval Guidelines (Location Guidelines Section A.3, p. 7). Staff disagrees. This standard expresses a common aesthetic regulation that facilities Dec. 14, 2021 Item #16 Page 168 of 252 # Commenter Comment Staff Response This Section improperly requires an applicant to show that any location for a WCF (not a SWF) is the “least visible to the public”, “least disruptive to the appearance of the host property”, not “readily visible”, or “hidden or disguised.” But, as stated above, The legal test that is consistent with federal law is the “least intrusive means” test established by the Ninth Circuit in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 997-98 (9th Cir. 2009). The regulations in this Section should therefore be revised to refer only to the “least intrusive means” standard. must be concealed from public view using techniques that hide or blend the facility into the underlying structure or property. 37 Verizon 6. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.1, p. 8). Section B.1 defines “stealth” in a manner that is likely not consistent with applicable law because the City could easily apply the definition in a way that would effectively prohibit SWF deployment if, for example, the City determined that antennas or equipment, which complies with the federal size standards for SWFs, does not “visually blend into the background or the surface on which they are mounted.” Further, the design principles and requirements of this Section should not be applied in a manner that results in prohibitive cost impacts or results in a prohibition of wireless network services. The City’s Policy cannot materially inhibit deployment of telecommunications networks or create an appreciable impact on resources that materially limit plans to deploy wireless service. The FCC determined that increased per SWF costs could impair and impede the needed deployment of SWFs, which is inconsistent with national policy. (See FCC Small Cell Order ¶ 24.) Costly conditions imposed for site approval, such meeting subjective and undefined design standards, drain Verizon’s capital resources that otherwise could be used for network deployment, and would be improper to the extent fees or costs prohibit, or have the effect of prohibiting, Staff disagrees. Stealth designs and other concealment techniques would not be satisfied by complying with the FCC’s definition of a “small wireless facility”, which describes facilities in terms of height and volume, not their aesthetic characteristics. Dec. 14, 2021 Item #16 Page 169 of 252 # Commenter Comment Staff Response the provision of wireless services. (See FCC Small Cell Order ¶¶ 54- 61.) Moreover, incurring additional costs for an alternative design solution is one factor that can be used by a carrier to reject the alternative design even in the context of macro wireless facility or WCF applications. (See T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 998 (9th Cir. 2009).) The regulations should be revised to state that SWF designs meet the “stealth” requirement if they comply with the height, size and dimension standards identified in 47 CFR § 1.6002(l). 38 Verizon 7. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.4, p. 8). The height limitations imposed in this Section on SWFs (compliance with height limitations in the zone and limiting heights to that of existing or replacement structures for new attachments) are inconsistent with federal and state law and should be revised. SWFs can be mounted on new structures or can extend the height of the existing pole or structure to higher than other adjacent structures, including reaching a height of up to 50 feet. (47 CFR § 1.6002(l)(1)(i)-(iii).) The height allowances under federal law could exceed either the height limits in a City zone or the height of the structures being replaced. Also, CA Public Utilities Commission (CPUC) General Order 95 contains mandatory safety-related separation standards for equipment and lines attached to poles, which standards would affect the height of a replacement pole and associated SWFs. Also, the WCF height limitations stated in this Section could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II) if a proposed WCF is required to be Adopted in part. Sections C.2.a and C.2.e. provide an exception for compliance with CPUC General Order 95. Any other exception to the City’s height standards could be processed under Section E.11 on a case-by-case basis. Dec. 14, 2021 Item #16 Page 170 of 252 # Commenter Comment Staff Response placed at a height in excess of a height limitation for a zone as necessary for Verizon to fill a significant gap in service. The regulations should be revised to state that (1) SWF heights are allowed if they comply with the height standards identified in 47 CFR § 1.6002(l) and in CPUC General Order 95 (as applicable), and where technically or structurally necessary, and (2) WCF heights are allowed as needed to avoid a significant gap in network coverage and capacity, and to comply with CPUC General Order 95 (as applicable). 39 Verizon 8. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.5.a-b, p. 8). The setbacks for SWFs in these sections are not consistent with federal law, including the definition of SWFs found in 47 CFR section 1.6002(l)(1)-(6), and the discussion of SWFs in the FCC’s 2018 Small Cell Order. No such setback requirements for SWFs are stated in federal law. Furthermore, there is typically not enough space in the public right-of-way to implement such setback requirements for SWFs. Verizon would also like to raise the question as to whether the same setback requirements are being required of other utilities in the public right-of-way as Verizon is a public utility under the California law. Such requirements, if applied to SWFs, should also be applied to installations by other utilities in the public right-of-way in these areas. Under federal law, local regulations must be applied equally to all public utilities using the right-of-way. Federal law recognizes the authority of local governments to “manage the public rights of way” though on a “competitively neutral and nondiscriminatory basis.” See 47 U.S.C. § 253(c). The setback restrictions should therefore be removed for SWFs. Staff disagrees. These standards apply to facilities outside the public right-of-way. Dec. 14, 2021 Item #16 Page 171 of 252 # Commenter Comment Staff Response Further, for SWFs, a carrier only needs to show that application of this City setback regulation materially impaired or impeded Verizon’s deployment of wireless services, as discussed in Comment No. 1 above, and the setback requirement would be preempted. These sections could also result in an effective prohibition of Verizon’s services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II) based on the limitations on siting or locating a WCF due to significantly enhanced setback requirements that don’t apply to any other structures, and which would result in a significant gap in Verizon’s wireless network services. Also, the increased setback regulations for WCFs and SWFs stated in these sections also appear to be a pretext for impermissibly seeking to regulate radio frequency (RF) emissions and therefore violate 47 U.S.C. §332(c)(7)(B)(iv). There is no reason for any form of increased setback regulations for a WCF or SWF beyond those that are generally applicable to any other structure. A WCF and SWF outside the ROW must typically already comply with reasonable design regulations, and meet all FCC, and building code standards (including as to noise and structural integrity) to be approved. Therefore, the proposed significantly increased minimum setback requirements just for WCFs and SWFs are arbitrary and unreasonable, and appear to be a pretext based on the unfounded fears of RF emissions, which is not a valid basis for local regulation. The setback regulations should therefore be removed or revised. 40 Verizon 9. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.6, pp. 8-9). Section B.6 (b) is vague and subjective based on the limitations on siting or locating a WCF or SWF “as far away as possible from the Adopted in part. Section E.11 provides an exception process. Dec. 14, 2021 Item #16 Page 172 of 252 # Commenter Comment Staff Response outer edge of a building or structure ….” This Section could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). The regulation should therefore be removed or revised. WCFs and SWFs must be sited close to parapet walls on building roofs to achieve adequate signal propagation to meet coverage objectives. The further away from a parapet wall edge the WCF or SWF is located, the higher the antennas typically must be placed to project signals over the parapets and to street level elevations around the building. Pushing a WCF or SWF “far away” from roof edges could result in an increase the height of the facility, which may exceed height limitations and will otherwise increase the visibility of the WCF or SWF and defeat the purpose of Section B.1. Further, the requirement for equipment for a WCF or SWF on a residential building to be placed inside a residential structure (as opposed to an outdoor walled enclosure) is unreasonable, may not be possible due to space constraints on the private property, and could be cost-prohibitive. The regulations should be revised to allow exceptions where full compliance would be technically infeasible, infeasible due to space or property owner restrictions or cost-prohibitive. 41 Verizon 10. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.7.c, p. 9) Requiring trees “tall enough to screen three-quarters of the height of the monopole at the time of planting” as screening for a ground- mounted WCF will likely result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). High trees adjacent to WCF antennas often cause near-field interference with RF signals and typically significantly limit the coverage range of a WCF due to signal blockage of the tall trees. Further, adding trees and landscaping Adopted in part. Section E.11 provides an exception process. Dec. 14, 2021 Item #16 Page 173 of 252 # Commenter Comment Staff Response may not be possible due to space constraints or property owner restrictions on the private property, Such screening and landscaping requirements therefore would prevent Verizon from closing a significant gap in coverage. Verizon raises similar concerns to placing monopoles next to tall buildings for the same reasons (interference, blockage of signal propagation, etc.) The regulations should be revised to allow exceptions where full compliance would be technically infeasible or infeasible due to space or property owner restrictions. 42 Verizon 11. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.10, p. 9) This Section should be removed or revised for WCFs and SWFs as it will result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). For SWFs, the FCC determined that undergrounding requirements, similar to aesthetic requirements, must be reasonable, or “technically feasible” and meant to avoid “out-of-character deployments. (See FCC Small Cell Order, ¶¶ 86, 90.) For WCFs, utility lines are typically already placed underground in a trench, unless it is determined by the utility provider to not be feasible. The regulations should be revised to allow above-ground connection of utility lines to SWFs and WCFs. Staff disagrees. Utilities in the City are primarily underground. To the extent that undergrounding would not be technically feasible, Section E.11 provides an exception process. 43 Verizon 12. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C1, p. 10). The FCC Small Cell Order was adopted to provide guidance on appropriate approval criteria for small cells. The order defines “small wireless facilities” with specific height and dimension thresholds. 47 C.F.R. § 1.6002(l). The FCC addressed appropriate aesthetic criteria for approval of qualifying small cells, which Staff disagrees. Federal law preserves local zoning authority subject to specific limitations. The City’s proposed aesthetic regulations favor (but do not mandate) particular locations, support structures, small equipment and commonly used concealment techniques to avoid out-of- Dec. 14, 2021 Item #16 Page 174 of 252 # Commenter Comment Staff Response criteria were upheld in City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), cert. denied, concluding that they must be: “(1) reasonable, and (2) published in advance.” (FCC Small Cell Order, ¶ 86.) “Reasonable” standards are “technically feasible” and meant to avoid “out-of-character deployments.” (Id., ¶ 87.) California Public Utilities Code Section 7901 grants telephone corporations such as Verizon Wireless a statewide right to place their equipment along any public right-of-way, including new poles. The proposed preference list in this section has a first preference of existing or replacement streetlight poles. If the City favors these types of poles over other options, it would contradict California Government Code Section 65964(c) which bars cities from limiting wireless facilities to sites owned by particular parties. Also, having a preferred structure type list, such as shown in Section C.1, exceeds federal law requirements above as federal law doesn’t state such a preference of structure types and such a preference list would then be an added requirement that goes beyond what the FCC has deemed reasonable under its Small Cell Order. Finally, no requirement to show the “least intrusive” design, or that a “more preferred” support pole, applies to SWFs. In 2018, the FCC rejected requirements that “applicants … show that the proposed facilities are the ‘least intrusive means’ for filling a coverage gap.” (FCC Small Cell Order ¶40 and note 94.) Accordingly, an application for a SWF is not required to comply with this Section. Nor can this Section require the “smallest” wireless antenna or equipment, and the requirement must be removed as unworkable and inconsistent with federal law. Under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided and whether they are current technology, character facilities along the City’s rights- of-way. With respect to the “least intrusive means” standard, federal courts within the Ninth Circuit have continued to apply it to small wireless facilities and there is great uncertainty as to how they would apply the FCC’s “material inhibition” standard. Dec. 14, 2021 Item #16 Page 175 of 252 # Commenter Comment Staff Response or otherwise attempt to control the technological and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v. Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the technological and operational aspects of wireless services, violate the TCA).) Also, the requirement in this Section to utilize “smallest” antennas and equipment should be removed as it is vague and ambiguous, and without objective or reasonable standards. Further, wireless carriers have different network operations and objectives, and the “smallest” antennas and equipment may be feasible to be used by one carrier but not feasible to be used by another carrier. Finally, regarding a SWF, the City cannot require Verizon to show (1) a “clearly defined technical service objective”, or (2) why the “least intrusive” design or most preferred pole location is not available. In 2018 the FCC eliminated requirements that applicants show a “coverage gap”-based analytical approach for small wireless facility applications and instead established a new national standard for what constitutes effective prohibition of service under the Act. (See FCC Small Cell Order, ¶¶ 9-10, 21, 37 and 40 and notes 87-88 and 94.) The regulations in this section should be revised to (1) exempt SWFs from having to provide alternative site analyses, to show the facility is the “least intrusive” design or site, to provide coverage maps, or to use the “smallest” antennas or equipment provided the size and dimension requirements of 47 CFR § 1.6002(l) are met, and (2) exempt WCFs from having to use the “smallest” antennas or equipment. 44 Verizon 13. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.a, p. 11). Adopted in part. Sections C.2.a and C.2.e. provide an exception for compliance with Dec. 14, 2021 Item #16 Page 176 of 252 # Commenter Comment Staff Response The height limitations imposed in this Section on SWFs are inconsistent with express federal law and should be revised. SWFs can be mounted on new structures, or can extend the height of the existing pole or structure, to higher than other adjacent structures, including reaching a height of up to 50 feet. 47 CFR § 1.6002(l)(1)(i)- (iii). The height allowances under federal law could exceed either the height limits in a City zone or the height of the structures being replaced. Also, CA Public Utilities Commission (CPUC) General Order 95 contains mandatory safety-related separation standards for equipment and lines attached to poles, which standards would affect the height of a replacement pole and associated SWFs. Technically infeasible standards for small cells are unreasonable and prohibitive according to the FCC. (FCC Small Cell Order, ¶¶ 86- 87.) Also, the WCF height limitations stated in this Section could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II) if a proposed cell facility is required to be placed at a height in excess of a height limitation for a zone as necessary for Verizon to fill a significant gap in service. The regulations should therefore be revised to state that (1) SWF heights are allowed if they comply with the height standards identified in 47 CFR § 1.6002(l) and in CPUC General Order 95 (as applicable), and (2) WCF heights are allowed as needed to avoid a significant gap in network coverage and capacity, and to comply with CPUC General Order 95 (as applicable). CPUC General Order 95. However, the FCC does not mandate that all small wireless facilities that meet the height standard under the federal definition must be approved. Cities are entitled to adopt reasonable (i.e., “technically feasible”) height limits that are more consistent with the existing streetscape. Any other exception to the City’s height standards could be processed under Section E.11 on a case-by-case basis. 45 Verizon 14. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.b, p. 11). The stealthing/concealment requirements may be technically infeasible to the extent covering the face of certain antennas with a radome or shroud impedes signal propagation. Shrouds are required for all antennas, but the face of certain high frequency antennas may remain uncovered. Dec. 14, 2021 Item #16 Page 177 of 252 # Commenter Comment Staff Response This regulation should be revised or qualified to state “unless technically infeasible.” 46 Verizon 15. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.c, p. 11). The size and width standards here are inconsistent with the express federal regulations on SWFs found at 47 CFR § 1.6002(l). The regulations should therefore be revised at c.1 to eliminate the last sentence as only antennas, and not associated equipment items or shrouds, are included in the 3 cubic feet volume standard at 47 CFR § 1.6002(l)(2). Further, sections c.2 and c.3 should be eliminated and replaced with language to state only that the width and design of top-mount antennas should comply with the size and dimension standards found in 47 CFR § 1.6002(l). Adopted in part to delete the requirement that non-antenna elements be included in the volume calculation for the antenna. Other antenna design requirements are not preempted by the definition of a “small wireless facility” under 47 C.F.R. § 1.6002(l). 47 Verizon 16. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.d -e.1, pp. 11-12). The FCC Small Cell Order regarding SWFs requires that an agency utilize “reasonable” design standards that are “technically feasible” and meant to avoid “out-of-character deployments.” (¶ 87; these FCC requirements were upheld in City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), cert. denied.) Small cell antennas (including microwave antennas) and equipment could be attached to poles or structures in the ROW and be consistent with the character of the surroundings. Further, SWF antennas and equipment can be attached to a pole consistent the design, size and volume standards that are stated in the federal regulations found at 47 CFR § 1.6002(l) and as stated in CPUC General Order 95. The regulations in these sections should be revised to state that SWF antennas and equipment can be attached to the pole or support structure unless out-of-character with the surroundings, Staff disagrees. The City’s preferences and standards are designed to ensure that deployments are not out-of-character with the surroundings. Dec. 14, 2021 Item #16 Page 178 of 252 # Commenter Comment Staff Response and as consistent with the design, size and volume standards found at 47 CFR § 1.6002(l) and as stated in CPUC General Order 95. 48 Verizon 17. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.e.2, p. 12). Federal regulations expressly and specifically govern the size or volume standards for non-antenna equipment for SWFs, and the City metrics listed in this section do not comply with those federal rules. The regulations in this section should be revised to state that all pole-mounted SWF non-antennas equipment, including cabinets, can be installed consistent with size and volume standards found at 47 CFR § 1.6002(l). Staff disagrees. Federal law requires local aesthetic regulations to be (1) reasonable (i.e., technically feasible) and (2) published in advance. The FCC’s definition of a “small wireless facility” under 47 C.F.R. § 1.6002(l) is a regulatory classification that subjects the application to special shot clocks and limitations on aesthetic regulations. The FCC does not mandate that cities approve any small cell that meets the definition. To the extent that any regulation is not technically feasible, the applicant may seek an exception under Section E.11. 49 Verizon 18. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.f, p. 12). This requires accessory equipment to be installed underground if feasible. Blanket undergrounding requirements are unreasonable according to the FCC because small radio boxes or similar items on the side of a street light pole are not “out-of-character” among other right-of-way infrastructure. Further, the FCC determined that increased per SWF costs could impair and impede the needed deployment of SWFs, which is inconsistent with national policy. (See FCC Small Cell Order ¶ 24.) Costly conditions imposed for site approval, such as undergrounding equipment, drain Verizon’s capital resources that otherwise could be used for network deployment, and would be improper to the extent fees or costs prohibit, or have the effect of prohibiting, the provision of wireless services. (See FCC Small Cell Order ¶¶ 54-61.) Adopted in part. The City permits small radios to mounted above ground in Section C.2.e. Dec. 14, 2021 Item #16 Page 179 of 252 # Commenter Comment Staff Response This section should be revised to state that SWF accessory equipment does not require undergrounding if the equipment complies with the volume and size standards identified in 47 CFR § 1.6002(l). 50 Verizon 19. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.j, p. 12). This Section should be revised to be consistent with federal law. As discussed above, SWFs can be a height and design allowed under 47 CFR § 1.6002(l)(1) and as required on replacement poles governed by CPUC General Order 95. Further, WCFs can be a height needed to fill a significant gap in wireless coverage. (T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987 (9th Cir. 2009).) The regulations should therefore be revised to state that (1) SWF heights and designs are allowed if they comply with the height standards identified in 47 CFR § 1.6002(l) and in CPUC General Order 95 (as applicable), and (2) WCF heights are allowed as needed to avoid a significant gap in network coverage and capacity, and to comply with CPUC General Order 95 (as applicable). Staff disagrees. Federal law requires local aesthetic regulations to be (1) reasonable (i.e., technically feasible) and (2) published in advance. The FCC’s definition of a “small wireless facility” under 47 C.F.R. § 1.6002(l) is a regulatory classification that subjects the application to special shot clocks and limitations on aesthetic regulations. The FCC does not mandate that cities approve any small cell that meets the definition. To the extent that any regulation is not technically feasible, the applicant may seek an exception under Section E.11. 51 Verizon 20. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.3.e, p. 13). The requirement in this Section that requires, for new poles without a streetlight, antennas and all equipment not installed underground be concealed and integrated into the overall design of the pole (with no exterior equipment boxes or shrouds attached to the pole), is unreasonable for SWFs. The onerous restrictions will impair and impede Verizon’s ability to densify and enhance its wireless network, and will result in an effective prohibition of wireless services. The restrictions are also inconsistent with 47 CFR § 1.6002(l) and CPUC General Order 95 (as applicable). This Section Staff disagrees. Federal law requires local aesthetic regulations to be (1) reasonable (i.e., technically feasible) and (2) published in advance. The FCC’s definition of a “small wireless facility” under 47 C.F.R. § 1.6002(l) is a regulatory classification that subjects the application to special shot clocks and limitations on aesthetic regulations. The FCC does not mandate that cities approve any small cell that meets the definition. Moreover, Section Dec. 14, 2021 Item #16 Page 180 of 252 # Commenter Comment Staff Response also contradicts Public Utilities Code Section 7901 that grants telephone corporations the right to place new poles in the right-of- way. California Public Utilities Code Section 7901 grants telephone corporations such as Verizon Wireless a statewide right to place their equipment along any public right-of way, including new poles. The regulations should be revised to state that the design of a new pole without a streetlight may be consistent with the height, size, and volume standards for SWFs in 47 CFR § 1.6002(l) and in CPUC General Order 95 (as applicable). 7901 is a limited right and preserves local zoning authority to the extent that the facility would incommode the public’s use. New poles in the right-of-way would presumptively be out-of-character with the City’s planned streets. However, to the extent that any regulation is not technically feasible, the applicant may seek an exception under Section E.11. 52 Verizon 21. Review and Approval Guidelines (Application and Review Guidelines WCFs Section E.1.b-c, p.16). The requirements for an application to include a carrier’s map of existing and proposed sites, and to describe the purpose of a WCF, are not consistent with federal law and must be eliminated. This Section violates Verizon’s rights under the TCA regarding the requirement to submit maps and an explanation of the communications services to be provided. (City of Auburn v. Qwest Corp., 260 F.3d 1160, 1176 and 1178 (9th Cir. 2001) (city violated the TCA by requiring maps and a description of services to be provided; agencies do not have the authority to request information regarding systems, plans or purposes for a WCF).) Further, under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided, or otherwise attempt to control the technological and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v. Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the technological and operational aspects of wireless services, violate the TCA).) Staff disagrees. Auburn v. Qwest was overruled by Sprint v. County of San Diego, 543 F.3d 571 (9th Cir. 2008). Moreover, the City is not regulating the services to be provided by requesting information on the location and purpose of the application. These issues are relevant for the applicant to show that a more-preferred location or design would not be technically feasible. Dec. 14, 2021 Item #16 Page 181 of 252 # Commenter Comment Staff Response These sections should be revised to eliminate requirements for carriers to submit maps of existing and proposed sites, and to describe the purpose of a WCF. 53 Verizon 22. Review and Approval Guidelines (Application and Review Guidelines WCFs Section E.1.d, p.16). The requirement for a RF report with cumulative analysis of “all emitters in the vicinity” is vague, ambiguous and unworkable, and must be eliminated or revised. Neither Verizon nor any carrier will know about “all” potential emitters of RF energy in the area around a facility. Further, the “vicinity” requirement is not quantified and is therefore subject to unreasonable or irrelevant application, especially as accepted scientific standards identify that RF energy dissipates significantly even over short distances. This section should be revised to eliminate the requirement for carriers to submit a RF report with cumulative analysis of “all emitters in the vicinity,” and only require RF reports consistent with FCC regulations. Adopted. RF compliance reports shall be required to demonstrate compliance with 47 C.F.R. § 1.1307(b)(5) to the extent that there a cumulative emissions from other FCC-licensed emitters. 54 Verizon 23. Review and Approval Guidelines (Application and Review Guidelines SWFs Sections E.2.a-b, p.17). These sections should be revised to eliminate the requirement to explain the purpose or technical service objective, as well as a site selection process, for a proposed SWF. Under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided, or otherwise attempt to control the technological and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v. Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the technological and operational aspects of wireless services, violate the TCA; see also City of Auburn Staff disagrees. The City is not regulating the services to be provided or requiring a demonstration of a coverage cap by requesting information on the location and purpose of the application. These issues are relevant for the applicant to show that a more-preferred location or design would not be technically feasible. Dec. 14, 2021 Item #16 Page 182 of 252 # Commenter Comment Staff Response v. Qwest Corp., 260 F.3d 1160, 1176 and 1178 (9th Cir. 2001) (city violated the TCA by requiring maps and a description of services to be provided; agencies do not have the authority to request information regarding systems, plans or purposes for a facility).) Further, in 2018 the FCC eliminated requirements that applicants show a “coverage gap”-based analytical approach for SWF applications and instead established a new national standard for what constitutes effective prohibition of service under the Act. (See FCC Small Cell Order, ¶¶ 9-10, 21, 37 and 40 and notes 87-88 and 94.) The City cannot require Verizon Wireless to prove the necessity of new small cells, which the FCC determined are needed to enhance service and densify networks. The FCC also disfavored dated service standards based on “coverage gaps” and the like (such as a requirement to show technical service objectives or a description of wireless services proposed here) (FCC Small Cell Order, ¶¶ 37- 40.) Finally, in 2018, the FCC rejected requirements that “applicants … show that the proposed facilities are the ‘least intrusive means’ for filling a coverage gap.” (FCC Small Cell Order ¶40 and note 94.) Accordingly, an application for a SWF is not required to comply with Section E.2.b’s requirement for an alternative site analysis. This regulation should therefore also be eliminated. The regulations in these sections should be revised to eliminate the need for SWFs to provide alternative site analyses, to show the location is the “least intrusive” design or site, to provide coverage maps, or to explain the purpose of the facility or to show technical service objectives or a description of wireless services proposed . 55 Verizon 24. Review and Approval Guidelines (Application and Review Guidelines SWFs Sections E.2.c, p.17). Adopted. RF compliance reports shall be required to demonstrate compliance with Dec. 14, 2021 Item #16 Page 183 of 252 # Commenter Comment Staff Response The requirement for a RF report with cumulative analysis of “all emitters in the vicinity” is vague, ambiguous, and unworkable, and must be eliminated or revised. Neither Verizon nor any carrier will know about “all” potential emitters of RF energy in the area around a facility. Further, the “vicinity” requirement is not quantified and is therefore subject to unreasonable or irrelevant application, especially as accepted scientific standards identify that RF energy dissipates significantly even over short distances. This section should be revised to eliminate the requirement for carriers to submit a RF report with cumulative analysis of “all emitters in the vicinity,” and only require RF reports consistent with FCC regulations. 47 C.F.R. § 1.1307(b)(5) to the extent that there a cumulative emissions from other FCC-licensed emitters. 56 Verizon 25. Review and Approval Guidelines (Application and Review Guidelines Section E.5, pp.17-18). This Section should add that the decision-maker findings shall also consider applicable federal and state law, which may modify the considerations listed compared to the City Code. Adopted in part. An exception may be granted under Section E.11. 57 Verizon 26. Review and Approval Guidelines (Application and Review Guidelines Section E.6, p. 18). This Section cannot require that an application to amend an existing WCF permit document that the WCF maintains the “smallest” or “most efficient” wireless antenna or equipment, and the requirement must be removed as unworkable and inconsistent with federal law. Under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided and whether they are current technology, or otherwise attempt to control the technological and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v. Town of Staff disagrees. Federal law preserves local zoning authority subject to specific limitations. The City’s proposed aesthetic regulations favor (but do not mandate) particular locations, support structures, small equipment and commonly used concealment techniques. Moreover, the reference to using the “most efficient” design concerns whether collocation with existing facilities or on an existing structure would be technically feasible. Collocating would not be required if it is not technically feasible. Dec. 14, 2021 Item #16 Page 184 of 252 # Commenter Comment Staff Response Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the technological and operational aspects of wireless services, violate the TCA).) Also, the requirement in this Section to document a facility uses the “smallest” or “most efficient” antennas and equipment should be removed as it is vague and ambiguous, and without objective or reasonable standards. Further, wireless carriers have different network operations and objectives, and the “smallest” antennas and equipment may be feasible to be used by one carrier but not feasible to be used by another carrier. The regulations in this section should be revised to remove the requirement for a WCF to use or maintain the “smallest” or “most efficient” wireless antenna or equipment. 58 Verizon 27. Review and Approval Guidelines (Application and Review Guidelines Section E.9, p. 19). This Section regarding appointments for in-person submittals of applications must be applied in practice to allow timely, reasonable, and flexible opportunities for submittal appointments. Verizon would also like to recommend that the City consider an online or email application process, especially in light of current restrictions to diminish in person contact as imposed by state and federal law with regards to the pandemic, with such requirements constantly changing. Staff disagrees. Application submittal appointments are helpful workflow management tools for the City to comply with federal shot clocks. Regulations from state or county public health departments may impact in-person submittal procedures in the future, but City departments are currently open to the public. Changes to the submittal procedures based on public health recommendations may be considered should the need arise. Dec. 14, 2021 Item #16 Page 185 of 252 Comment letter 1 from Irene Tsutsui plus attachments From: Irene Sent: Nov 8, 2021 4:43 PM To: , Cc: , , , , , , Subject: CITY OF CARLSBAD Policy 64 Follow up on 4G/5G Smart Cell Antenna and Towers fire risk and insurability Dear Eric and Corey: : Thank you for hearing our concerns at the Zoom meeting on November 2nd regarding the City of Carlsbad's updating public policy 64 covering 4G/5G smart cell antenna and tower installations. Whereas a 1500 foot setback in residential neighborhoods and schools may pose complexity, the Front Yard Rule is a simple, easy to understand and implement rule which would reduce the exposure to potential harm Carlsbad residents would otherwise endure from unrestricted installations. Reducing exposure is so important given the technical shortfalls expected of wireless infrastructure and the high San Diego County/Carlsbad year round fire risk and concomitant issues. The following is information I am sharing which emphasizes the fire risk and the need for telecoms to provide proof of adequate insurance. What are the key issues and what makes Carlsbad particularly vulnerable to the fire risk? 1. Substandard equipment and/or installations that lack the certification of having undergone rigorous testing; safety monitoring is lacking that would guarantee safety as is done with other consumer products. Lloyds of London will not insure any wireless devices or equipment taking the position it is the "new asbestos."That begs the question who is going to pay the costs of damage from smart cell towers catching fire or collapsing? Will the City assure residents such cost will be borne by the telecoms? 2. As I mentioned to you, the Precautionary Principle puts the burden of responsibiity on the telecoms. Used in Europe, it has ensured greater safety. It is utilized by corporations in the USA when environmental concerns are involved. It also includes active citizen input and participation. I will send more information along with recommendations for testing at installation sites by the City as recommended by the attorney Andrew Campanelli. He maintains that technical specifications on applications are often inaccurately presented thus posing hazards to citizens. At the meeting Jay Varon and I had with Jason Haber and Gary Barberi last year, the idea of forming a committee of several Carlsbad citizens was posed; the recent historic ruling against the FCC along with the uncertainty of the outcome of other lawsuits against the FCC magnifies the importance of engaging the community. 3. Carlsbad's complex terrain fuels fast-moving ("moved quickly") fires which described the 2014 Poinsettia fire. The article with photo and video posted below (courtesy of Environmental Health Trust) depicts several cell antenna fires along with a list of multiple fire incidents; it demonstrates that fires are to be expected Dec. 14, 2021 Item #16 Page 186 of 252 until telecoms are forced to engineer safer equipment. It was reported elsewere that at least 75 fire agencies including out of state agencies were deployed in the Poinsettia fire. 4. Tremendous liability and cost from equipment and faulty installations. The 2007 Malibu fire cost $60 million in settlements after three telecoms were held responsible for overloading utility poles. Southern California Edison incurred a $37 million judgment. Natural fire hazards illustrate the magnitude of the cost. The 2014 San Diego County fires cost $60 million in property damage and suppression efforts. The Poinsettia fire cost $22.5 million and one loss of life. 5. Future factors such as worsening drought conditions and recent state legislation commands a forward thinking approach. Carlsbad's TOP HAZARD under "Potential Hazard-Related Exposure/Loss" is fire which dwarfs earthquakes and other hazards. Experts say fires in California now pose a year round hazard, a condition that is expected to worsen. https://urldefense.com/v3/__https://www.sandiegocounty.gov/content/dam/sdc/oes/emergency_man agement/HazMit/2017/City-of-Carlsbad-HazMit-Section-5.pdf__;!!E_4xU6-vwMWK- Q!66EjWXM46EJ2ckOVxUIZVUIYdPyZwWGzPMx99RROE9XZ173car0Yc_M4E7aQVwaAiRezT2M$ (see chart) SB9 which passed in California will allow multi-unit buildings on a single-family parcel thus increasing density and human exposure to the hazards of 4G/5G Smart cell antenna and tower installations. Now is the time to take steps to lessen the overall hazard exposure that will escalate with higher population density. SB9 The California H.O.M.E Act https://urldefense.com/v3/__https://focus.senate.ca.gov/sb9__;!!E_4xU6-vwMWK- Q!66EjWXM46EJ2ckOVxUIZVUIYdPyZwWGzPMx99RROE9XZ173car0Yc_M4E7aQVwaAFlbRvj8$ THREE ATTACHMENTS: You may find useful key Malibu ordinance language (below my signature) addressing the fire risk (also attached as 5G Malibu's Ordinance 484). In the third attachment, (Sample Ordinance Language and Legal Letters) "Subsection 7 restates the 1,500-foot set-back rule for residences and schools, and then imposes other design requirements, such as applicable codes, regulatory rules, prohibited interference with City communications systems, lighting, aesthetics, specifics on undergrounding and above-ground equipment, signage, noise and situations where the facility will largely provide coverage for outside-city areas. Finally, there are fire- hazard requirements, such as coordination with and monitoring by the Fire Department." "Subsection 8 authorizes and requires engagement of an outside expert (paid for by the applicant) to review technical matters and for compliance with the ordinance’s strictures." "Subsection 9 prescribes the conditions of approval that will attach to permits and apply throughout the permit and facility operational life, subject to amendment. This restates some of the matters in prior sections but addresses abandonment." "Subsection 10 requires the applicant, operator and property owner (as appropriate) to fully indemnify the City for all potential liabilities, including from operation and maintenance." Dec. 14, 2021 Item #16 Page 187 of 252 Per the second attachment on insurability and personal accounts, please consider the firsthand accounts of the challenges firemen faced on the ground in the Poinsettia fire; also consider the dire accounts of residents forced to evacuate the last minute with little time to spare along with power outages for 3,000 residents. About 25,000 Carlsbad residents (myself included) received evacuation phone calls. Personally I have received three separate evacuation calls over the last 25 years in North County and have observed how fast a fire can spread. A spark or burning ember from a cell tower electrical fire blown by winds to neighboring homes and slopes is my biggest worry aside from the radiation exposure. Thank you for your gracious attention to our citizens' concern over the fire risk and related issues! Feel free to contact me anytime if you have questions. I am glad to be of any assistance in gathering information and sharing suggestions gleaned from 5G attorney input and other expert resources. . Sincerely, Irene Tsutsui (aka Hoffman) 2647 Gateway Road #295 Carlsbad, CA 92009 phone 760-602-0839 CELL 760-271-0919 Fire on Rooftop With Cell Antennas in Brooklyn New York Apr 19, 2021 https://urldefense.com/v3/__https://ehtrust.org/firecell-tower-brooklyn-new-york/__;!!E_4xU6- vwMWK-Q!66EjWXM46EJ2ckOVxUIZVUIYdPyZwWGzPMx99RROE9XZ173car0Yc_M4E7aQVwaA1X5lLx8$ "A fire broke out on the roof of a Brooklyn New York apartment building...“According to some reports, the fire was caused by an electrical malfunction of a cell tower on the roof of the building.”Local news reports state that multiple firetrucks and dozens of firefighters arrived at the scene and quickly brought the fire under control. .. More transmitting cell antennas in a community will increase the fire danger/risk. 5G/4G wireless facilities bring industrial equipment with electrical equipment into residential neighborhoods. Poles loaded with electrical equipment bring fire risks. Yet, telecom and the power companies are largely unregulated with minimal oversight in regards to fire risk." "Many fires have been started by cell antennas and from equipment on utility poles, some at schools. Most notably, Malibu Canyon Fire started as the result of three telecoms overloading a utility pole and “Southern California Edison Co. agreed Monday to pay $37 million to resolve concerns about three overloaded utility poles that sparked the 2007 Malibu Canyon fire, a settlement that would bring the total payout for the destructive fire to more than $60 million.” ************* https://urldefense.com/v3/__https://www.naturalblaze.com/2021/04/5g-ai-may-day-or-mayday-liar- liar-cell-tower-on-fire.html__;!!E_4xU6-vwMWK- Q!66EjWXM46EJ2ckOVxUIZVUIYdPyZwWGzPMx99RROE9XZ173car0Yc_M4E7aQVwaAvQDURHg$ "What might have happened had the fire occurred in drought-ridden, fire prone California?As noted by the Environmental Health Trust, “More transmitting cell antennas in a community will increase the fire danger/risk. 5G/4G wireless facilities bring industrial equipment with electrical equipment into Dec. 14, 2021 Item #16 Page 188 of 252 residential neighborhoods. Poles loaded with electrical equipment bring fire risks. Yet, telecom and the power companies are largely unregulated with minimal oversight in regards to fire risk.”[vii]. *************** Malibu Ordinance 484 (see attachment for key language) The City of Malibu is designated as a Very High Fire Hazard Severity Zone. The City was devastated by major fires in 2007 and 2018 due to power pole failures. In the case of the 2007 fire, wireless communications facilities contributed to the overburdened power pole. The 2018 Woolsey Fire, which affected Malibu and other parts of Los Angeles County, consumed over 96,000 acres, destroyed at least 1,643 structures, killed three people, and prompted the evacuation of more than 295,000 people. It was one of several fires in California that ignited on the same day. Malibu has still not recovered. The 2007 fire burned 3,836 acres, 36 vehicles and 14 structures, including Castle Kashan and the Malibu Presbyterian Church, and damaged 19 other structures. It is essential that wireless communications facilities be engineered to prevent fire and withstand fire events as much as possible, and at least in a manner comparable to other commercial facilities with extensive, complicated electronics and wiring and flammable, sometimes hazardous and toxic, materials on site. •Policy 1.1.2: The City shall minimize the risk of loss from fire. • Policy 1.1.3: The City shall reduce the amount of non-essential toxic and hazardous substances. • Implementation Measure 2: Work with other agencies to ensure effective and efficient fire suppression, prevention and rescue services. • Implementation Measure 11: Develop guidelines and standards for all new and remodel structures to utilize fire-resistant building materials and designs, and, if feasible, to be sited to minimize fire hazards. • Implementation Measure 19: Regulate the transport, storage and use of toxic and hazardous materials. • Policy 4.2: All new development shall be sized, designed and sited to minimize risks to life and property from geologic, flood, and fire hazard. • Policy 4.45: New development shall minimize risks to life and property from fire hazard through: b. Siting and designing development to avoid hazardous locations; and d. Use of appropriate building materials and design features to insure the minimum amount of required fuel modification. Dec. 14, 2021 Item #16 Page 189 of 252 Attachment 1 – Wireless Facility Insurability and Fire Risk Submitted by Irene Tsutsui to City of Carlsbad KEY CONCERNS OVER 4G/4G SMART CELL ANTENNA AND TOWER INSTALLATIONS TELECOMS INSURABILITY & INSURANCE COVERAGE PERTINENT TO CARLSBAD’S FIRE RISK The following are concerns as substantiated via the articles posted below. 1) The Poinsettia fire was a "fast-burning" ,,.."moved quickly" fire. Some citizens only had two and a half minutes to evacuate. That puts the safety issue front and center impacting human survival. 2) The fast burning fire was fueled by unusually high winds for May, however, fire experts are warning that California is now under a "year round risk" which will worsen as time goes by. 3) San Diego County comprises a mountainous terrain of gentle slopes and hills. It is ripe for wildfires exacerbated by wind speeds and low humidity; On May 14 winds went from 22 mph (class 5) to 55 mph (class 10) creating a "perfect storm." "Devil winds" are exacerbated by San Diego's complex terrain which makes forecasting a complex task. The fire marshal (Monty Kalin retired this year) told me over15 years ago that with respect to two homeowner association communities adjacent to each other whose slopes I monitor annually for weed abatement (about 50+ homes on slopes out of over several hundred homes), we have many "up slopes" where wind travels faster than "down slopes." Both pose fire risks for different reasons. This is the reason our HOAs embarked upon a massive cleanup project eradicating pampas grass and some eucalyptus trees. I was dismayed when I traversed the slopes observing how unattended the slopes were with overgrown trees, bushes and weeds. Monty and the City provided the financial means to remove the pampas grass, a very tough plant to remove, and the landscaper removed many eucalyptus trees. I make sure the slope weed abatement occurs at HOA expense late spring/early summer to clear hazardous brush away at least 20 feet from our back yard fence line. See links below "Estimating Winds..."Observing Fire Weather" differentiating slopes and wind speed comparing "Upslopes, Downslopes, Up-Valleys and Down-Valleys." (see attachment "Downslope Windstorms of San Diego County. Part I: A Case Study" 4) The wind and fire tripped power lines causing 3,000 to be without power. The concern here is the effect on 4G/5G smart cell antenna and tower installations affected by winds, dust and smoke/ember pollutants. 5) The May 2014 San Diego County wildfires were estimated to have caused at least $60 million (2014 USD) in damage.[3] Wikipedia. Carlsbad property damage is estimated at $22.5 (I have seen higher numbers). The big concern is who is going to foot the damage cost if telecoms do not carry adequate insurance for fire, pollution and property damage? The Omni Resort (where the Poinsettia fire originated) was sued due to "negligent maintenance and operation of its property and equipment" as well as for "failing to safeguard against the fire spreading into neighboring residential Dec. 14, 2021 Item #16 Page 190 of 252 communities." The City of Carlsbad needs to protect itself by ensuring provisions are included in policy 64 to hold telecoms responsible to cover damages in the event of an antenna or tower fire or collapse. 6. The last link, "Summary of Potential Hazard-Related Exposure/Loss in Carlsbad" lists the fire hazard as the TOP POTENTIAL HAZARD. It dwarfs everything else including earthquake! Poinsettia Fire https://en.wikipedia.org/wiki/Poinsettia_Fire The Poinsettia Fire was the second most destructive of the May 2014 San Diego County wildfires. It caused property damage estimated at $22.5 million, as well as the only reported fatality in the San Diego County series of wildfires. As of July 10, 2014, the cause of the fire is listed as "undetermined", which allows for further investigation if more information comes to light A lawsuit filed in October 2014, alleges the resort was responsible for the fire due to "negligent maintenance and operation of its property and equipment" as well as for "failing to safeguard against the fire spreading into neighboring residential communities" once it had started.[13] The lawsuit has multiple plaintiffs, including homeowners who lost their homes, businesses that were damaged as well as those who suffered injuries in the fire. Poinsettia Fire Destroys Homes in Carlsbad https://www.nbcsandiego.com/news/local/brush-fire-carlsbad-palomar-airport-san-diego-cal- fire/57586/ Cal Fire Battalion Chief Nick Schuler said the fire is not something crews normally see in June, July, in August, not in May.“Not only were firefighters trying to engage the fire but doing their best to get people out of their homes effectively and safely,” Schuler said.* See: Photos of Firestorm 2014 The Windsor at Aviara Apartments, located near Ambrosia and Poinsettia lanes, caught fire later in the afternoon.NBC 7 News crews arrived on scene just as Sound-Elkin -- a veterinary ultrasound practice -- erupted in flames. Helicopters had to do water drops on the structure because firefighters were having a hard time attacking the fire from the ground.Carlsbad police officers said the Poinsettia Fire sparked around 10:40 a.m. at Alicante and Poinsettia Lane and moved quickly. Five years later, Carlsbad officials recall Poinsettia fire https://thecoastnews.com/five-years-later-carlsbad-officials-recall-poinsettia-fire/ The San Marcos Fire Department responded, but then had to return to its city as another fire broke out forcing those firefighters to respond to their own incident. Throughout the four days it took to extinguish the fire, at least 75 agencies including ones from Utah and Mexico, assisted with the Poinsettia Fire. Wildfires scorch San Diego County: 'Mother Nature was not on our side' https://edition.cnn.com/2014/05/15/us/san-diego-wildfire/ "On top of the drought, the Santa Ana winds have helped many of these fires race, challenging the hundreds of firefighters on the ground and in the air. These are typical for October and November, but Cal Fire Assistant Region Chief Thom Porter notes, "we've had this kind of wind ... every month this year." Dec. 14, 2021 Item #16 Page 191 of 252 "As a native San Diegan, I have never seen the Santa Ana winds -- also called 'the devil winds' -- in the month of May," San Diego County Supervisor Dianne Jacob said. Fire season in Southern California typically starts late in the summer and extends into fall. But nowadays, as Jacob points out, "We have year-round fire risk." Porter, from Cal Fire, notes that there's been no time to shut down over the past 12 months at least, adding: "We have never gone out of what you would call fire season." California Wildfire Season Is Stretching Year-Round https://weather.com/safety/wildfires/news/california-fire-season-year-round-20140514 Carlsbad copes with fire’s aftermath https://www.sandiegouniontribune.com/news/wildfire/sdut-carlsbad-fire-homes-thursday-2014may15- htmlstory.html “We had two-and-a-half minutes from the time that we got the call … for a mandatory evac to when the flames were at our back door,” Gilmore said, adding that he left behind many items, like his wallet and his laptop, that he would have grabbed if there were a few more minutes to spare. “My son had a Jurassic Park collection that it took him five years to assemble and it was worth thousands of dollars. I had a baseball card collection, a coin collection; we didn’t have time to get anything. My hard drive with all my family photos — gone. We had time to get out with our lives, and that was it,” he said. Wildfires cut off power to thousands https://www.sandiegouniontribune.com/sdut-power-outages-wildfires-2014may14-htmlstory.html Estimating Winds for Fire Behavior https://www.nwcg.gov/publications/pms437/weather/estimating-winds-for-fire-behavior Observing Fire Weather (see Wind Observations and Estimates) https://www.nwcg.gov/publications/pms437/weather/observing-fire-weather 1.1 City of Carlsbad https://www.sandiegocounty.gov/content/dam/sdc/oes/emergency_management/HazMit/2017/City- of-Carlsbad-HazMit-Section-5.pdf NOTE: TOP HAZARD LISTED IS FIRE Table 5.3-1 Summary of Potential Hazard-Related Exposure/Loss in Carlsbad Wildfire / Structure Fire Fire Regime II & IV Dec. 14, 2021 Item #16 Page 192 of 252 Attachment 2 – Malibu Ordinance No. 484 https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484 Supplemental Council Agenda Report Date prepared: April 22, 2021 Meeting date: April 26, 2021 Subject: Second Reading and Adoption of Ordinance No. 484 B. The City of Malibu is designated as a Very High Fire Hazard Severity Zone. The City was devastated by major fires in 2007 and 2018 due to power pole failures. In the case of the 2007 fire, wireless communications facilities contributed to the overburdened power pole. The 2018 Woolsey Fire, which affected Malibu and other parts of Los Angeles County, consumed over 96,000 acres, destroyed at Dec. 14, 2021 Item #16 Page 193 of 252 least 1,643 structures, killed three people, and prompted the evacuation of more than 295,000 people. It was one of several fires in California that ignited on the same day. Malibu has still not recovered. The 2007 fire burned 3,836 acres, 36 vehicles and 14 structures, including Castle Kashan and the Malibu Presbyterian Church, and damaged 19 other structures. It is essential that wireless communications facilities be engineered to prevent fire and withstand fire events as much as possible, and at least in a manner comparable to other commercial facilities with extensive, complicated electronics and wiring and flammable, sometimes hazardous and toxic, materials on site. SECTION 3. Zoning Text Amendment and Findings. A. The subject ZTA is consistent with the objectives, policies, general land uses and programs specified in the General Plan. The proposed amendment serves to enhance the Malibu General Plan Mission Statement, protect public safety and preserve Malibu’s natural and cultural resources. The following General Plan policies and implementation measures would be advanced as part of this Ordinance: • Policy 1.1.2: The City shall minimize the risk of loss from fire. Ordinance No. 484 Page 5 of 24 ____________________ • Policy 1.1.3: The City shall reduce the amount of non-essential toxic and hazardous substances. • Implementation Measure 2: Work with other agencies to ensure effective and efficient fire suppression, prevention and rescue services. • Implementation Measure 11: Develop guidelines and standards for all new and remodel structures to utilize fire-resistant building materials and designs, and, if feasible, to be sited to minimize fire hazards. • Implementation Measure 19: Regulate the transport, storage and use of toxic and hazardous materials. Attachment 3 – Malibu Sample Ordinance Language and Legal Letters 5G Sample Ordinance Language and Legal Letters Malibu Ordinance Re-Write Summary (8-23-20 )*** Malibu Wireless Code (8-21-20) Dec. 14, 2021 Item #16 Page 194 of 252 Response to Jonathan Kramer Memo (8-23-20) Appeal Mark Pollack City of Newport Beach Brief 8-25-20 *** MEMORANDUM From: W. Scott McCollough To: Malibu City Council Members Date: August 23, 2020 Subject: Summary and Explanation; Malibu Wireless Code Chapter 17.46 Replacement Concerning Wireless Antennas and Related Facilities The attached draft ordinance accomplishes a complete re-working of the current Malibu ordinance relating to wireless facilities placement. Some current substance was retained, but it appears in context with the new language and wording.1 The great preponderance of the wording, however, is basically new. Explanation for Section C (***see Subsections 6 (1500 ft setback) and 7 (fire hazard)***) Section C provides the general requirements for all facilities related to personal wireless service and the slightly broader class of “wireless facilities” covered by the Spectrum Act’s “minor modifications” provisions.2 2 As noted, however, Section F in some instances departs from the Section C general rules insofar as is necessary to implement federal law. 3 “Significant gap in coverage” and “least intrusive means” are crucial terms of art that are repeatedly applied throughout the personal wireless service portions of the ordinance. They are defined in Section O, and are further discussed in the next main portion of this memo. 4 This ordinance does not set the fees. Instead it contemplates the City will establish appropriate fees and levels by resolution, presumably based on the City’s reasonable costs as required by the FCC’s recently-affirmed order on that subject. Subsections 1 and 2 list what must be done and obtained prior to any installation depending on application type. Subsection 3 and 4 delegate certain functions – here determination of completeness and compliance – to the City of Malibu Community Development Director or its designee (“director”). Subsection 4 also requires the Planning Commission (“commission”) to find (at an appropriate point) whether the facility is required to “close a significant gap in coverage” and if so whether the proposed antenna or facility is “the least intrusive means to do so.”3 Subsection 5 has seminal procedural and substantive content requirements for all applications, absent an express exception elsewhere. Among these are certain binding representations and disclosures and some substantive obligations like a master plan, siting analysis, noise studies, automated monitoring. There is also an application fee.4 Subsection 6 sets out the City’s preferred zones and locations for facility placement. The general and primary preference is for placement in an existing site in a commercial area. If that is not feasible then the second choice is for public facilities or recreation zones, although those are disfavored. The last option is and must be placement in residential areas or near schools. Even so, placement within 1,500 feet of a residence or school is prohibited unless the applicant can demonstrate and the director/commission finds that is the only location that will close a significant gap, is the least intrusive means to do so and placement in that location best minimizes adverse impacts. This and other parts of Dec. 14, 2021 Item #16 Page 195 of 252 the ordinance contemplate that the director and/or commission will design basic forms that incorporate the content requirements and allow them to make fairly quick determinations whether the application is complete, compliant and proper for further processing. This is necessary since federal law imposes small windows for non-compliance determinations as part of the “shot clock” process. Subsection 7 restates the 1,500-foot set-back rule for residences and schools, and then imposes other design requirements, such as applicable codes, regulatory rules, prohibited interference with City communications systems, lighting, aesthetics, specifics on undergrounding and above-ground equipment, signage, noise and situations where the facility will largely provide coverage for outside-city areas. Finally, there are fire-hazard requirements, such as coordination with and monitoring by the Fire Department. Subsection 8 authorizes and requires engagement of an outside expert (paid for by the applicant) to review technical matters and for compliance with the ordinance’s strictures. Subsection 9 prescribes the conditions of approval that will attach to permits and apply throughout the permit and facility operational life, subject to amendment. This restates some of the matters in prior sections but addresses abandonment. Subsection 10 requires the applicant, operator and property owner (as appropriate) to fully indemnify the City for all potential liabilities, including from operation and maintenance. Dec. 14, 2021 Item #16 Page 196 of 252 Irene Tsutsui Comment Letter 2 plus attachments From: Irene <irenegdnight@earthlink.net> Sent: Sunday, November 21, 2021 6:51 PM To: Corey Funk <Corey.Funk@carlsbadca.gov> Subject: CARLSBAD POLICY 64 PUBLIC COMMENTS (SUBMITTED BY IRENE TSUTSUI) Dear Corey: I may be submitting additional comments tomorrow but wanted to get the bulk of my comments to you ASAP. Thank you for inviting comments from the public. I would appreciate an acknowledgement that you received my comments with attachments. Irene Tsutsui Carlsbad Constituent CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. Attachments below Dec. 14, 2021 Item #16 Page 197 of 252 Comments re Policy 64 submitted by Irene Tsutsui, Carlsbad constituent November 21, 2021 To Planning Dept Due to my huge concern about hazards especially electrical fires emanating from small cell wireless equipment, I have suggested some verbage for Policy 64 to protect the city and citizens against damages and costs. I have posted suggested modifications with reference links. The city makes it clear what it cannot do vis-a-vis its obligations to the telecoms, however, it falls short in ensuring that the city and its citizens are protected against hazards. Thus my focus is on these areas: Insurance, Indemnification, Notices, Prohibited areas (such as ridgelines and slopes), the front yard rule which is used in Elks Grove, Upgrades and keeping technology current, Compliance with the law, Annual Recertification. The Precautionary Principle holds the telecoms accountable and endeavors to prevent the cost of hazards such as electrical fires and collapses or errors in RF emissions readings from being borne by the city or its citizens. An attorney of Andrew Campanelli’s multi-decades long experience drafting city ordinances could help with specifics since he is aware of current pending legal cases and he understands the complexities. My comments follow his recommended approach, and I included language from expert sources codifying how a city can protect itself and its citizens’ health and welfare. STATING THE CITY’S OVERALL INTENT: (suggest adding it on page 1 of Policy 64 as a fourth paragraph right before the Policy’s stated purpose. Add: "The City ensures WCF placement in a way that does not necessarily cause adverse impacts on aesthetics, reduction in property values or cause damage as a result of such things as insufficient fall zones, structural failures, electrical fires or other related adverse events." (Please add additional important language similar to Malibu’s statement) https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484 “Carlsbad’s Poinsettia fire in May 2014 due in part to high winds accelerating the spread of fire throughout hills and slopes makes it essential that wireless communication facilities be engineered to prevent fire and withstand fire events as much as possible. Precautionary measures should be taken in a manner comparable to other commercial facilities with extensive, complicated electronics and wiring and flammable, sometimes hazardous and toxic, materials on site.” Policy 64 Item E. Application and Review Guidelines (Pages 16 through 20) INSURANCE AND INDEMNIFICATION, California Coastal Commission and NEPA permits Application and Review Guidelines (pages 16 through 20) (https://scientists4wiredtech.com/malibu Items 16, 17, 18 and 19) Add as item 17: "Insurance.The applicant shall maintain current at all times liability and property insurance for each small cell installation in the Public Right Way. Prior to the issuance of a personal wireless service related permit, the applicant shall pay for and provide a copy of a policy of General Liability Insurance issued by an “A” rated Insurance company and cover the named applicant and each operator of an antenna if different than the applicant. Each Such policy shall be a claims made policy, listing the applicant as a primary insured, and the City as an additional insured, in the minimum amount of $2,000,000 / $25,000,000. The policy shall not have a pollution or other exclusion which excludes injuries or damages from EMF/RF exposures. A true and correct copy of the policy of insurance shall constitute proof of insurance required by this Subsection.” Dec. 14, 2021 Item #16 Page 198 of 252 Encinitas also has an extensive section on insurance: https://ed84ae68-328e-42f4-847a- 66fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf P22 Add as item18 “Indemnification.Prior to issuance of a personal wireless service related permit, to the fullest extent permitted by law, the Applicant and/or any Licensee under any Master License Agreement, and any successors and assigns, shall defend, indemnify and hold harmless City, its employees, agents and officials, from and against any liability, claims, suits, actions, arbitration proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, but not limited to, actual attorney’s fees, litigation expenses, and court costs of any kind, without restriction or limitation,incurred in relation to, as a consequence of, arising out of, or in any way attributable to, actually, allegedly or implied, in whole or in part, related to the wireless facility, the issuance of any permit or entitlement in connection therewith and the operation of the facility thereafter. The applicant shall pay such obligations as they are incurred by City, its employees, agents and officials, and in the event of any claim or lawsuit,shall submit a deposit in such amount as the City reasonably determines necessary to protect the City from exposure to fees, costs or liability with respect to such claim or lawsuit. If the applicant or operator is a subsidiary of a parent corporation the parent corporation shall also bind itself to the indemnification requirement and amount.” Add if applicable: “Prior to the issuance of a permit, the applicant shall obtain a Coastal Zone permit fromthe California Coastal Commission or its designated agent, if the placement oft he wireless service equipment is intended to occur in a zone requiring such permit.” “Prior to the issuance of a permit, the applicant shall establish and prove it has complied with NEPA, has completed the FCC’s NEPA checklist and to the extent required has done a NEPA environmental analysis and provided the results of that analysis to the FCC. If exemption is claimed, applicant must state the basis for such exemption and provide proof, including all supporting documents that such exempt installation meets prescribed requirements.” Policy 64 Page 20 Application and Review Guidelines (Malibu ord477 U page 10 of 16) http://www.keepcellantennasawayfromourelkgrovehomes.org/cell-antenna-policies/malibu Malibu-ord-unsigned-477U (http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2020/12/Malibu- ord-unsigned-477U.pdf) Item E Add as item 19 Public Notice: (1) Within seven (7) calendar days after an application is submitted to the City, the applicant shall: (1) post notice at the proposed project site in a location near to and visible from the ROW and (2) provide the City with Dec. 14, 2021 Item #16 Page 199 of 252 evidence that such notice has been posted. The applicant shall maintain and replace the posted notice as necessary during the entire application review process until the Director acts on the application and all appeals have been exhausted. The posted notice shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for at least 180 calendar days. The posted notice shall be at minimum 17 inches wide by 11 inches tall. The posted notice shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians or other users in the ROW. The City encourages applicants to consult with the Planning Department on placement locations to avoid any potential hazards. Public Notice (2) Within five (5) business days from the date on which an application is determined to be complete, the Director shall notify in writing of the filing of the application property owners and residents of all property within a one thousand(1,000) foot radius of the proposed project, but in no event fewer than the owners and occupants of ten (10) developed properties. The purpose ofthe notice is to inform the surrounding property owners and residents oft he filing of the application and provide an opportunity for comment on the application prior to the Director’s decision. The notice shall describe the request, provide a map showing the specific location of the proposed project, describe the review process and time frames, indicate how to contact the applicant and case planner assigned to the application, and the City-assigned application identifier. Suggested verbage similar to Encinitas ord re fire issue: d84ae68-328e-42f4-847a 6fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf (P12) Add as item 20 g) Fire Department Review. After submittal by the applicant, the Director shall transmit the entire application packet to the Fire Prevention Division. The Fire Chief shall review the application for compliance with objective health and safety standards related to fire hazards, including but not limited to all applicable provisions in Title 10 of the Encinitas Municipal Code. The Fire Chief shall inform the Director in writing of its conclusions and any recommended conditions for public health and safety. Policy 64page 7 Item A Location Guidelines (For Placement of WCFs (including SWFs) Add item 6 Fire Risk: “No WCF should be installed on or near a ridgeline or slope abutting a chapparal populated area.” Policy 64 Page 7 Discouraged Locations Section A 2: Add item g “Near or on a ridgeline or slope abutting a chaparral populated area. See item 6.” Policy 64 Page 18 Dec. 14, 2021 Item #16 Page 200 of 252 Application and Review Guidelines Item E 4.5 Add item i “Proximity to a ridgeline or slope abutting a chaparral populated area. See item 6” ************************************ For reference see “Prohibited Locations” MALIBU https://scientists4wiredtech.com/malibu Item D 1 (b) D. Standards for Personal Wireless Service Facilities Not Located Within a Public Right-of-Way. b) Prohibited Locations. No personal wireless service facility shall be established in the locations described in subparagraphs (i), (ii) and (iii)herein. (i) Ridgelines.No personal wireless service facility shall be placed on or near a ridgeline. (ii)Residential Zones.No personal wireless service facility shall be placed within a residential zone, including areas set aside for open space, parks or playgrounds. (iii)Open Space.No personal wireless service facility shall be placed within an open space zone or park. A personal wireless service facility is not and shall not be deemed a"public utility" as that term is otherwise defined and understood in the Malibu Municipal Code regarding development in such open space zones. Sections 3 and 4 mention“minimizing risk of loss” and “minimizing risks to life and property from fire hazard. https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484 (Elk Grove) City of EG Ordinance 19-2019 http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2019/09/City-of- EG-Ordinance-19-2019.pdf Page 13 See EG ord items A 6 b, 8 b and item C 3 for FRONT YARD RULE (discussed at Zoom meeting11/2/21 with Eric Lardy, Corey Funk, Mark Graham and Carlsbad residents) Policy 64 Page 8 D Design Guidelines Suggestions on where to insert the language: Add Elk Grove 6 b verbage to Policy 64 Page 8 item 5 Setbacks Add Elk Grove 8 b and C3 verbage to Policy 64 Page 8 item 6 Building or Structure Mounted WCFs and SWFs 23.94.050 Development standards. (Elk Grove ord verbage) A. General Development Standards. Unless otherwise exempt pursuant to EGMC Section 23.94.040,Exemptions, or as otherwise provided in an agreement approved by the Elk Grove City Council pursuant to EGMC Section 23.94.035. Small Cell Wireless Communications Facilities, the following general development standards shall apply to all wireless communications facilities: 1. All wireless communications facilities shall comply with all applicable requirements of the current uniform codes as adopted by the City and shall be consistent with the General Plan and this title, as well as other standards and guidelines adopted by the City. ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• Dec. 14, 2021 Item #16 Page 201 of 252 ** ** ** ** ** ** 6. In a residential zoning district, the following development standards shall apply, unless the applicant can demonstrate with substantial evidence satisfactory to the approving authority that such siting limitation will materially inhibit personal wireless service as to a particular small cell wireless communication facility. a. No small cell wireless communication facility shall be placed within five hundred (500' O") feet of another small cell wireless communications facility. b. No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from,a front yard of any residential dwelling. c. The cumulative total of all associated equipment from all wireless communications providers. including antennas, for a single facility or property shall not exceed twenty-eight (28) cubic feet in volume. 6-7._At least ten (1 O' O") feet of horizontal clearance shall be maintained between any part of the antenna and any power lines unless the antenna is installed to be an integral part of a utility tower or facility. 7-8._ Development Standards for Antennas(Excluding Amateur Radio Antennas). Unless otherwise exempt pursuant to EGMC Section 23.94.040, Exemptions, the following development standards shall apply to receive-only antennas (ground and building-mounted), parabolic antennas, and satellite earth stations as defined in this section: a. Maximum Number. One (1) wireless facility per parcel, unless the applicant can demonstrate the service need for additional antenna. b. Antenna Location. Parabolic antenna and satellite earth stations shall be ground-mounted in residential zoning districts. In all nonresidential zoning districts, the preference is for building-mounted antennas. No antenna shall be located in the required front or street side yard of any parcel unless entirely screened from pedestrian view of the abutting street rights-of-way (excluding alleys). In all zoning districts, ground-mounted antennas shall be situated as close to the ground as possible to reduce visual impact without compromising their function and all portions of the structure/antenna shall be set back a minimum of five (5' O")feet from any property line. c. Height Limit. The height limit for ground-mounted antennas is six (6' O") feet. ……. ** ** ** ** ** ** C. Development Standards for Towers. The following development standards shall apply to towers (including co-location facilities) as defined in EGMC Section 23.94.020, Definitions: 1. Site Design. All facilities (including related equipment) shall be designed to minimize the visual impact to the greatest extent feasible, considering technological requirements, by means of placement, screening, and camouflage, to be compatible with existing architectural elements, landscape elements, and other site characteristics. The applicant shall use the smallest and least visible antennas possible to accomplish the owner/operator's coverage objective. A visual Dec. 14, 2021 Item #16 Page 202 of 252 impact analysis is required to demonstrate how the proposed facility will appear from public rights-of-way (including public trails). 2. Safety Design. All facilities shall be designed so as to be resistant to and minimize opportunities for unauthorized access, climbing, vandalism, graffiti, and other conditions which would result in hazardous conditions, visual blight, or attractive nuisances. 3. Location. Towers shall not be located in any required front or street side yard in any zoning district. The setback distance from any abutting street right-of-way, residential property line, or public trail shall be equal to the height of the facility (tower and related equipment). Otherwise, the minimum setback distance from all other property lines shall be at least equal to twenty(20%) percent of the height of the tower. Existing towers may be allowed to increase the height without requiring the tower to be relocated as part of the conditional use permit approval, provided the overall maximum height of the tower does not exceed the height limit listed in subsection (C)(4) of this section, unless an exception is approved by the designated approving authority. 4. Height Limit. The height limit for towers ** ** ** ** ** ** Policy 64Page 15 In order to ensure a non-biased, hands off objective certification that does not favor either the site developer or city, the following added verbage is recommended: Performance Guidelines Item D 5 Add word “independent”(radio frequency engineer) and “this type of” (facility) line 10 through 12 “If the the city planner or engineering manager finds good cause to believe that the facility is not in compliance with any laws applicable to human exposure to RF emissions, the city planner or engineering manager may require the permittee to submit a written report certified by a qualified, independent radio frequency engineer familiar with this type of facility that certifies that the facility is in compliance with all such laws.“ Policy 64 Page 15-16 Item D Add verbage to item D 5 or create new item D 7 (addresses technology and safety upgrades) (Add verbage) https://scientists4wiredtech.com/malibu items 24 and 25 COMPLIANCE WITH APPLICABLE LAW Permit,review, renewal and revocation procedure. The City finds that the technology associated with telecommunications equipment is subject to rapid changes and upgrades as a result of industry competition and customer demands, and anticipates that telecommunications antennas and related equipment with reduced visual impacts will be available from time to time with comparable or improved coverage and capacity capabilities. The City further finds that it is in the interest of the public health, safety, and welfare that telecommunications providers be required to replace older facilities with newer equipment of equal or greater capabilities and reduced visual impacts as technological improvements become available. Therefore, any modifications requested to an existing facility for which a permit issued pursuant to this Chapter authorizing establishment of a wireless facility shall permit the city planner or engineering manager to review the provider’s existing facility to determine whether requiring Dec. 14, 2021 Item #16 Page 203 of 252 newer equipment or applying new screening techniques that reduce visual impacts is appropriate if technically feasible. At any time,the city planner or engineering manager may initiate proceedings to revoke a permit issued pursuant to this Chapter. Grounds for revocation shall be limited to a finding that the owner or operator has abandoned the facility, the facility is no longer in compliance with either the general requirements or design standards of this Title, the conditions of approval and the owner or operator has failed to bring the facility into compliance within ninety (90) days after a notice has been sent by the director requiring the facility to be brought into compliance, the facility is no longer in compliance with applicable FCC or FAA regulations, the facility has not been upgraded to reduce or minimize its impact to the extent reasonably permitted by the technology available at the time of any requested modifications, or if the city planner or engineering manager determines that revocation would be in the best interest of the public health, safety, or welfare, including circumstances like fire hazards, transitional areas or view corridors. ANNUAL RECERTIFICATION It is important that telecoms know their smart cell wireless equipment and installations will be tested on a regular basis so that they will be encouraged to test their own equipment before installing them, and they are incentivized to install safe, up to date, reliable equipment in such a way that ensures satisfactory quality and performance. Currently there is no regulatory agency or board testing or monitoring such installations and there is no certification process; thus I suggest the following language be added to Policy 64 as a precautionary measure of protection to the city and its citizens to discourage failures and hazards. MODEL WIRELESS TELECOMMUNICATIONS ORDINANCE for Siting of "Small Cell" Telecommunication Infrastructure https://wisconsinsafetech.files.wordpress.com/2020/05/5g-model-telecom-ordinance-by-americans- for-responsible-tech-1.pdf ( Page 7 Policy 64 Page20 Add a new section Page 20 (before “SEVERABILITY”) “F. Annual Recertification “ * The city shall have the right to employ a qualified, independent radio frequency engineer to conduct an annual random and unannounced test of the Permittee’s small cell wireless installations located within the city to certify their compliance with an 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. * 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 city 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 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. Dec. 14, 2021 Item #16 Page 204 of 252 * Any small cell wireless installation which is not removed within 30 days after being listed as no longer in use in the annual recertification affidavit shall be subject to a fine of $100/day until such installation is removed. * Where such annual recertification has not been properly or timely submitted, or equipment no longer in use has not been removed within the required30 day period, no further applications for small cell wireless installations will be accepted by the city until such time as the annual recertification has been submitted and all fees and fines paid. References https://scientists4wiredtech.com/malibu/ Items 16, 17, 18 and 19) (Malibu ord477 U page 10 of 16) http://www.keepcellantennasawayfromourelkgrovehomes.org/cell-antenna-policies/malibu Malibu-ord-unsigned-477U Download (http://www.keepcellantennasawayfromourelkgrovehomes.org/wp- content/uploads/2020/12/Malibu-ord-unsigned-477U.pdf) https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484 (Elk Grove) City of EG Ordinance 19-2019 http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2019/09/City-of- EG-Ordinance-19-2019.pdf Page 13 https://scientists4wiredtech.com/malibu https://wisconsinsafetech.files.wordpress.com/2020/05/5g-model-telecom-ordinance-by-americans- for-responsible-tech-1.pdf Page 7 https://ed84ae68-328e-42f4-847a- 66fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf PP 12 & 22 https://stop5ginternational.org/checklist-for-municipal-codes-addressing-small-cell-installations/ Dec. 14, 2021 Item #16 Page 205 of 252 ART 1-21 Checklist for Municipal Codes Addressing Small Cell Installa9ons ___ The code requires applicants to document possession of liability insurance which does not exclude health claims due to radiofrequency (RF) radia9on exposure. ___ The code requires the applicant to document significant effort to place antennas in non-residen9al areas, and away from schools and daycare centers. ––– The code requires applicant to provide to all homeowners within 500 feet of the proposed installa9on no9fica9on by cer9fied mail. ___ The code requires the applicant to document a significant gap in service which will be remedied by the proposed small cell installa9on. ___ The code requires the applicant to post conspicuous signs of pending applica9ons at all proposed sites. ___ The code requires that RF radia9on emission limits apply to the aggregate emissions of all co-located equipment. ___ The code requires applicants to cer9fy that all small cell installa9ons will comply with provisions of the Americans with Disabili9es Act. ––– The code permits the municipality to conduct random, unannounced RFR emission tes9ng of any small cell installa9on at the expense of the operator, and provides for substan9al penal9es for viola9ons. ___ The code requires applica9ons and permits for all small cell antennas including strand-mounted antennas. 184 Main Sti-eet • Port Washington • ew YOl'k • 516.8 3.0887 · www.AmericansForResponsibleTech.org Dec. 14, 2021 Item #16 Page 206 of 252 Irene Tsutsui comment letter 3 plus attachment Dear Corey: As a follow up to my concerns and suggestions submitted yesterday (attached), please consider the following four topics regarding the revision of Policy 64: 1) My concern over the fire risk in smart cell wireless facility installations is heightened by Susan Foster's technical description of the risk inherent in the smart meter component of smart cell towers as well as the surge protection and on/off process triggering fire issues. Please review her discussing the risks in the letter she wrote to the Malibu mayor and city council. https://urldefense.com/v3/__https://www.activistpost.com/2020/09/firefighters-testimony-on-cell- towers-and-5g-is-not-favorable-california.html__;!!E_4xU6-vwMWK-Q!_v9-tytMEjoPVutFQFVi- zJcXam7PeTycnVOmuM2loFKpKpHrCiFDgCjtBtjrS1-kfOciLg$ If she is correct in her assessment that there has been no substantive change as far as correcting the problems, that should compel Carlsbad's planning department to ensure annual inspections of wireless facilities take place, and upgrades are made to eliminate the threat of fires as Ms. Foster describes. The lack of safety monitoring of smart cell wireless facilities establishes the need for the city to conduct regular inspections by a qualified, independent, RF engineer who can identify problems of the kind described by Ms. Foster. Telecoms or site developers would bear the cost of needed corrections and upgrades. The Annual Recertification which I suggested in my comments sent yesterday (attached) would give the city the ability to effect such corrections and upgrades. Without them you are left with a ticking time bomb. The inspections should apply to requiring upgrades of fire retardant materials being used in equipment and installations. Consultation with Carlsbad's and San Diego County's fire departments as to safe materials and installation methods could add a measure of safety as well. 2) The uncertainty of judicial outcomes and unsettled science (although many thousands of peer reviewed studies have shown that harmful EMF/RF radiation exists) in addition to the fire risk factor makes a compelling argument to apply the Precautionary Principle to Carlsbad's Policy 64. THE PRECAUTIONARY PRINCIPLE IN ACTION A HANDBOOK https://urldefense.com/v3/__https://calepa.ca.gov/wp-content/uploads/sites/6/2016/10/EnvJustice- Documents-2003yr-Appendices-AppendixI.pdf__;!!E_4xU6-vwMWK-Q!_v9-tytMEjoPVutFQFVi- zJcXam7PeTycnVOmuM2loFKpKpHrCiFDgCjtBtjrS1-yjUG6wM$ What is the Precautionary Principle? Better Safe Than Sorry https://urldefense.com/v3/__https://www.shieldyourbody.com/the-precautionary- principle__;!!E_4xU6-vwMWK-Q!_v9-tytMEjoPVutFQFVi- zJcXam7PeTycnVOmuM2loFKpKpHrCiFDgCjtBtjrS1-FT7uPfQ$ Dec. 14, 2021 Item #16 Page 207 of 252 Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The precautionary principle is defined by these key elements: * Those in authority must anticipate harm before a harmful activity occurs. * It is the responsibility of those doing an activity to show that the activity will not result in significant harm. * Those in authority must act to introduce cost-effective control measures to prevent or minimize harm resulting from the activity, even in the absence of scientific certainty. * The need for control measures increases with the degree of uncertainty and level of possible harm resulting from the activity. The Precautionary Principle is an environmental policy designed to protect citizens from potentially adverse environmental influences, in the face of incomplete information about the risks these influences present. Per the principle, the estimated costs of immediate action must be compared with the estimated potential cost of inaction. If the potential cost of inaction is plausible, significant and irreversible, we should act. 3) A recent court ruling in favor of Anura Lawson, a teacher in a disability case, lends greater credibility to the harmful effects of radiation emanating from smart cell wireless facilities. Like the recent ruling against the FCC, this is a key ruling. The fact that such a ruling encompasses a broader scope perspective than would an ADA case, makes it an even more compelling argument that harmful radiation causes injury thus there is a vital need for the city to make its best effort in protecting citizens against such radiation. JML Law Wins Appeal in 'Unprecedented' Disability Case Against LAUSD For Failure to Accommodate Teacher With Electromagnetic Hypersensitivity CaseJML Law wins appeal before CA Court of Appeal in ‘unprecedented’ disability case against LAUSD. Brown v. LAUSD (Appeal No. B294240) establishes that symptoms of ‘electromagnetic hypersensitivity’ could be deemed a ‘physical disability’ under the California Fair Employment and Housing Act (“FEHA”), which is broader in scope than the ADA. The complete published opinion by the Court For) more information, please visit https://urldefense.com/v3/__http://www.jmllaw.com__;!!E_4xU6-vwMWK-Q!_v9-tytMEjoPVutFQFVi- zJcXam7PeTycnVOmuM2loFKpKpHrCiFDgCjtBtjrS1-BCwQO1k$ https://urldefense.com/v3/__https://finance.yahoo.com/news/jml-law-wins-appeal-unprecedented- 161500982.html__;!!E_4xU6-vwMWK-Q!_v9-tytMEjoPVutFQFVi- zJcXam7PeTycnVOmuM2loFKpKpHrCiFDgCjtBtjrS1-uo6NYVc$ Dec. 14, 2021 Item #16 Page 208 of 252 4) On January 21, 2021 I submitted petitions from 150 to 200 citizens (I retained copies of most of the signed petitions) who called for a moratorium on smart cell antennas and towers. The following is the concluding paragraph of the petition (on file with the City Clerk). "Other communities in CA have developed more detailed and stringent city ordinances to protect property values, monitor cell phone tower rollouts/EMF emissions and address health concerns. Actively investigating those options so as to control what telecommunications equipment is allowed into the city prior to any additional applications being approved and applying any adopted ordinances to previously approved cell sites retroactively (e.g. minimum distance away from schools) is a responsible action. This is needed to avoid changing Carlsbad into an unhealthy city to live in not to mention unsightly landscape of ubiquitous towers, boxes, wires and cameras. Covid subsequently restricted further effort to obtain signatures, but the ease of getting these signatures speaks to the serious reservations Carlsbad residents harbor over 4G/5G smart cell facilities in their neighborhoods, schools, healthcare facilities etc. Please consider the above in the Planning Department's revision of Policy 64. The city has many options available that can limit the proliferation of smart cell facilities. It must recognize the risks inherent in not making telecoms and site developers responsible for the equipment they install and not restricting installations in areas that are fire prone or apt to cause immeasurable damage to property and life as well as property values. Ms. Foster has sounded the alarm bells over the fire hazards of smart cell wireless equipment. Ms. Lawson's victory in the courts signals that a new look at the health hazards is imminent. It would be in the city's best interest to implement the kind of changes in Policy 64 that would work to address the urgency moving in a precautionary preventive approach rather than suffer after the fact which the city of Malibu learned the hard way via its 2007 costly fire damage from utility poles overloaded with smart cell wireless equipment. Adopting Elk Groves Front Yard Rule would be a great first step in the right direction as would prohibiting WCF installations in Carlsbad's fire prone areas and requiring annual inspections to monitor facilities and correct problems such as the smart meter and connector issue. CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. Dec. 14, 2021 Item #16 Page 209 of 252 Attachment 1 – November 21, 2021 comments as previously submitted Comments re Policy 64 submitted by Irene Tsutsui, Carlsbad constituent November 21, 2021 To Planning Dept Due to my huge concern about hazards especially electrical fires emanating from small cell wireless equipment, I have suggested some verbage for Policy 64 to protect the city and citizens against damages and costs. I have posted suggested modifications with reference links. The city makes it clear what it cannot do vis-a-vis its obligations to the telecoms, however, it falls short in ensuring that the city and its citizens are protected against hazards. Thus my focus is on these areas: Insurance, Indemnification, Notices, Prohibited areas (such as ridgelines and slopes), the front yard rule which is used in Elks Grove, Upgrades and keeping technology current, Compliance with the law, Annual Recertification. The Precautionary Principle holds the telecoms accountable and endeavors to prevent the cost of hazards such as electrical fires and collapses or errors in RF emissions readings from being borne by the city or its citizens. An attorney of Andrew Campanelli’s multi-decades long experience drafting city ordinances could help with specifics since he is aware of current pending legal cases and he understands the complexities. My comments follow his recommended approach, and I included language from expert sources codifying how a city can protect itself and its citizens’ health and welfare. STATING THE CITY’S OVERALL INTENT: (suggest adding it on page 1 of Policy 64 as a fourth paragraph right before the Policy’s stated purpose. Add: "The City ensures WCF placement in a way that does not necessarily cause adverse impacts on aesthetics, reduction in property values or cause damage as a result of such things as insufficient fall zones, structural failures, electrical fires or other related adverse events." (Please add additional important language similar to Malibu’s statement) https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484 Dec. 14, 2021 Item #16 Page 210 of 252 “Carlsbad’s Poinsettia fire in May 2014 due in part to high winds accelerating the spread of fire throughout hills and slopes makes it essential that wireless communication facilities be engineered to prevent fire and withstand fire events as much as possible. Precautionary measures should be taken in a manner comparable to other commercial facilities with extensive, complicated electronics and wiring and flammable, sometimes hazardous and toxic, materials on site.” Policy 64 Item E. Application and Review Guidelines (Pages 16 through 20) INSURANCE AND INDEMNIFICATION, California Coastal Commission and NEPA permits Application and Review Guidelines (pages 16 through 20) (https://scientists4wiredtech.com/malibu Items 16, 17, 18 and 19) Add as item 17: "Insurance.The applicant shall maintain current at all times liability and property insurance for each small cell installation in the Public Right Way. Prior to the issuance of a personal wireless service related permit, the applicant shall pay for and provide a copy of a policy of General Liability Insurance issued by an “A” rated Insurance company and cover the named applicant and each operator of an antenna if different than the applicant. Each Such policy shall be a claims made policy, listing the applicant as a primary insured, and the City as an additional insured, in the minimum amount of $2,000,000 / $25,000,000. The policy shall not have a pollution or other exclusion which excludes injuries or damages from EMF/RF exposures. A true and correct copy of the policy of insurance shall constitute proof of insurance required by this Subsection.” Encinitas also has an extensive section on insurance: https://ed84ae68-328e-42f4-847a- 66fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf P22 Add as item18 “Indemnification.Prior to issuance of a personal wireless service related permit, to the fullest extent permitted by law, the Applicant and/or any Licensee under any Master License Agreement, and any successors and assigns, shall defend, indemnify and hold harmless City, its employees, agents and officials, from and against any liability, claims, suits, actions, arbitration proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, but not limited to, actual attorney’s fees, litigation expenses, and court costs of any kind, without restriction or limitation,incurred in relation to, as a consequence of, arising out of, or in any way attributable to, actually, allegedly or implied, in whole or in part, related to the wireless facility, the issuance of any permit or entitlement in connection therewith and the operation of the facility thereafter. The applicant shall pay such obligations as they are incurred by City, its employees, agents and officials, and in the event of any claim or lawsuit,shall submit a deposit in such amount as the City reasonably determines necessary to protect the City from exposure to fees, costs or liability with respect to such claim or lawsuit. If the applicant or operator is a subsidiary of a parent corporation the parent corporation shall also bind itself to the indemnification requirement and amount.” Add if applicable: “Prior to the issuance of a permit, the applicant shall obtain a Coastal Zone permit fromthe California Coastal Commission or its designated agent, if the placement oft he wireless service equipment is intended to occur in a zone requiring such permit.” “Prior to the issuance of a permit, the applicant shall establish and prove it has complied with NEPA, has completed the FCC’s NEPA checklist and to the extent required has done a NEPA environmental analysis Dec. 14, 2021 Item #16 Page 211 of 252 and provided the results of that analysis to the FCC. If exemption is claimed, applicant must state the basis for such exemption and provide proof, including all supporting documents that such exempt installation meets prescribed requirements.” Policy 64 Page 20 Application and Review Guidelines (Malibu ord477 U page 10 of 16) http://www.keepcellantennasawayfromourelkgrovehomes.org/cell-antenna-policies/malibu Malibu-ord-unsigned-477U (http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2020/12/Malibu- ord-unsigned-477U.pdf) Item E Add as item 19 Public Notice: (1) Within seven (7) calendar days after an application is submitted to the City, the applicant shall: (1) post notice at the proposed project site in a location near to and visible from the ROW and (2) provide the City with evidence that such notice has been posted. The applicant shall maintain and replace the posted notice as necessary during the entire application review process until the Director acts on the application and all appeals have been exhausted. The posted notice shall be composed from durable quality and weather-resistant materials that will not deteriorate under normal circumstances for at least 180 calendar days. The posted notice shall be at minimum 17 inches wide by 11 inches tall. The posted notice shall not be placed in any location where it would obstruct travel or visibility for vehicles, bicycles, pedestrians or other users in the ROW. The City encourages applicants to consult with the Planning Department on placement locations to avoid any potential hazards. Public Notice (2) Within five (5) business days from the date on which an application is determined to be complete, the Director shall notify in writing of the filing of the application property owners and residents of all property within a one thousand(1,000) foot radius of the proposed project, but in no event fewer than the owners and occupants of ten (10) developed properties. The purpose ofthe notice is to inform the surrounding property owners and residents oft he filing of the application and provide an opportunity for comment on the application prior to the Director’s decision. The notice shall describe the request, provide a map showing the specific location of the proposed project, describe the review process and time frames, indicate how to contact the applicant and case planner assigned to the application, and the City-assigned application identifier. Suggested verbage similar to Encinitas ord re fire issue: Dec. 14, 2021 Item #16 Page 212 of 252 d84ae68-328e-42f4-847a 6fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf (P12) Add as item 20 g) Fire Department Review. After submittal by the applicant, the Director shall transmit the entire application packet to the Fire Prevention Division. The Fire Chief shall review the application for compliance with objective health and safety standards related to fire hazards, including but not limited to all applicable provisions in Title 10 of the Encinitas Municipal Code. The Fire Chief shall inform the Director in writing of its conclusions and any recommended conditions for public health and safety. Policy 64page 7 Item A Location Guidelines (For Placement of WCFs (including SWFs) Add item 6 Fire Risk: “No WCF should be installed on or near a ridgeline or slope abutting a chapparal populated area.” Policy 64 Page 7 Discouraged Locations Section A 2: Add item g “Near or on a ridgeline or slope abutting a chaparral populated area. See item 6.” Policy 64 Page 18 Application and Review Guidelines Item E 4.5 Add item i “Proximity to a ridgeline or slope abutting a chaparral populated area. See item 6” ************************************ For reference see “Prohibited Locations” MALIBU https://scientists4wiredtech.com/malibu Item D 1 (b) D. Standards for Personal Wireless Service Facilities Not Located Within a Public Right-of-Way. b) Prohibited Locations. No personal wireless service facility shall be established in the locations described in subparagraphs (i), (ii) and (iii)herein. (i) Ridgelines.No personal wireless service facility shall be placed on or near a ridgeline. (ii)Residential Zones.No personal wireless service facility shall be placed within a residential zone, including areas set aside for open space, parks or playgrounds. (iii)Open Space.No personal wireless service facility shall be placed within an open space zone or park. A personal wireless service facility is not and shall not be deemed a"public utility" as that term is otherwise defined and understood in the Malibu Municipal Code regarding development in such open space zones. Sections 3 and 4 mention“minimizing risk of loss” and “minimizing risks to life and property from fire hazard. https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484 (Elk Grove) City of EG Ordinance 19-2019 ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• Dec. 14, 2021 Item #16 Page 213 of 252 http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2019/09/City-of- EG-Ordinance-19-2019.pdf Page 13 See EG ord items A 6 b, 8 b and item C 3 for FRONT YARD RULE (discussed at Zoom meeting11/2/21 with Eric Lardy, Corey Funk, Mark Graham and Carlsbad residents) Policy 64 Page 8 D Design Guidelines Suggestions on where to insert the language: Add Elk Grove 6 b verbage to Policy 64 Page 8 item 5 Setbacks Add Elk Grove 8 b and C3 verbage to Policy 64 Page 8 item 6 Building or Structure Mounted WCFs and SWFs 23.94.050 Development standards. (Elk Grove ord verbage) A. General Development Standards. Unless otherwise exempt pursuant to EGMC Section 23.94.040,Exemptions, or as otherwise provided in an agreement approved by the Elk Grove City Council pursuant to EGMC Section 23.94.035. Small Cell Wireless Communications Facilities, the following general development standards shall apply to all wireless communications facilities: 1. All wireless communications facilities shall comply with all applicable requirements of the current uniform codes as adopted by the City and shall be consistent with the General Plan and this title, as well as other standards and guidelines adopted by the City. ** ** ** ** ** ** 6. In a residential zoning district, the following development standards shall apply, unless the applicant can demonstrate with substantial evidence satisfactory to the approving authority that such siting limitation will materially inhibit personal wireless service as to a particular small cell wireless communication facility. a. No small cell wireless communication facility shall be placed within five hundred (500' O") feet of another small cell wireless communications facility. b. No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from,a front yard of any residential dwelling. c. The cumulative total of all associated equipment from all wireless communications providers. including antennas, for a single facility or property shall not exceed twenty-eight (28) cubic feet in volume. 6-7._At least ten (1 O' O") feet of horizontal clearance shall be maintained between any part of the antenna and any power lines unless the antenna is installed to be an integral part of a utility tower or facility. 7-8._ Development Standards for Antennas(Excluding Amateur Radio Antennas). Unless otherwise exempt pursuant to EGMC Section 23.94.040, Exemptions, the following development standards shall apply to receive-only antennas (ground and building-mounted), parabolic antennas, and satellite earth stations as defined in this section: a. Maximum Number. One (1) wireless facility per parcel, unless the applicant can demonstrate the service need for additional antenna. b. Antenna Location. Parabolic antenna and satellite earth stations shall be Dec. 14, 2021 Item #16 Page 214 of 252 ground-mounted in residential zoning districts. In all nonresidential zoning districts, the preference is for building-mounted antennas. No antenna shall be located in the required front or street side yard of any parcel unless entirely screened from pedestrian view of the abutting street rights-of-way (excluding alleys). In all zoning districts, ground-mounted antennas shall be situated as close to the ground as possible to reduce visual impact without compromising their function and all portions of the structure/antenna shall be set back a minimum of five (5' O")feet from any property line. c. Height Limit. The height limit for ground-mounted antennas is six (6' O") feet. ……. ** ** ** ** ** ** C. Development Standards for Towers. The following development standards shall apply to towers (including co-location facilities) as defined in EGMC Section 23.94.020, Definitions: 1. Site Design. All facilities (including related equipment) shall be designed to minimize the visual impact to the greatest extent feasible, considering technological requirements, by means of placement, screening, and camouflage, to be compatible with existing architectural elements, landscape elements, and other site characteristics. The applicant shall use the smallest and least visible antennas possible to accomplish the owner/operator's coverage objective. A visual impact analysis is required to demonstrate how the proposed facility will appear from public rights-of-way (including public trails). 2. Safety Design. All facilities shall be designed so as to be resistant to and minimize opportunities for unauthorized access, climbing, vandalism, graffiti, and other conditions which would result in hazardous conditions, visual blight, or attractive nuisances. 3. Location. Towers shall not be located in any required front or street side yard in any zoning district. The setback distance from any abutting street right-of-way, residential property line, or public trail shall be equal to the height of the facility (tower and related equipment). Otherwise, the minimum setback distance from all other property lines shall be at least equal to twenty(20%) percent of the height of the tower. Existing towers may be allowed to increase the height without requiring the tower to be relocated as part of the conditional use permit approval, provided the overall maximum height of the tower does not exceed the height limit listed in subsection (C)(4) of this section, unless an exception is approved by the designated approving authority. 4. Height Limit. The height limit for towers ** ** ** ** ** ** Policy 64Page 15 In order to ensure a non-biased, hands off objective certification that does not favor either the site developer or city, the following added verbage is recommended: Performance Guidelines Item D 5 Add word “independent”(radio frequency engineer) and “this type of” (facility) line 10 through 12 Dec. 14, 2021 Item #16 Page 215 of 252 “If the the city planner or engineering manager finds good cause to believe that the facility is not in compliance with any laws applicable to human exposure to RF emissions, the city planner or engineering manager may require the permittee to submit a written report certified by a qualified, independent radio frequency engineer familiar with this type of facility that certifies that the facility is in compliance with all such laws.“ Policy 64 Page 15-16 Item D Add verbage to item D 5 or create new item D 7 (addresses technology and safety upgrades) (Add verbage) https://scientists4wiredtech.com/malibu items 24 and 25 COMPLIANCE WITH APPLICABLE LAW Permit,review, renewal and revocation procedure. The City finds that the technology associated with telecommunications equipment is subject to rapid changes and upgrades as a result of industry competition and customer demands, and anticipates that telecommunications antennas and related equipment with reduced visual impacts will be available from time to time with comparable or improved coverage and capacity capabilities. The City further finds that it is in the interest of the public health, safety, and welfare that telecommunications providers be required to replace older facilities with newer equipment of equal or greater capabilities and reduced visual impacts as technological improvements become available. Therefore, any modifications requested to an existing facility for which a permit issued pursuant to this Chapter authorizing establishment of a wireless facility shall permit the city planner or engineering manager to review the provider’s existing facility to determine whether requiring newer equipment or applying new screening techniques that reduce visual impacts is appropriate if technically feasible. At any time,the city planner or engineering manager may initiate proceedings to revoke a permit issued pursuant to this Chapter. Grounds for revocation shall be limited to a finding that the owner or operator has abandoned the facility, the facility is no longer in compliance with either the general requirements or design standards of this Title, the conditions of approval and the owner or operator has failed to bring the facility into compliance within ninety (90) days after a notice has been sent by the director requiring the facility to be brought into compliance, the facility is no longer in compliance with applicable FCC or FAA regulations, the facility has not been upgraded to reduce or minimize its impact to the extent reasonably permitted by the technology available at the time of any requested modifications, or if the city planner or engineering manager determines that revocation would be in the best interest of the public health, safety, or welfare, including circumstances like fire hazards, transitional areas or view corridors. ANNUAL RECERTIFICATION It is important that telecoms know their smart cell wireless equipment and installations will be tested on a regular basis so that they will be encouraged to test their own equipment before installing them, and they are incentivized to install safe, up to date, reliable equipment in such a way that ensures satisfactory quality and performance. Currently there is no regulatory agency or board testing or monitoring such installations and there is no certification process; thus I suggest the following language be added to Policy 64 as a precautionary measure of protection to the city and its citizens to discourage failures and hazards. MODEL WIRELESS TELECOMMUNICATIONS ORDINANCE for Siting of "Small Cell" Telecommunication Infrastructure Dec. 14, 2021 Item #16 Page 216 of 252 https://wisconsinsafetech.files.wordpress.com/2020/05/5g-model-telecom-ordinance-by-americans- for-responsible-tech-1.pdf ( Page 7 Policy 64 Page20 Add a new section Page 20 (before “SEVERABILITY”) “F. Annual Recertification “ * The city shall have the right to employ a qualified, independent radio frequency engineer to conduct an annual random and unannounced test of the Permittee’s small cell wireless installations located within the city to certify their compliance with an 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. * 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 city 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 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. * Any small cell wireless installation which is not removed within 30 days after being listed as no longer in use in the annual recertification affidavit shall be subject to a fine of $100/day until such installation is removed. * Where such annual recertification has not been properly or timely submitted, or equipment no longer in use has not been removed within the required30 day period, no further applications for small cell wireless installations will be accepted by the city until such time as the annual recertification has been submitted and all fees and fines paid. References https://scientists4wiredtech.com/malibu/ Items 16, 17, 18 and 19) (Malibu ord477 U page 10 of 16) http://www.keepcellantennasawayfromourelkgrovehomes.org/cell-antenna-policies/malibu Malibu-ord-unsigned-477U Download (http://www.keepcellantennasawayfromourelkgrovehomes.org/wp- content/uploads/2020/12/Malibu-ord-unsigned-477U.pdf) https://www.malibucity.org/DocumentCenter/View/27969/Ordinance-No-484 (Elk Grove) City of EG Ordinance 19-2019 http://www.keepcellantennasawayfromourelkgrovehomes.org/wp-content/uploads/2019/09/City-of- EG-Ordinance-19-2019.pdf Page 13 https://scientists4wiredtech.com/malibu Dec. 14, 2021 Item #16 Page 217 of 252 https://wisconsinsafetech.files.wordpress.com/2020/05/5g-model-telecom-ordinance-by-americans- for-responsible-tech-1.pdf Page 7 https://ed84ae68-328e-42f4-847a- 66fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf PP 12 & 22 https://stop5ginternational.org/checklist-for-municipal-codes-addressing-small-cell-installations/ Dec. 14, 2021 Item #16 Page 218 of 252 2 November 2021 Mr Eric Lardy Associate Planner City of Carlsbad 1635 Faraday Avenue Carlsbad CA 92008 Dear Eric, Thank you for taking the time to Zoom meet with all of us today to discuss 'The Front Yard Rule' and other issues related to Carlsbad's wireless technology infrastructure policies. We deeply appreciated your sincere and respectful attention. The news that Carlsbad's current wireless technology infrastructure policies are under review - and may possibly be revised -is very happy news for me personally. From 2003-2014 I lived with my Robotics Engineer boyfriend in a fully automated 'smart' home; 10K sq ft of devices, gadgets, lighting and appliances all operating off WiFi/wireless and 'smart' technologies. When I moved into that home I considered myself to be a very happy, healthy, intelligent and contributing member of this city. I practiced yoga and hiked every day. I volunteered for beach clean-ups, dog rescue and addiction counseling. I owned property and owned/operated a local business that I believe served the wellbeing of the Carlsbad community. By the time I moved out of that home I was officially medically disabled with symptoms that included: chronic insomnia, migraines, heart palpitations, inexplicable digestive disorders and random seizures. The hippocampus area of my brain became inflamed to the point of traumatic injury which caused mood instability, memory issues, overwhelming sensitivity to light and sound and the loss of my speech and handwriting. During those 11 years I was told over and over it was 'impossible' to be reactive to WiFi/wireless or 'smart' technologies ... I started to assume that I was going to lose the normal functioning of my brain and body with no explanation as to why. Eventually I connected with environmental toxicity experts, neuroscientists, MDs, building biologists and military personnel who were studying wireless and 'smart' technologies. These people validated my symptoms as being related to EHSS -Electric Hypersensitivity Syndrome. I became involved with a group and discovered there were many thousands of people all over the world who were "WiFi Sick" too -many even worse. Dec. 14, 2021 Item #16 Page 219 of 252 Per Arthur Firstenberg's book: 'The Invisible Rainbow -A History of Electricity and Life', people like me are the 'canaries in the coal mine' of the technology 'revolution'. In my current home there is no WiFi router. I use a hard-cabled-connected-through-the-phone-line computer with external wired mouse and keyboard. I do not have a 'smart' phone, a 'smart' TV, 'smart' appliances, a 'smart' doorbell or a 'smart' thermostat although I often feel the frequencies from my neighbors who do, from the 'smart' meters on the property and from T-Mobile's 4G-L TE small cell array at the end of the street. I drive an older car with no wireless or 'smart' technologies. Living with intentionally reduced exposure to WiFi/wireless and 'smart' technologies means that most days now I do feel overall much better. There are still many places I cannot go but I do spend hours a week walking barefoot on the beach - a practice called 'Earthing' that is an antidote to the many unavoidable exposures to WiFi/wireless and 'smart' technologies. I have a lot of my speech back but still not [legible] handwriting ergo the typed note. Obviously I was exposed to WiFi/wireless and 'smart' technologies in an extreme and extraordinary way. However, it is clear the telecom industry -along with cohorts developing companion technologies -hope to install wireless and 'smart' technologies infrastructure every few hundred ft in every city in every state, in every country; it's not just about small cell WCFs or 4G-L TE/5G anymore. If telecom and their Al/loT cohorts are permitted to place WiFi/wireless and 'smart' technologies infrastructure any place they please, all biological life and the environment we share will be exposed in an extreme and extraordinary way. The cameras, boxes, poles and cables will be horribly ugly to look at while emitting microwave radiation that is undeniably a fire hazard and has proven harmful to the health of humans, animals, plants, birds, insects and even the sea creatures that so many of us in Carlsbad love. I will not presume to offer research, evidence, data, science or references you may already have but please count on me if there is any way I can support the review and ultimate revision process of Carlsbad's wireless infrastructure policies so they serve and protect Carlsbad residents and our environment, NOT the telecom companies and their cohorts. Implementing a policy like Elk Grove's 'The Front Yard Rule' would be a great place to start! Again, thank you. Sincerely, Karen Rich, Carlsbad Resident since 1991 Dec. 14, 2021 Item #16 Page 220 of 252 Karen Rich Comment Letter 2 From: Karen Rich <KLR1959@protonmail.com> Sent: Monday, November 22, 2021 10:06 AM To: Corey Funk <Corey.Funk@carlsbadca.gov>; City Planning Eric Lardy <EricLardy@carlsbadca.gov> Subject: Fw: Help Us Fix the 5G Mistake! Hi Eric and Corey, If you don't have this already, FYI. I am curious to know what you are thinking about upgrading Carlsbad's Policy 64 to something like Elk Grove's 'The Front Yard Rule'? Is there a next step for our group to take that would help to move the consideration forward? Thank You, Karen Rich 760-224-8516 ‐‐‐‐‐‐‐ Original Message ‐‐‐‐‐‐‐ On Monday, November 22nd, 2021 at 9:23 AM, Americans for Responsible Technology <info@americansforresponsibletech.org> wrote: Congress gave a billion dollar gift to the 5G industry Dec. 14, 2021 Item #16 Page 221 of 252 Help us fix Congress's 5G mistake! A little-noticed phrase in the new infrastructure bill hands the wireless industry a giant holiday gift! ---,_. Americans for 1;=~-:::;= Responsible ~:; _ ... _•.•.-•--:Technology ~ Dec. 14, 2021 Item #16 Page 222 of 252 Dec. 14, 2021 Item #16 Page 223 of 252 Do you want your tax dollars spent on 5G deployment? If not, read on.... Lobbyists for the wireless industry have quietly inserted language into the new infrastructure bill that requires any new priority broadband project to “support the deployment of 5G...” (See Section 60102 (a) (2) I (ii) (II) on page 756.) Legislators, eager to do something to help fix the digital divide, probably didn't notice the language. But as we all know, 5G will not fix the digital divide. (See below). The technology is slow, expensive, unnecessary, unreliable, subject to hacking, and will need to be updated in the very near future to keep pace with the superior service and speed offered by wired broadband. The intent of the lobbyists who inserted this phrase into the bill is clearly to (1) help their employers “hook” unsuspecting customers on their unregulated service, binding them to a costly wireless future, whether they want it or not, and (2) prevent federal funding for wired broadband projects. It's outrageous, and there is only one way to fix it: Congress needs to act! Call your representatives in Washington today and ask them to "Fix the 5G Mistake." Dec. 14, 2021 Item #16 Page 224 of 252 And why not forward this message to a few friends? Find your federal representatives It’s worth remembering that beginning in the late 1990s, Verizon, AT&T and other telecoms promised state utility commissions across the country that they would connect all their customers with fiber optic cable. Rate increases were approved, and the process began. But before they were even halfway done, the telecoms realized that fulfilling that promise would deny them the ability to attract customers to their new, highly profitable and unregulated wireless businesses instead. So the deployment of wired broadband essentially ceased, creating the digital divide. And while we're talking 5G..... Don't let any municipal official tell you that their "hands are tied" with regard to the deployment of 5G. The fact is that Congress gave local governments plenty of control over deployment, but local governments Dec. 14, 2021 Item #16 Page 225 of 252 have to pro-actively take that power through smart planning provisions in their local codes. Please read, download and share our new Advisory Bulletin on the powers local governments have to control deployment of 5G. Download the new Advisory Bulletin from the ART Tool Kit This message is brought to you by Americans for Responsible Technology (ART), a non- profit coalition of grassroots organizations across the country supporting the deployment of safe, economical and future-proof wired technology and promoting equitable access to technologies that benefit society and protect the health, safety, security, privacy and property of all Americans. We are deeply grateful for your financial support. The ART Team - Doug, Patti, Zoe, Ellen & Shawn Dec. 14, 2021 Item #16 Page 226 of 252 Karen Rich Comment letter From: Karen Rich <KLR1959@protonmail.com> Sent: Wednesday, November 17, 2021 8:55 AM To: Matthew Hall <Matt.Hall@carlsbadca.gov>; City Planning Eric Lardy <EricLardy@carlsbadca.gov>; Corey Funk <Corey.Funk@carlsbadca.gov> Cc: City Clerk <Clerk@carlsbadca.gov> Subject: Citizen Request for Meeting with Mayor Hall RE: Updating Carlsbad Policy 64 for Wireless Communications Facilities November 17, 2021 Dear Mayor Hall, We are informed and concerned Carlsbad citizens who would like the City of Carlsbad to implement a strategic, protective policy upgrade to Policy 64 regarding placement of Wireless Communications Facilities (WCFs) in residential neighborhoods. The recent veto of of SB 556 (Dodd) allows the City of Carlsbad to legally do so. In a November 2nd meeting with City Planners Corey Funk and Eric Lardy, we discussed a 2019 WCF policy implemented by the City of Elk Grove, CA called 'The Front Yard Rule': "b. No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from, a front yard of any residential dwelling." There are many reasons to implement a strategic, protective policy like Elk Grove's here in Carlsbad that include but are not limited to: • Shielding citizens in Carlsbad's residential neighborhoods from the microwave radiation exposure emitted from WCFs. • Diminishing the fire hazard that WCFs pose to Carlsbad residential neighborhoods - many of which are designated 'high risk'. • Maintaining the pleasing aesthetics and the property values of Carlsbad residential neighborhoods. We'd really appreciate a meeting with you, Mayor Hall - to share information and understand your position on this issue. Would Tuesday November 23rd @ 10:am work for your schedule? Thank you and Sincerely, Karen Rich 760-224-8516 Irene Tsutsui 760-602-0839 Dec. 14, 2021 Item #16 Page 227 of 252 Mark Graham comment letter November 22, 2021 Mayor Hall, Council Members and staff, This message is in response to the City's Wireless Communication Facilities Public Input. https://www.carlsbadca.gov/departments/community-development/planning/wireless-comment-form Please see the document I am sending you in this message. I attempted to copy and paste the body of my message into the City's web form but the web form did not have enough space. One more note: Your web page says, "Next steps All input gathered will be presented to the City Council in December when the updated policy and guidelines will be considered for adoption." With all due respect this is way too fast for the City or its residents. Municipal telecommunications policy is complicated. Haste makes waste. There is not enough time for the City to really learn the extent of its possible regulatory authority per the Telecommunications Act of 1996 and applicable case law, consider recommendations by its residents, prepare specific written ordinance or resolution for the Council, receive advice from the City Attorney or other attorney that the City will hire for this purpose, negotiate or at least communicate with the telecommunications companies who will surely have an interest in your amendments to your cell antenna policy, receive input from your residents on your draft proposed zoning code amendment, discuss and debate the proposal including residents' comments, and then discuss and debate the final policy as amended in response to your residents' comments all by December. Also, there is Christmas. I recommend that the City use a thoughtful and complete process to formulate and receive public comment at every step of the way. This is the best way to achieve a cell antenna policy that works well for and serves the interests of the City and your residents. Sincerely, Mark Graham Keep Cell Antennas Away www.KeepCellAntennasAway.org Attachment 1 below Dec. 14, 2021 Item #16 Page 228 of 252 Mark Graham Keep Cell Antennas Away www.KeepCellAntennasAway.org Mark@KeepCellAntennasAway.org November 22, 2021 Regarding City of Carlsbad cell antenna policy and possible changes to it Mayor Hall, Mayor Pro Tem Blackburn, Council Members and staff, My name is Mark Graham and I live in Elk Grove. I’m an expert on municipal telecommunications policy. I have worked on municipal telecommunications policy since February, 2017 and have worked with residents in New York, Tennessee, Maryland, Illinois, and several California cities. I led the grassroots campaign to keep cell antennas away from homes in Elk Grove, which set an example that other cities can follow. Every city has to have a wastewater treatment plant. But as a City official you would not place that plant right in front of homes. My friends in Carlsbad tell me that your current zoning code as it relates to cell antennas needs work. I think it’s something that the Council really needs to learn about. I am glad that the City of Carlsbad has asked for input from the community regarding your policy on Wireless Communication Facilities and possible changes to it. https://www.carlsbadca.gov/departments/community-development/planning/wireless- communication-facilities Wireless Communication Facilities Public Input https://www.carlsbadca.gov/departments/community-development/planning/wireless-comment- form By the way 4G and 5G cell antennas work together; that is, a 5G cell antenna or system cannot work without many 4G cell antennas. Another term for these antennas is close proximity microwave radiation antennas (CPMRA). My purpose in writing to you is to help the City exercise its zoning authority over cell antenna placement and enable Carlsbad residents to live free of the aesthetic and health and environmental impacts that can result from the irresponsible placement of cell antennas. This message will make several recommendations regarding Carlsbad’s new cell antenna policy. Feel free to ask questions about any of this. If I don’t have an answer I will find it for you. Dec. 14, 2021 Item #16 Page 229 of 252 Carlsbad residents do not want cell antennas near homes! Carlsbad residents want you to keep cell antennas away from homes. There was a petition signed by 145 Carlsbad residents to that effect. Although I have not seen the petition a couple of your residents told me about it. The City probably has copies of the petition with those signatures, which copies are incorporate into my public comments by this reference. What the City CAN do: City regulatory authority over the placement of cell antennas notwithstanding the TCA My experience has shown me one key thing, which many cities fail to understand: state and local governments really have broad regulatory or zoning authority over the placement of cell antennas granted to them by the California Constitution and preserved by the Telecommunications Act of 1996 (TCA). (47 U.S.C. 332(c)(7)(A)) More specifically, the City has this regulatory authority available to it, but will only have this authority and be able to exercise it if the City appropriately amends its zoning code regarding cell antenna placement and permitting. Although the TCA is specific about the limitations on your zoning authority, it is not specific about the extent of that authority. In other words TCA tells you what the City cannot do, but not what it can do. One could infer from this that there is nothing the City can do to regulate the placement and permitting of cell antennas, but such an inference would be incorrect. The way preemption works is that all that is not preempted is allowed. The City can do everything other than what is preempted. Many telecom influenced attorneys and elected officials talk about the TCA as if it completely preempts local zoning authority over cell antennas. But that is incorrect as a matter of law. What you really need to know is what the City can do. What the City cannot do: certain regulation of cell antennas is preempted by the TCA The TCA also has five specific limitations or preemptions on local zoning authority. (47 U.S.C.§332(c)(7)(B)). Some of these are substantive and some are procedural. The wireless industry often misrepresents these limitations and the City’s authority because it suits their business (financial and control) needs to do so. For example a telecom law firm will often say things like: “The City cannot regulate cell antennas to protect your health or prevent environmental effects.” “The FCC sets electromagnetic field (EMF) limits; we can’t override them.” “We cannot talk about health.” “Our hands are tied.” “Talk to your Senators about changing the TCA.” “We would love to help you but we can’t.” Dec. 14, 2021 Item #16 Page 230 of 252 The preceding statements are all knowingly misleading and / or incorrect and intended to deter the City from exercising its regulatory authority over the placement and permitting of cell antennas. This is deliberate strategy by telecom and its agents. These statements are all based on an incorrect understanding of the TCA. Telecom spreads this opinion through fear by threatening a lawsuit. Once a City Attorney falls for this false view of the law he or she usually leads the entire City Council down the same path. This can be hard to correct. And everybody loses: the City, residents, aesthetics, the environment and public health. Once permitted and installed it can be nearly impossible to remove an irresponsibly placed cell antenna. How to avoid being suckered (misled) by telecom The way to prevent that is for the City Council, City Manager and City Attorney to all study what the TCA and case law in the U.S. Court of Appeals for the Ninth Circuit actually say, and to see what other California cities are doing. To listen to your residents and propose specific regulations on cell antenna placement and permitting and get advice from an experienced telecommunications attorney. Attorneys I recommend Andrew Campanelli https://campanellipc.com/ (516) 746-1600 ajc@campanellipc.com The most experienced and knowledgeable telecommunications attorney I know of is Andrew J. Campanelli, Esq. I recommend that the City hire Mr. Campanelli to advise it on amendments to your cell antenna policy. You cannot find a better attorney for this purpose. Mr. Campanelli has been practicing exclusively telecommunications law for 28 years and has handled thousands of cases. He can advise you from both the point of view of the City and its residents. It will be very valuable for the City to hear from Mr. Campanelli as he will likely be the only attorney to advise the Council from the point of view of your residents. Gail Karish https://bbklaw.com/our-team/gail-a-karish gail.karish@bbklaw.com Tel: (213) 605-1603 Another attorney very knowledgeable about municipal telecommunications policy is Gail Karish, of the law firm Best, Best and Krieger LLC. Several California cities have hired Ms. Karish to Dec. 14, 2021 Item #16 Page 231 of 252 advise them on cell antenna policy. A word of warning about Ms. Karish: unless you specifically ask for it Ms. Karish will likely present to you what the City cannot do about cell antenna regulation, but will not tell you what the City can do. She did this in Culver City on November 8, 2021. However when asked by the Mayor whether the City could adopt the Front Yard Rule as in Elk Grove or something similar to it she said yes. Ms. Karish’s response was, “I’m not familiar with the details of that particular rule although I do understand what it um encompasses, or the, the policy behind it. . . . . Um so, I just want to go back and mention. I did mention in the, the uh, presentation that you can regulate aesthetics. And so to the extent that a rule like a Front Yard Rule, however formulated, ah is directed towards avoiding unsightly installations directly in front of houses um I’m sure um looking at the definition and working on the terminology we could probably come up with a rule that would uh address that concern uh whether its exactly how it was uh phrased in, in Elk Grove or in some other way. Uh you you can regulate aesthetics and so if there are uh you know certain placements within the right of way that would be aesthetically not pleasing you can certainly uh have a standard that would direct applicants not to place their facilities in front of picture windows, for example, um or in front of a home. And that may well, uh as long as there are other alternatives available in the area that would probably uh pass muster under the FCC regulations and Federal law.” (1:20:47 of the City Council meeting video) Ms. Karish also participated in a City Council meeting in Malibu on December 9, 2020 during which the City Council adopted a version of Elk Grove’s Front Yard Rule. Ms. Karish advised the City Council on the specific wording of that policy, which was, “ D. Placements shall not be in front of dwelling units or schools.” (City of Malibu Resolution 20-65, section 5.D.) Between the two of them I prefer Mr. Campanelli. He is more deliberate about telling you what the City can do. And about telling you what’s good for the City and its residents. However the City can also get excellent legal advice on a specific proposed cell antenna policy or any aspect of it from Ms. Karish. Jonathan P. Hobbs Mr. Hobbs is the Elk Grove City Attorney. Although you cannot hire him you can certainly call him to discuss the legal basis for the Front Yard Rule in Elk Grove, which is aesthetics. State telecommunication policy in California does not preempt local zoning authority Almost every city has had for many years a cell tower section of its zoning code. In the last 4 years since Governor Edmund Brown vetoed SB 649 (Hueso), a bill that sought to strip local government of its regulatory authority over the placement of cell antennas, many California cities have updated their zoning codes to provide for cell antennas, often known as 4G and 5G. Dec. 14, 2021 Item #16 Page 232 of 252 More recently Governor Newsom vetoed a similar bill, SB 556 (Dodd) which would have overridden all conflicting local zoning codes and authorized the placement of cell antennas on street light poles. Thanks to this veto the City of Carlsbad and other cities still retain local zoning authority over the placement of cell antennas. Other cities have taken strong action to protect themselves and their residents Cities in Northern and Southern California that have studied this issue have taken strong, proactive measures to regulate the placement of cell antennas, allowing them where needed and keeping them away from homes as much as possible. These cities include Elk Grove, where we have the Front Yard Rule for cell antenna placement, Petaluma, Malibu, Encinitas, Mill Valley, and several others. Currently Culver City is also considering adopting the Front Yard Rule. Specific recommendations for the City of Carlsbad In addition to what I have already mentioned here I recommend that the City: 1. Find those petitions signed by 145 Carlsbad residents saying they do not want cell antennas near homes. If necessary reach out to some of your residents who may have kept a copy. 2. Adopt the "front yard rule" on the location of cell antennas as adopted by the City of Elk Grove into the City's municipal code. This is a Development Standard that regulates aesthetics. It says, "b. No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from, a front yard of any residential dwelling." This will effectively protect the vast majority of Carlsbad homes from having a nearby cell antenna. https://www.codepublishing.com/CA/ElkGrove/#!/ElkGrove23/ElkGrove2394.html#23.94.050 (EGMC 23.94.050 A.6.b.) 3. Require applications to demonstrate that a given proposed cell antenna will close a significant gap in coverage and do so using the least intrusive means. The U.S. Court of Appeals for the 9th Circuit interpretation of the TCA is still the prevailing case law today. MetroPCS, Inc. v. City & County of San Francisco (9th Cir. 2005) 400 F.3d 715. 4. Hire attorney Andrew Campanelli to advise the City on its changes to policy 64. Mr. Campanelli has practiced exclusively telecommunications law for 28 years and has handled thousands of cases. Many cities have hired him to advise them on their cell antenna policies. 5. Require the applicant to file with the City, as a condition of permit issuance, a copy of the applicant's routine environmental evaluation for the proposed cell antenna, which the National Environmental Policy Act (NEPA) and the procedures of the Federal Communications Commission (FCC) implementing NEPA require the applicant to prepare. Dec. 14, 2021 Item #16 Page 233 of 252 https://www.ecfr.gov/current/title-47/part-1/subpart-i 6. Require the applicant to pay the City a certain amount of money with each permit application, determined by the City, which the City will use to hire an independent expert to review and evaluate the completeness and accuracy of each cell antenna permit application including, without limitation, the alternative site analyses and radio frequency emissions report. 7. Become familiar with the effective range of cell antenna signals. This is directly relevant to the question of placement and how many cell antennas are really necessary in a given area. According to former Verizon CEO Lowell McAdam the range of a Verizon 5G cell antenna is greater than 2,000’. This is in the real world, not the result of a calculation or an ideal but unusual situation such as between two antennas on rooftops. Therefore telecom’s claim that a cell antenna is needed every 300’ or 500’ is simply not true. The following page presents an excerpt from an interview with McAdam from 2018. http://www.keepcellantennasawayfromourelkgrovehomes.org/science/range-of-a-5g-cell- antenna/ The title of the video is “Verizon CEO On The Future Of 5G CNBC.” Starting at 5:29 in the video the interviewer asks Mr. McAdam, “Can you get through trees?  Can you get through leaves?  Can you actually get somewhere were you don’t need cell sites ev, you know 25 feet from my house?” Verizon CEO Lowell McAdam responds: “Yeah well those were some of what I call the myths of millimeter wave, because no one thought that was good, and by the way we’re the only ones that have it now so it’s to their advantage to say it’s no good.” “When we went out in these 11 markets, we tested for well over a year so we could see every part of foliage, every storm that went through. We have now busted the myth that it has to be line-of-sight.  It does not. We busted the myth that foliage will shut it down. I mean that was back in the days when a pine needle would stop it.  That does not happen. And the 200 feet from a home? We’re now designing the network for over 2,000 feet from transmitter to receiver, which has a huge impact on our capital need going forward. So those myths have disappeared.” 6:25 https://youtu.be/lYAufhIgkpI?t=313 The video link on my web page is broken but that link is current and working. Dec. 14, 2021 Item #16 Page 234 of 252 That is all for now. Please acknowledge your receipt of this message. Sincerely, Mark Graham Keep Cell Antennas Away www.KeepCellAntennasAway.org Mark@KeepCellAntennasAway.org Dec. 14, 2021 Item #16 Page 235 of 252 November 24, 2021 Via Email Only (corey.funk@carlsbadca.gov) Mr. Corey Funk Associate Planner Planning Department City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Re: Verizon Wireless’s Comments to the City of Carlsbad’s Draft Revisions to the Review and Operation Guidelines for Wireless Communication Facilities (City Council Policy No. 64). Dear Mr. Funk: Our office represents Verizon Wireless. This letter provides Verizon’s comments on the City of Carlsbad’s Draft Revisions to the Review and Operation Guidelines for Wireless Communication Facilities (City Council Policy No. 64). Verizon’s detailed comments to the proposed draft City Policy changes are attached as Exhibit A to this letter. Verizon respectfully requests that the City consider the attached comments, and that it revise or modify the proposed draft Policy to address the comments. Such revisions are needed to avoid improper application of the draft Policy provisions that would be inconsistent with federal and State law. Verizon also requests that the City Staff further engage the wireless industry about proposed changes to the Policy and looks forward to continuing conversations on this matter in either a Stakeholders Meeting or in separate discussions with each carrier before the revised Policy is presented to the City Council for consideration. Verizon seeks to provide new, as well as enhanced and improved, wireless services within the City and its communities to enable improved communications for everyday life, business, and other purposes, and for the critical use of first responders, especially during emergency situations (fires, policing activities and ambulance services). The new wireless services address the exploding consumer and business demand for high-speed mobile and fixed wireless broadband, and to enable the deployment of new wireless technologies and innovative smart city and other society-enhancing solutions. Indeed, Verizon is an active participant in the San Diego Association of Governments and Southern California Association of Governments Digital Divide Task Forces and invites the City to join us in bridging the digital divide in our region. We believe when public and private sectors come together, especially in advancing the nation's digital infrastructure, the communities that we serve, such as the City, are better able to benefit, grow and prosper. Dec. 14, 2021 Item #16 Page 236 of 252 Verizon appreciates that the Policy was revised at page 2 to specifically exclude or exempt eligible facilities requests under Section 6409 of the Spectrum Act from the effect and implementation of the Guidelines. Further, Verizon recognizes the potentially helpful provisions of the Policy (Review and Approval Guidelines, E.13) that allow for pre-approved designs for new replacement poles possibly to be used for multiple applications within the City. Verizon also encourages the City to consider allowing for future changes to the Policy to be adopted and regularly updated by the Director of Community Development, not the Council, to allow the City the most flexibility in updating the Policy to accommodate frequent advances in wireless technology and equipment designs. While Verizon details many inconsistencies and concerns about the Policy in the attached document, for emphasis we highlight the following proposed draft Policy provisions that pose particular concerns for the company: • Small wireless facility location restrictions and justification requirements: Policy regulations include requirements that prohibit certain areas for locating a wireless facility, that push facilities into “preferred” locations and away from ”discouraged” areas, that impose unreasonable setback requirements, and that require alternative site analyses and business justifications for facilities. These regulations are contrary to federal law and will also make large swaths of City lands off limits to needed wireless facilities, which will create many significant gaps in Verizon’s network coverage and capacity. These types of regulations should be eliminated as to small wireless facilities. • Small wireless facility design restrictions: Policy regulations also improperly restrict the height of small wireless facilities, attempt to control the wireless technologies used for facilities, require infeasible and costly undergrounding of all utilities serving a facility and all accessory equipment, and impose infeasible and costly design elements that cannot be reasonably implemented in the field. Such restrictions and limitations are not consistent with federal regulations and FCC rulings that expressly apply to the allowed height, size and design of small wireless facilities. The restrictions will improperly inhibit the needed deployment of wireless facilities within the City, which is not consistent with federal law and policy. These types of regulations should be eliminated as to small wireless facilities. Verizon looks forward to working with the City Staff on a further revised draft Policy, which addresses the comments in this letter before being submitted to the City Council, that strikes the right balance between the City’s intent and the goals of the state and federal laws and regulations regarding the deployment of needed wireless network facilities. G/D/B Dec. 14, 2021 Item #16 Page 237 of 252 This letter should be included as part of the administrative record for the proposed revised Policy. Please let me know if you have any questions about this matter. Thank you. Sincerely, Kevin P. Sullivan, Esq. Partner Gatzke Dillon & Ballance LLP Copies (all via email): Jesús G. Román, Vice-President Government Affairs, Verizon Dominique Cano-Stocco, Executive Director, Local Engagement, Verizon Shahriar Afshar, Municipal Engagement Partner, Verizon Daisy Uy Kimpang, Municipal Engagement Partner, Verizon Ethan Rogers, Network Attorney, Verizon G/D/B Dec. 14, 2021 Item #16 Page 238 of 252 EXHIBIT A Verizon Wireless’s Comments to the City of Carlsbad’s Draft Revisions to Review and Operation Guidelines for Wireless Communication Facilities (City Council Policy No. 64). 1. Review Restrictions (The City may not prevent completion of a network, p. 3). The City should add language here in the discussion of the “materially inhibits” standard to explain that the FCC Small Cell Order determined an effective prohibition of service occurs “where a state or local legal requirement materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service. This test is met not only when filling a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service capabilities.” “Thus, an effective prohibition includes materially inhibiting additional services or improving existing services.” (FCC Small Cell Order ¶ 37 and footnotes 85-87.) Further explanation on these items should be added to the Policy. 2. Permit Process (Table A Processing Requirements, p. 6). The attempted location preferences incorporated into Table A to locate WCFs mostly only in non-residential and non-open space zones could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). Limiting or prohibiting WCFs from being located in or adjacent to residential and open space zones and areas of the City ignores the fact that network coverage/capacity needs and network coverage gaps exist in residential and open space areas. The limitations therefore are not consistent with federal law as explained more in Comment Nos. 3 and 4 below. These types of location restrictions in this Table should therefore be removed or revised. 3. Review and Approval Guidelines (Location Guidelines Sections A.1 and A.2, p. 7). Further, the significant WCF (not SWF) siting restrictions stated in the Preferred and Discouraged Locations are too broad, and very likely will lead to an improper prohibition of wireless services. Application of the location restrictions in these Sections will make large swaths or areas of the City off limits to wireless sites, which could create many significant gaps in Verizon’s network coverage and capacity. Application of the location restrictions could violate 47 U.S.C. Section 253(a), which states that “[n]o State or local statute or regulation, or other State or local legal requirement, may G/D/B Dec. 14, 2021 Item #16 Page 239 of 252 prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” The limitations may therefore result in a prohibition, or an effective prohibition, of wireless services in violation of the Section 253 of the TCA. Further, application of the City’s location restrictions applied to a particular proposed WCF also cannot prohibit or have the effect of prohibiting the provision of wireless services under 47 U.S.C. §332(c)(7)(B)(i)(II) and T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987 (9th Cir. 2009) where Verizon has a significant gap in coverage and has proposed the least intrusive means to fill that gap. These types of location restrictions in this Section should therefore be removed or revised to allow for an exception process for the placement of WCFs. 4. Review and Approval Guidelines (Location Guidelines Section A.2, p. 7). This Section improperly requires an applicant to show “no feasible alternative” to siting a WCF (not a SWF) in a Discouraged Location. The legal test that is consistent with federal law is the “least intrusive means” test established by the Ninth Circuit in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 997-98 (9th Cir. 2009). The City may not enforce a standard that is not consistent with federal law. The regulations in this Section should be revised to refer only to the “least intrusive means” standard. 5. Review and Approval Guidelines (Location Guidelines Section A.3, p. 7). This Section improperly requires an applicant to show that any location for a WCF (not a SWF) is the “least visible to the public”, “least disruptive to the appearance of the host property”, not “readily visible”, or “hidden or disguised.” But, as stated above, The legal test that is consistent with federal law is the “least intrusive means” test established by the Ninth Circuit in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 997-98 (9th Cir. 2009). The regulations in this Section should therefore be revised to refer only to the “least intrusive means” standard. 6. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.1, p. 8). Section B.1 defines “stealth” in a manner that is likely not consistent with applicable law because the City could easily apply the definition in a way that would effectively prohibit SWF deployment if, for example, the City determined that antennas or equipment, which G/D/B Dec. 14, 2021 Item #16 Page 240 of 252 complies with the federal size standards for SWFs, does not “visually blend into the background or the surface on which they are mounted.” Further, the design principles and requirements of this Section should not be applied in a manner that results in prohibitive cost impacts or results in a prohibition of wireless network services. The City’s Policy cannot materially inhibit deployment of telecommunications networks or create an appreciable impact on resources that materially limit plans to deploy wireless service. The FCC determined that increased per SWF costs could impair and impede the needed deployment of SWFs, which is inconsistent with national policy. (See FCC Small Cell Order ¶ 24.) Costly conditions imposed for site approval, such meeting subjective and undefined design standards, drain Verizon’s capital resources that otherwise could be used for network deployment, and would be improper to the extent fees or costs prohibit, or have the effect of prohibiting, the provision of wireless services. (See FCC Small Cell Order ¶¶ 54-61.) Moreover, incurring additional costs for an alternative design solution is one factor that can be used by a carrier to reject the alternative design even in the context of macro wireless facility or WCF applications. (See T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 998 (9th Cir. 2009).) The regulations should be revised to state that SWF designs meet the “stealth” requirement if they comply with the height, size and dimension standards identified in 47 CFR § 1.6002(l). 7. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.4, p. 8). The height limitations imposed in this Section on SWFs (compliance with height limitations in the zone and limiting heights to that of existing or replacement structures for new attachments) are inconsistent with federal and state law and should be revised. SWFs can be mounted on new structures or can extend the height of the existing pole or structure to higher than other adjacent structures, including reaching a height of up to 50 feet. (47 CFR § 1.6002(l)(1)(i)-(iii).) The height allowances under federal law could exceed either the height limits in a City zone or the height of the structures being replaced. Also, CA Public Utilities Commission (CPUC) General Order 95 contains mandatory safety-related separation standards for equipment and lines attached to poles, which standards would affect the height of a replacement pole and associated SWFs. Also, the WCF height limitations stated in this Section could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II) if a proposed WCF is required to be placed at a height in excess of a height limitation for a zone as necessary for Verizon to fill a significant gap in service. G/D/B Dec. 14, 2021 Item #16 Page 241 of 252 The regulations should be revised to state that (1) SWF heights are allowed if they comply with the height standards identified in 47 CFR § 1.6002(l) and in CPUC General Order 95 (as applicable), and where technically or structurally necessary, and (2) WCF heights are allowed as needed to avoid a significant gap in network coverage and capacity, and to comply with CPUC General Order 95 (as applicable). 8. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.5.a-b, p. 8). The setbacks for SWFs in these sections are not consistent with federal law, including the definition of SWFs found in 47 CFR section 1.6002(l)(1)-(6), and the discussion of SWFs in the FCC’s 2018 Small Cell Order. No such setback requirements for SWFs are stated in federal law. Furthermore, there is typically not enough space in the public right-of-way to implement such setback requirements for SWFs. Verizon would also like to raise the question as to whether the same setback requirements are being required of other utilities in the public right-of-way as Verizon is a public utility under the California law. Such requirements, if applied to SWFs, should also be applied to installations by other utilities in the public right-of-way in these areas. Under federal law, local regulations must be applied equally to all public utilities using the right-of-way. Federal law recognizes the authority of local governments to “manage the public rights of way” though on a “competitively neutral and nondiscriminatory basis.” See 47 U.S.C. § 253(c). The setback restrictions should therefore be removed for SWFs. Further, for SWFs, a carrier only needs to show that application of this City setback regulation materially impaired or impeded Verizon’s deployment of wireless services, as discussed in Comment No. 1 above, and the setback requirement would be preempted. These sections could also result in an effective prohibition of Verizon’s services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II) based on the limitations on siting or locating a WCF due to significantly enhanced setback requirements that don’t apply to any other structures, and which would result in a significant gap in Verizon’s wireless network services. Also, the increased setback regulations for WCFs and SWFs stated in these sections also appear to be a pretext for impermissibly seeking to regulate radio frequency (RF) emissions and therefore violate 47 U.S.C. §332(c)(7)(B)(iv). There is no reason for any form of increased setback regulations for a WCF or SWF beyond those that are generally applicable to any other structure. A WCF and SWF outside the ROW must typically already comply with reasonable design regulations, and meet all FCC, and building code standards (including as to noise and structural integrity) to be approved. Therefore, the proposed significantly increased minimum setback requirements just for WCFs and SWFs are G/D/B Dec. 14, 2021 Item #16 Page 242 of 252 arbitrary and unreasonable, and appear to be a pretext based on the unfounded fears of RF emissions, which is not a valid basis for local regulation. The setback regulations should therefore be removed or revised. 9. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.6, pp. 8-9). Section B.6 (b) is vague and subjective based on the limitations on siting or locating a WCF or SWF “as far away as possible from the outer edge of a building or structure ….” This Section could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). The regulation should therefore be removed or revised. WCFs and SWFs must be sited close to parapet walls on building roofs to achieve adequate signal propagation to meet coverage objectives. The further away from a parapet wall edge the WCF or SWF is located, the higher the antennas typically must be placed to project signals over the parapets and to street level elevations around the building. Pushing a WCF or SWF “far away” from roof edges could result in an increase the height of the facility, which may exceed height limitations and will otherwise increase the visibility of the WCF or SWF and defeat the purpose of Section B.1. Further, the requirement for equipment for a WCF or SWF on a residential building to be placed inside a residential structure (as opposed to an outdoor walled enclosure) is unreasonable, may not be possible due to space constraints on the private property, and could be cost-prohibitive. The regulations should be revised to allow exceptions where full compliance would be technically infeasible, infeasible due to space or property owner restrictions or cost- prohibitive. 10. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.7.c, p. 9) Requiring trees “tall enough to screen three-quarters of the height of the monopole at the time of planting” as screening for a ground-mounted WCF will likely result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). High trees adjacent to WCF antennas often cause near-field interference with RF signals and typically significantly limit the coverage range of a WCF due to signal blockage of the tall trees. Further, adding trees and landscaping may not be possible due to space constraints or property owner restrictions on the private property, Such screening and landscaping requirements therefore would prevent Verizon from closing a significant gap in coverage. G/D/B Dec. 14, 2021 Item #16 Page 243 of 252 Verizon raises similar concerns to placing monopoles next to tall buildings for the same reasons (interference, blockage of signal propagation, etc.) The regulations should be revised to allow exceptions where full compliance would be technically infeasible or infeasible due to space or property owner restrictions. 11. Review and Approval Guidelines (Design Guidelines for WCFs and SWFs, Section B.10, p. 9) This Section should be removed or revised for WCFs and SWFs as it will result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II). For SWFs, the FCC determined that undergrounding requirements, similar to aesthetic requirements, must be reasonable, or “technically feasible” and meant to avoid “out-of-character deployments. (See FCC Small Cell Order, ¶¶ 86, 90.) For WCFs, utility lines are typically already placed underground in a trench, unless it is determined by the utility provider to not be feasible. The regulations should be revised to allow above-ground connection of utility lines to SWFs and WCFs. 12. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C1, p. 10). The FCC Small Cell Order was adopted to provide guidance on appropriate approval criteria for small cells. The order defines “small wireless facilities” with specific height and dimension thresholds. 47 C.F.R. § 1.6002(l). The FCC addressed appropriate aesthetic criteria for approval of qualifying small cells, which criteria were upheld in City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), cert. denied, concluding that they must be: “(1) reasonable, and (2) published in advance.” (FCC Small Cell Order, ¶ 86.) “Reasonable” standards are “technically feasible” and meant to avoid “out-of-character deployments.” (Id., ¶ 87.) California Public Utilities Code Section 7901 grants telephone corporations such as Verizon Wireless a statewide right to place their equipment along any public right-of-way, including new poles. The proposed preference list in this section has a first preference of existing or replacement streetlight poles. If the City favors these types of poles over other options, it would contradict California Government Code Section 65964(c) which bars cities from limiting wireless facilities to sites owned by particular parties. Also, having a preferred structure type list, such as shown in Section C.1, exceeds federal law requirements above as federal law doesn’t state such a preference of structure types and such a preference list would then G/D/B Dec. 14, 2021 Item #16 Page 244 of 252 be an added requirement that goes beyond what the FCC has deemed reasonable under its Small Cell Order. Finally, no requirement to show the “least intrusive” design, or that a “more preferred” support pole, applies to SWFs. In 2018, the FCC rejected requirements that “applicants … show that the proposed facilities are the ‘least intrusive means’ for filling a coverage gap.” (FCC Small Cell Order ¶40 and note 94.) Accordingly, an application for a SWF is not required to comply with this Section. Nor can this Section require the “smallest” wireless antenna or equipment, and the requirement must be removed as unworkable and inconsistent with federal law. Under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided and whether they are current technology, or otherwise attempt to control the technological and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v. Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the technological and operational aspects of wireless services, violate the TCA).) Also, the requirement in this Section to utilize “smallest” antennas and equipment should be removed as it is vague and ambiguous, and without objective or reasonable standards. Further, wireless carriers have different network operations and objectives, and the “smallest” antennas and equipment may be feasible to be used by one carrier but not feasible to be used by another carrier. Finally, regarding a SWF, the City cannot require Verizon to show (1) a “clearly defined technical service objective”, or (2) why the “least intrusive” design or most preferred pole location is not available. In 2018 the FCC eliminated requirements that applicants show a “coverage gap”-based analytical approach for small wireless facility applications and instead established a new national standard for what constitutes effective prohibition of service under the Act. (See FCC Small Cell Order, ¶¶ 9-10, 21, 37 and 40 and notes 87-88 and 94.) The regulations in this section should be revised to (1) exempt SWFs from having to provide alternative site analyses, to show the facility is the “least intrusive” design or site, to provide coverage maps, or to use the “smallest” antennas or equipment provided the size and dimension requirements of 47 CFR § 1.6002(l) are met, and (2) exempt WCFs from having to use the “smallest” antennas or equipment. 13. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.a, p. 11). The height limitations imposed in this Section on SWFs are inconsistent with express federal law and should be revised. G/D/B Dec. 14, 2021 Item #16 Page 245 of 252 SWFs can be mounted on new structures, or can extend the height of the existing pole or structure, to higher than other adjacent structures, including reaching a height of up to 50 feet. 47 CFR § 1.6002(l)(1)(i)-(iii). The height allowances under federal law could exceed either the height limits in a City zone or the height of the structures being replaced. Also, CA Public Utilities Commission (CPUC) General Order 95 contains mandatory safety-related separation standards for equipment and lines attached to poles, which standards would affect the height of a replacement pole and associated SWFs. Technically infeasible standards for small cells are unreasonable and prohibitive according to the FCC. (FCC Small Cell Order, ¶¶ 86-87.) Also, the WCF height limitations stated in this Section could result in an effective prohibition of Verizon’s wireless services in violation of 47 U.S.C. §332(c)(7)(B)(i)(II) if a proposed cell facility is required to be placed at a height in excess of a height limitation for a zone as necessary for Verizon to fill a significant gap in service. The regulations should therefore be revised to state that (1) SWF heights are allowed if they comply with the height standards identified in 47 CFR § 1.6002(l) and in CPUC General Order 95 (as applicable), and (2) WCF heights are allowed as needed to avoid a significant gap in network coverage and capacity, and to comply with CPUC General Order 95 (as applicable). 14. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.b, p. 11). The stealthing/concealment requirements may be technically infeasible to the extent covering the face of certain antennas with a radome or shroud impedes signal propagation. This regulation should be revised or qualified to state “unless technically infeasible.” 15. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.c, p. 11). The size and width standards here are inconsistent with the express federal regulations on SWFs found at 47 CFR § 1.6002(l). The regulations should therefore be revised at c.1 to eliminate the last sentence as only antennas, and not associated equipment items or shrouds, are included in the 3 cubic feet volume standard at 47 CFR § 1.6002(l)(2). Further, sections c.2 and c.3 should be eliminated and replaced with language to state only that the width and design of top-mount antennas should comply with the size and dimension standards found in 47 CFR § 1.6002(l). Dec. 14, 2021 Item #16 Page 246 of 252 16. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.d -e.1, pp. 11-12). The FCC Small Cell Order regarding SWFs requires that an agency utilize “reasonable” design standards that are “technically feasible” and meant to avoid “out-of-character deployments.” (¶ 87; these FCC requirements were upheld in City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), cert. denied.) Small cell antennas (including microwave antennas) and equipment could be attached to poles or structures in the ROW and be consistent with the character of the surroundings. Further, SWF antennas and equipment can be attached to a pole consistent the design, size and volume standards that are stated in the federal regulations found at 47 CFR § 1.6002(l) and as stated in CPUC General Order 95. The regulations in these sections should be revised to state that SWF antennas and equipment can be attached to the pole or support structure unless out-of-character with the surroundings, and as consistent with the design, size and volume standards found at 47 CFR § 1.6002(l) and as stated in CPUC General Order 95. 17. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.e.2, p. 12). Federal regulations expressly and specifically govern the size or volume standards for non- antenna equipment for SWFs, and the City metrics listed in this section do not comply with those federal rules. The regulations in this section should be revised to state that all pole-mounted SWF non-antennas equipment, including cabinets, can be installed consistent with size and volume standards found at 47 CFR § 1.6002(l). 18. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.f, p. 12). This requires accessory equipment to be installed underground if feasible. Blanket undergrounding requirements are unreasonable according to the FCC because small radio boxes or similar items on the side of a street light pole are not “out-of-character” among other right-of-way infrastructure. Further, the FCC determined that increased per SWF costs could impair and impede the needed deployment of SWFs, which is inconsistent with national policy. (See FCC Small Cell Order ¶ 24.) Costly conditions imposed for site approval, such as undergrounding equipment, drain Verizon’s capital resources that otherwise could be used for network deployment, and would be improper to the extent fees or costs prohibit, or have the effect of prohibiting, the provision of wireless services. (See FCC Small Cell Order ¶¶ 54-61.) G/D/B Dec. 14, 2021 Item #16 Page 247 of 252 This section should be revised to state that SWF accessory equipment does not require undergrounding if the equipment complies with the volume and size standards identified in 47 CFR § 1.6002(l). 19. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.2.j, p. 12). This Section should be revised to be consistent with federal law. As discussed above, SWFs can be a height and design allowed under 47 CFR § 1.6002(l)(1) and as required on replacement poles governed by CPUC General Order 95. Further, WCFs can be a height needed to fill a significant gap in wireless coverage. (T- Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987 (9th Cir. 2009).) The regulations should therefore be revised to state that (1) SWF heights and designs are allowed if they comply with the height standards identified in 47 CFR § 1.6002(l) and in CPUC General Order 95 (as applicable), and (2) WCF heights are allowed as needed to avoid a significant gap in network coverage and capacity, and to comply with CPUC General Order 95 (as applicable). 20. Review and Approval Guidelines (WCF and SWF Design Guidelines for the ROW Section C.3.e, p. 13). The requirement in this Section that requires, for new poles without a streetlight, antennas and all equipment not installed underground be concealed and integrated into the overall design of the pole (with no exterior equipment boxes or shrouds attached to the pole), is unreasonable for SWFs. The onerous restrictions will impair and impede Verizon’s ability to densify and enhance its wireless network, and will result in an effective prohibition of wireless services. The restrictions are also inconsistent with 47 CFR § 1.6002(l) and CPUC General Order 95 (as applicable). This Section also contradicts Public Utilities Code Section 7901 that grants telephone corporations the right to place new poles in the right- of-way. California Public Utilities Code Section 7901 grants telephone corporations such as Verizon Wireless a statewide right to place their equipment along any public right-of way, including new poles. The regulations should be revised to state that the design of a new pole without a streetlight may be consistent with the height, size, and volume standards for SWFs in 47 CFR § 1.6002(l) and in CPUC General Order 95 (as applicable). G/D/B Dec. 14, 2021 Item #16 Page 248 of 252 21. Review and Approval Guidelines (Application and Review Guidelines WCFs Section E.1.b-c, p.16). The requirements for an application to include a carrier’s map of existing and proposed sites, and to describe the purpose of a WCF, are not consistent with federal law and must be eliminated. This Section violates Verizon’s rights under the TCA regarding the requirement to submit maps and an explanation of the communications services to be provided. (City of Auburn v. Qwest Corp., 260 F.3d 1160, 1176 and 1178 (9th Cir. 2001) (city violated the TCA by requiring maps and a description of services to be provided; agencies do not have the authority to request information regarding systems, plans or purposes for a WCF).) Further, under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided, or otherwise attempt to control the technological and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v. Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the technological and operational aspects of wireless services, violate the TCA).) These sections should be revised to eliminate requirements for carriers to submit maps of existing and proposed sites, and to describe the purpose of a WCF. 22. Review and Approval Guidelines (Application and Review Guidelines WCFs Section E.1.d, p.16). The requirement for a RF report with cumulative analysis of “all emitters in the vicinity” is vague, ambiguous and unworkable, and must be eliminated or revised. Neither Verizon nor any carrier will know about “all” potential emitters of RF energy in the area around a facility. Further, the “vicinity” requirement is not quantified and is therefore subject to unreasonable or irrelevant application, especially as accepted scientific standards identify that RF energy dissipates significantly even over short distances. This section should be revised to eliminate the requirement for carriers to submit a RF report with cumulative analysis of “all emitters in the vicinity,” and only require RF reports consistent with FCC regulations. 23. Review and Approval Guidelines (Application and Review Guidelines SWFs Sections E.2.a-b, p.17). These sections should be revised to eliminate the requirement to explain the purpose or technical service objective, as well as a site selection process, for a proposed SWF. G/D/B Dec. 14, 2021 Item #16 Page 249 of 252 Under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided, or otherwise attempt to control the technological and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v. Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the technological and operational aspects of wireless services, violate the TCA; see also City of Auburn v. Qwest Corp., 260 F.3d 1160, 1176 and 1178 (9th Cir. 2001) (city violated the TCA by requiring maps and a description of services to be provided; agencies do not have the authority to request information regarding systems, plans or purposes for a facility).) Further, in 2018 the FCC eliminated requirements that applicants show a “coverage gap”-based analytical approach for SWF applications and instead established a new national standard for what constitutes effective prohibition of service under the Act. (See FCC Small Cell Order, ¶¶ 9-10, 21, 37 and 40 and notes 87-88 and 94.) The City cannot require Verizon Wireless to prove the necessity of new small cells, which the FCC determined are needed to enhance service and densify networks. The FCC also disfavored dated service standards based on “coverage gaps” and the like (such as a requirement to show technical service objectives or a description of wireless services proposed here) (FCC Small Cell Order, ¶¶ 37- 40.) Finally, in 2018, the FCC rejected requirements that “applicants … show that the proposed facilities are the ‘least intrusive means’ for filling a coverage gap.” (FCC Small Cell Order ¶40 and note 94.) Accordingly, an application for a SWF is not required to comply with Section E.2.b’s requirement for an alternative site analysis. This regulation should therefore also be eliminated. The regulations in these sections should be revised to eliminate the need for SWFs to provide alternative site analyses, to show the location is the “least intrusive” design or site, to provide coverage maps, or to explain the purpose of the facility or to show technical service objectives or a description of wireless services proposed . 24. Review and Approval Guidelines (Application and Review Guidelines SWFs Sections E.2.c, p.17). The requirement for a RF report with cumulative analysis of “all emitters in the vicinity” is vague, ambiguous, and unworkable, and must be eliminated or revised. Neither Verizon nor any carrier will know about “all” potential emitters of RF energy in the area around a facility. Further, the “vicinity” requirement is not quantified and is therefore subject to unreasonable or irrelevant application, especially as accepted scientific standards identify that RF energy dissipates significantly even over short distances. G/D/B Dec. 14, 2021 Item #16 Page 250 of 252 This section should be revised to eliminate the requirement for carriers to submit a RF report with cumulative analysis of “all emitters in the vicinity,” and only require RF reports consistent with FCC regulations. 25. Review and Approval Guidelines (Application and Review Guidelines Section E.5, pp.17-18). This Section should add that the decision-maker findings shall also consider applicable federal and state law, which may modify the considerations listed compared to the City Code. 26. Review and Approval Guidelines (Application and Review Guidelines Section E.6, p. 18). This Section cannot require that an application to amend an existing WCF permit document that the WCF maintains the “smallest” or “most efficient” wireless antenna or equipment, and the requirement must be removed as unworkable and inconsistent with federal law. Under the TCA, the City cannot require Verizon to submit an explanation of the communications services being provided and whether they are current technology, or otherwise attempt to control the technological and operational aspects of wireless services. (See New York SMSA Ltd. Partnership v. Town of Clarkstown 612 F.3d 97, 105-106 (2nd Cir. 2012) (local requirements or preferences for certain or alternative technologies, and local attempts to control the technological and operational aspects of wireless services, violate the TCA).) Also, the requirement in this Section to document a facility uses the “smallest” or “most efficient” antennas and equipment should be removed as it is vague and ambiguous, and without objective or reasonable standards. Further, wireless carriers have different network operations and objectives, and the “smallest” antennas and equipment may be feasible to be used by one carrier but not feasible to be used by another carrier. The regulations in this section should be revised to remove the requirement for a WCF to use or maintain the “smallest” or “most efficient” wireless antenna or equipment. 27. Review and Approval Guidelines (Application and Review Guidelines Section E.9, p. 19). This Section regarding appointments for in-person submittals of applications must be applied in practice to allow timely, reasonable, and flexible opportunities for submittal appointments. G/D/B Dec. 14, 2021 Item #16 Page 251 of 252 Verizon would also like to recommend that the City consider an online or email application process, especially in light of current restrictions to diminish in person contact as imposed by state and federal law with regards to the pandemic, with such requirements constantly changing. Verizon requests that these comments be include in the administrative record regarding the City of Carlsbad’s Draft Revisions to the Review and Operation Guidelines for Wireless Communication Facilities (City Council Policy No. 64). Verizon also requests that the City modify its proposed Revisions to the Review and Operation Guidelines for Wireless Communication Facilities (City Council Policy No. 64) to reflect the comments stated above, and to align the City’s Policy with the requirements of applicable federal and State law. G/D/B Dec. 14, 2021 Item #16 Page 252 of 252 Tammy Cloud-McMinn From: Sent: To: Council Internet Email Monday, December 13, 2021 1 :03 PM City Clerk Subject: FW: AMENDMENTS TO CITY COUNCIL POLICY NO. 6~11 Receive -Agenda Item# 11,e For the Information of the: qTYCOUNCIL Date tJ./l!J/;;J CA ✓ CC~ From: Mark Graham <Mark@keepcellantennasaway.org> Sent: Monday, December 13, 202112:01 PM . CM ✓ACM /DCM (3) ./ To: Corey Funk <Corey.Funk@carlsbadca.gov>; Eric Lardy <Eric.Lardy@carlsbadca.gov> Cc: Council Internet Email <CityCouncil@carlsbadca.gov>; Matthew Hall <Matt.Hall@carlsbadca.gov>; Keith Blackbulill <Keith.Blackburn@carlsbadca.gov>; Peder Norby <Peder.Norby@carlsbadca.gov>; Priya Bhat-Patel <Priya.Bhat- Patel@carlsbadca.gov>; Teresa Acosta <Teresa.Acosta@carlsbadca.gov> Subject: AMENDMENTS TO CITY COUNCIL POLICY NO. 64 December 13, 2021 Dear Mr. Funk, Mr. Lardy, and Carlsbad City Council, As you know this is item 16 on the agenda for the Council meeting scheduled for tomorrow afternoon, December 14, at 3:00. https:/ /www.carlsbadca.gov/home/showpublisheddocument/8597 /63 77 4 7245989667 522 I have some questions about the staff report and would appreciate your answers. Please acknowledge your receipt of this message and respond at your earliest convenience. 1. What is the City's source of information for this statement, which is on page 572 in the staff report? This. is false information according to Verizon. "Locations: The 5G technology small wireless facilities typically provide coverage over smaller areas than macro sites (approximately a 500-to 1,000-foot radius) and therefore will likely require the installation of many such facilities throughout the city. Due to the very small coverage areas, the proposed revisions exempt small wireless facilities from the preferred location requirements contained in the current Policy No. 64 Section A." This is contrary to what the industry says about the range of a 5G cell antenna. According to former Verizon CEO Lowell McAdam the range of such an antenna is greater than 2,000'. Because of that there are far fewer cell antennas needed to provide coverage in a city than if the range were only 500 to 1,000'. "We're now designing the network for over 2,000 feet from transmitter to receiver, .... " Here it is verbatim. 5:29 CNBC interviewer, "Can you get through trees? Can you get through leaves? Can you actually get somewhere were you don't need cell sites ev, you know 25 feet from my house?" 1 5:38 Verizon CEO Lowell McAdam: "Yeah well those were some of what I call the myths of millimeter wave, because no one thought that was p od, and by the way we're the only ones that have it now so it's to their advantage to say it's no good." "When we went out in these 11 markets, we tested for well over a year so we could see every part of foliage. every storm that went through. We have now busted the myth that it has to be line-of-sight. It does not. We busted the myth that foliage will shut it down. I mean that was back in the days when a pine needle would stop it. That does not happen. And the 200 feet from a home? We're now designing the network for over 2,000 feet from transmitter to receiver, which has a huge impact on our capital need going forward. So those myths have disappeared." 6:25 Watch the video of the Lowell McAdam interview at 5 :27. It is easier to get to this point in the video on the first link below. https:/ /youtu. be/I Y Aufhlgkpl?t=3 28 https ://www.cnbc.com/video/2018/05/15/verizon-ceo-lowell-mcadam-5 g-future.html 2. Did staff call and speak with Elk Grove City Attorney Jonathan Hobbs about Elk Grove's cell antenna policy and in particular the "Front Yard Rule" which is in the Elk Grove Municipal Code? What questions did you ask Mr. Hobbs? What answers did Mr. Hobbs give you? · b. No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from, a front yard of any residential dwelling. EGMC 23.94.050 A.6.b. Here it is in context. 23.94.050 Development standards. A. General Development Standards. Unless otherwise exempt pursuant to EGMC Section 23.94.040, Exemptions, or as otherwise provided in an agreement approved by the Elk Grove City Council pursuant to EGMC Section 23.94.035, Small Cell Wireless Communications Facilities, the following general development standards shall apply to all wireless communications facilities: 6. In a residential zoning district, the following development standards shall apply, unless the applicant can demonstrate with substantial evidence satisfactory to the approving authority that such siting limitation will materially inhibit personal wireless service as to a particular small cell wireless communication facility. a. No small cell wireless communication facility shall be placed within five hundred (300' O") feet of another small cell wireless communications facility. 2 b. No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from, a front yard of any residential dwelling. Here is the signed version of City of Elk Grove Ordinance No. 19-2019, which approved a new cell antenna policy which includes zoning code amendments and a master license agreement between the City and AT&~ / Cingular. You can download it from this page. City ofEG Ordinance 19-2019 https://www.codepublishing.com/CA/ElkGrove/#!/ElkGrove23/ElkGrove2394.html#23.94.050 3. Did staff call and speak with attorney Gail Karish from Best, Best and Krieger, LLC regarding the Front Yard Rule and whether a city could adopt it? What questions did you ask Ms. Karish? What answers did sl-_e give you? As you may know my comment letter, included in the staff report, gave a quotation from Ms. Karish at a Ci1jy Council meeting in Culver City in November, 2021. Ms. Karish said, in response to the Mayor's question, that YES the City could adopt the front yard rule or a variation of it and NO, it would not create an effective prohibition. Culver City on November 8, 2021. However when asked by the Mayor whether the City could adopt the Frcmt Yard Rule as in Elk Grove or something similar to it she said yes. Ms. Karish's response was, "I'm not familiar with the details of that particular rule although I do understand what it um encompasses, or the, the policy behind it. .... Um so, I just want to go back and mention. I did mention in the, the uh, presentation that you can regulate aesthetics. And so to the extent that a rule like a Front Yard Rule, however formulated, ah is directed towards avoiding unsightly installations directly in front of houses um I'm sure um looking at the definition and working on the terminology we could probably come up with a rule that would uh address that concern uh whether its exactly how it was uh phrased in, in Elk Grove or in some other way. Uh you you can regulate aesthetics and so if there are uh you know certain placements within the right of way that would be aesthetically not pleasing you can certainly uh have a standard that would direct applicants not to place their facilities in front of picture windows, for example, um or in front of a home. And that may well, uh as long as there are other alternatives available in the area that would probably uh pass muster under the FCC regulations and Federal law." (1 :20:47 of the City Council meeting video) Ms. Karish also participated in a City Council meeting in Malibu on December 9, 2020 during which the City Council adopted a version of Elk Grove's Front Yard Rule. Ms. Karish advised the City Council on the specific wording of that policy, which was," D. Placements shall not be in front of dwelling units or schools." (City of Malibu Resolution 20-65, section 5.D.) That is on page 800 of the staff report. 4. Mr. Hobbs obviously believes that the Front Yard Rule does not create an effective prohibition. Why does staff disagree with Mr. Jonathan Hobbs? 3 5. Ms. Karish obviously believes that the Front Yard Rule does not create an effective prohibition. Why does staff disagree with Ms. Gail Karish? 6. The staff report for this Council meeting is 1,143 pages long. It includes a 252 page staff report on agenda item 16, which begins on page 569. The ONLY analysis and discussion of the Front Yard Rule by staff in the staff report is on page 710 and it says: "Some public comments requested a prohibition on SWFs in the ROW adjacent to a residential front yard setback. Staff does not recommend this as it would likely result in a prohibition of service. A better option would to apply the location preferences in Section A to SWFs as described below." Questions about this. 6.a. The Front Yard Rule is not a setback. It does not contain the word "setback". Why did staff insert the word "setback" in its discussion of the Front Yard Rule? 6.b. What is the factual basis for the staffs conclusory statement that, "Staff does not recommend this as it would likely result in a prohibition of service."? Is there any factual basis? 6.c. What is an "effective prohibition" in staffs opinion? This is from the Telecommunications Act of 199E, as we know. Staff does not appear to understand what an effective prohibition is. Please state your understanding of it. 6.d. What is the staffs analysis of the Front Yard Rule as it would apply in Carlsbad? How does this analyss show that the Front Yard Rule would create an effective prohibition? · 6.e. Elk Grove has had the Front Yard Rule since August 28, 2019. It has not created an effective prohibition. Why does staff believe it would create an effective prohibition in Carlsbad? 6.f. Malibu has had the Front Yard Rule, a variation of it, since December 9, 2020. It has not created an effective prohibition. Why does staff believe it would create an effective prohibition in Carlsbad? 7. The Front Yard Rule and a policy of location preferences are not mutually exclusive. That is, the City ccmld adopt and use both. Do you agree? If staff believes they are mutually exclusive please explain your analysi3 and reasoning and provide the supporting facts. 8. At one point about 145 Carlsbad residents signed a petition opposing cell antennas on city streets. I mentioned this petition in my public comments which is on page 798 of the staff report. Irene Tsutsui mentioned the petition in her public comment which is on page 777 of the staff report. She said that 150 -2iD0 residents signed the petition. I recommended that the City find those petitions (page 801) Did you find therr::? 9. Recommendation 6 on page 710 of the staff report is for an annual report. The staffs response is. Staff recommends this option. Reporting requirements have been included in other jurisdictions. The annual report could ask for verification that facilities are within FCC limits. The following language could be added to Policy 64: "Prior to July 1 of each calendar year, each Small Wireless Facility provider should provide 4 documentation identifying the location of each facility in the right-of-way within the city; including those approved but not built. I do not see such a requirement in the City's proposed revisions to policy 64. Am I missing it? Is the omission of this requirement intentional? 10. Insurance and indemnification. Ms. Irene Tsutsui recommended that the City include a requirement for insurance for each cell antenna in her letters that begin on page 7 54 of the staff report: She showed the City of Encinitas policy on page 767. Although the staff report does mention insurance on pages 711 and 727-728 it falls far short of what Ms. Tsutsui has recommended. In the areas of indemnification, the amount of insurance, and also having insurance against injury to the body caused by exposure to cell antenna electromagnetic radiation. What is the reason for this? Why are the insurance dollar amounts so small? Many carriers have insurance policies that exclude coverage for a "pollutant" and define "pollutant" to inch.de electromagnetic radiation, electromagnetic radiation, cell antenna and cell tower radiation, etc. This means :hat such a policy does not cover injury and damages from cell antenna radiation. Will the City require an insur2nce policy that does NOT have such an exclusion? 11. Fire. The insurance amounts in the commercial general liability insurance policy are way too small to cover the possible damage from a fire caused by a cell antenna, $2 million per incident and $4 million aggregate. That could be a few houses. We have seen enormous fires in California in the last few years. Why aren't the insurance amounts higher? The staff report also says, "An option is included in Exhibit 4 to add requirements for insurance and indemnification for WCFs and SWFs not subject to a_master license agreement." Where is that? The staff heeds to recommend this to the Council. 12. This is a 3 part question. 12.a. Again on the Front Yard Rule how many City owned street light poles are there in the City of Carlsbad that are NOT "immediately adjacent to or immediately across the street from the front yard of a residential dwelling"? Have you looked at them on a map of Carlsbad? 12.b. Based on the assumption of a 2,000' range of a cell antenna would a carrier be able to provide personal wireless service in the city by locating its cell antennas on some of those street light poles? 12.c. Based on the assumption of a 500 -1,000' range of a cell antenna would a carrier be able to provide personal wireless service in the city by locating its cell antennas on some of those street light poles? 13. What is the staffs understanding of the relationship between a lower frequency cell antenna, often referred to as 4G, and a higher frequency cell antenna, often referred to as 5G? Do the 5G cell antennas require the presence of 4G cell antennas? Can the 5G cell antennas work without the presence of 4G cell antennas? 5 Tammy Cloud-McMinn From: Sent: To: Subject: Attachments: Irene <irenegdnight@earthlink.net> Tuesday, December 14, 2021 10:27 AM All Receive -Agenda Item# 1JR For the Information of the: __ CJ.TY. ,COUNCIL Date&/1 '1/lJCA _cc_ CM _ACIOI -rs@M tot_ Corey Funk; Eric Lardy; Matthew Hall; Peder Norby; Keith Blackburn; Priya Bhat-Pat~; Teresa Acosta; Celia Brewer; City Clerk REVISION/AMENDMENTS TO CARLSBAD CITY COUNCIL POLICY NO. 64 MEETING 12/14 ITEM 16 image.png; image.png; image.png; image.png; image.png; image.png; image.png; image.png Dear Mr. Lardy, Mr. Funk and Carlsbad City Council, Re Item 16 on the agenda for the Council meeting scheduled for this afternoon, December 14, at 3:00 pm. ( ( (https://www.carlsbadca.gov/home/showpublisheddocument/8597 /637747245989667!:-22 (https://www.carlsbadca.gov/home/showpublisheddocument/8597 /637747245989667522:)))) I am submitting the following comments regarding the revisions to Policy 64. If I cannot be at the meeting today due to a prior appointment, please include my comments for the meeting records. 1) Pages 164 & 165 of 252; Page 143 Exhibit 4 Change distance required for determining location of other poles from 500 ft to 200 ft. The draft policy includes a requirement that applications consider other more preferred po[e types within 500 feet of the proposed location. During public review, one comment recommended that this be modified to 200 feet. "Staff recommendation is neutral. Small Wireless Facilities provide service to smaller areas and are often used to fill capacity needs rather than provide broad coverage AT&T In Section. c.:...c regarding determinations of whether a more preferred support pole type exists nearby, reduce the radius from 500 ft. to 200 ft. for, as a 500 ft. radius is too far in terms of ruling out alternatives for a SWF, which may only propagate 800 ft.11 Re AT& T's request to reduce the distance in seeking more "preferred pole types" from 500 =t to 200 ft. is overly greedy! I am both deeply perplexed and secondly shocked to see that staff is taking a neutral position. AT& T's contention that a 500 ft radius is too far is not substantiated by any facts or supporting maps or analysis. My impression is industry has moved well beyond 500 ft as an acceptable range so why would you even consider such a drastic change? 1 According to former Verizon CEO Lowell McAdam the range of such an antenna is greater t 1an 2,000'. Because of that there are far fewer cel l antennas needed to provide coverage in a ci ty than if the range were only 500 to 1,000'. "We're now designing the network for over 2,000 feet from transmitter to receiver, .... 11 After our November zoom meeting with Eric Lardy and Corey Funk, our group made it clea r we wanted restrictions on placement of 4G/5G smart cell wireless facilities in residential neighborhoods. This change would open up the floodgates for unwanted installations exposing us to even greater hazards not to mention lower property values. While other cit es are requiring 500 to 1500 setbacks, what is Carlsbad doing but going in the wrong directioni?! Also, I wonder what other undesirable loopholes telecoms would bring up as a r.esult of this change, and my huge concern is its effect on OTHER conditions laid out in the revised Policy 64. What else is AT&T or other telecoms going to demand once you set this dangerous precedent in your policy?! Have you given any thought to how it could be used legally to open that door? Why even go there?! 2) FRONT YARD RULE There was apparently no inquiry made with the Elk Grove city officials before dismissing the Front Yard Rule. There does not seem to be a deep enough grasp and understanding that this rule is NOT a setback.and it can be legally implemented giving telecoms alternative location choices other than blocking them outright with 1500 foot setbacks. Please refer to the article I am posting here which is the first research study I have seen to date that rationally and thoughtfully poses the possibility there is a connection between the spread of Covid-19 and 5G. I have up to now refrained from sharing the principle behind this concern as it is admittedly up to now speculative. However, there is mounting data and ma ps that something is making people sicker wherever 5G is more prominent. Wuhan, China is t he prime example where 10,000 towers were turned on just weeks prior to the Covid outbrea~:. Kirkland, WA is considered ground zero in the USA where a nursing home incurred 30 deatt-s. Bill Gates' company called Pivotal installed a first of its kind 11 built-in 11 5G system inside the nursing home right before the outbreak. The research study is gaining traction as I have seen it analyzed on other web sites. The authors are so concerned, they are calling for a moratorium on 5G. Considering the recent court ruling criticizing FCC for ignorrng al the peer reviewed studies pointing to the radiation harm from EMF/RF transmission signa ls and the recent lawsuit won by the teacher who claimed serious disability to her wireless radiation exposure,, the city is best served by heeding the authors recommendation to follow the Precaution Principle which I have repeatedly advocated It is not well served by going in the OPPOSITE direction. There is a growing body of evidence as seen through microscope analysis of the blood of sick patients, that oxygen depletion is occurring on an unprecedented level. Dr Cameron Kyle-Siddell caught it in patients last year. 2 Telecoms will not deny the connection of oxygen depletion to certain EMF/RF signal as they know which frequencies yield the best reception. Oxygen attenuates at a measurable level at 60 Ghz; the blood thickens and becomes "sticky" and this phenomenon is being seen in Cm,id patients which is atypical for a virus symptom. I have done my own research and believe trere is a connection, not necessarily causal but concerning enough to warrant taking a Precautionary Principle approach. ARTICLE: Evidence for a connection between coronavirus disease-19 and exposure to radiofrequenc\i radiation from wireless communications including 5G ... (https://urldefense.com/v3/_https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8580522) /_;! !E_ 4xU6:-vwMWK-Q!-NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95- 4Is7uGOUYXhtixYFs$ ) DR. CAMERON KYLE-SIDDELL"! am a physician who has been working at the bedside of COVlD+ patients in NYC. I believe we are treating the wrong disease and that we must change what we are doing if we want to save as many lives as possible. " ( ( (https://urldefense.com/v3/_https://www.realclearpolitics.com/video/2020/04/08/dr _ca71e ron_kyle-sidell_does_covid- 19_really_cause_ards_acute_respiratory_distress_syndrome.html_; ! !E_ 4xU6-vwMWK-Q!- NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-4Is7uGOUYX8EijGSI$ (https://ur1defense.com/v3/_https://www.youtube.com/watch?v=k9GYTcS3r2o_; ! !E_ 4xJ6- vwMWK-Q!-NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95- 4Is7uGOUYXYuJvVjM$)) THE MICROWAVE ABSORPTION SPECTRUM OF OXYGEN -Novemb=r 19, 1948 -SG Genocide ( (https://urldefense.com/v3/_https://stop5g.cz/us/blood-clots- inability-to-breathe-and-60-ghz-the-microwave-absorption-spectrum-of-oxygen-november-19- 1948-Sg-genocide_; ! ! E_ 4xU6-vwMWK-Q!- NGZN kE4bZG0H UnDSFIRv9IjWH mYloOSpBLkunhQulgf2DO95-4Is7uGOUYXLuXfYuw$ (https://urldefense.com/v3/_https://frankreport.com/2020/03/22/ground-zero-for-inside:- the-build ing-Sg-was-a lso-grou nd-zero-for-coronavirus-in-the-usa))))) )/_; ! ! E_ 4xU6-vwMWK- Q!-NGZN kE4bZG0H Un DSFI Rv9IjWH m YloOSpBLku n hQu lgf2DO95-4Is7uGOUYXgONGq RY$ 60 GHz Health Risks (https://urldefense.com/v3/_https://www.electrosensitivity.co/60-ghz- health-risks.html_; ! ! E_ 4xU6-vwMWK-Q!- NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-4Is7uGOUYX69yX7rk$) 3). Page 161 FIRE RISK 4 Irene Tsutsui 2 Add a statement that the City ensures WCF placement in a way that does not necessarily cause adverse impacts on aesthetics, reduction in property values or cause dam3ge as a result of such things as insufficient fall zones, structural failures, electrical fires or other 3 related adverse events. See Irene Tsutsui Letter 2 attached to this table for additional info and suggested language. "The draft policy includes requirements to limit impacts to aesthetics and safety requirements, and includes proximity to residential uses as a factor in the decision. All wireless facilities w II be reviewed by the city's Fire Prevention Bureau. Carlsbad Fire Prevention has not seen anr1 concerns of fire within our Wild land Urban Interface areas due to cellular antennas, but rather due to electrica·I transmissions lines. Statewide, the fire prevention industry's efforts have been focused on the area of fire risk due to electrical transmissions lines. With this in mind, the City recognizes potential risks of downed electrical facilities that may occur by the addition of more equipment to utility poles. Accordingly, all applications for wireless communicatiors facilities, including small wireless facilities, are reviewed by the Carlsbad Fire Prevention Bureau. The California Fire Code addresses relative code concerns regarding the installation of wireless communication facilities throughout the state, and Fire Prevention ensures that these installations meet state code where applicable. All applications will also require building and safety review to evaluate compliance with structural support and loading standards" As I pointed out in my previous correspondence, the Poinsettia fire in 2014 caused $23 million in damages. Dismissing Carlsbad as outside the hazardous zone conveniently overlooks the fact that the city itself has declared 11fire11 as the number one hazard . . Did you inquire into my concern about the smart meter "varistor" component and surge issues making smart cell facilities vulnerable to electrical fires that Susan Foster mentioned in her letter to Malibu officials which I submitted in prior correspondence? I post the excerpt herewith from her letter. I did not see any verbage that addressed the electrical fire hazard issue aside from a staff statement that Carlsbad Fire Prevention would review permits. a) QUESTION: Where is it stated that the Carlsbad Fire Prevention will review permits?. I die not see it in the revised Policy 64. b) Here is Susan Foster's technical description of the risk inherent in the smart meter '·'varistor" component of smart cell towers as well as the surge protection and on/off process triggering fire issues. Please review her discussing the risks in the letter she wrote to the Malibu mayor and city council. ( ( ( (https://urldefense.com/v3/_https://www.activistpost.com/2020/09/firefighters-testimory- on-cell-towers-and-5g-is-not-favorable-california.html_; ! !E_ 4xU6-vwMWK-Q!- NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-4Is7uGOUYXzHB_F-k$ (https://urldefense.com/v3/_https://www.activistpost.com/2020/09/firefighters-testimory- on-cel I-towers-a nd-Sg-is-not-favora ble-ca liforn ia. htm I_;!! E_ 4xU6-vwMWK-Q!- NGZN kE4bZG0H Un DSFI Rv9IjWH m YloOSpBLku nhQu lgf2DO95-4Is7uGOUYXzH B _F-k$ )))) ( ( ( (https://urldefense.com/v3/_https://www.activistpost.com/2020/09/firefighters-testimory- on-cell-towers-and-5g-is-not-favorable-california.html_; ! !E_ 4xU6-vwMWK-Q!- 4 NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-4ls7uGOUYXzHB_F-k$ (https://urldefense.com/v3/_https://www.activistpost.com/2020/09/firefighters-testimony- on-cell-towers-and-Sg-is-not-favorable-california.html_;! !E_ 4xU6-vwMWK-Q!- NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-4ls7uGOUYXzHB_F-k$ )))) EXCERPT: "The concerns regarding these towers are many and one of my greatest concerns is fire. This is a safety concern and therefore is on the table for discussion and action if necessary, according to even the strictest FCC interpretation. I wrote the fire section for the Encinitas Ordinance under the oversight of Ariel Strauss and would be happy to help Malibu borrow from the Encinitas Ordinance. We took from and added to ·the existing Sebastopol Ordinance which has an excellent fire section. I would invite you to take from what we have already researched and incorporated into existing ordinances." "I served as a consultant on the Encinitas Ordinance, having lived in neighboring Rancho Santa Fe for 32 years. We learned from experts we sought out that there are several fire risks inherent in the cell towers themselves. One risk has to do with smart meters within the 4G towers and some of the SG towers. 4G is needed for SG to work and unless all the carriers are functioning under a flat rate system, electric usage is measured by a smart meter within a large number of cell towers. You may already be very well aware that smart meters can cause fires. What we learned from our experts was that under certain circumstances the surge protection in smart meters is inadequate. Smart meters utilize what is called a "varistor" as surge protection for up to around 350 V. That is the level of surge protection you would have typically find in a televis on set. It is inadequate for smart meters in the following circumstances. Lightning strikes cause surges of voltage in the multi-thousands of volts. In those cases, the varistor would be inadequate. Another time electrical surges are an issue are when 1) power has been lost and restored; and 2) during Santa Ana or El Diablo wind events, utilities may decide to turn pow,er off and on in an effort to avoid sparks that could cause a fire. In a dangerous twist of irony, the act of turning the power off and back on again may trigger surges the varistor cannot hold back in smart meters within cell towers. In a small percentage of the cases where this happens, likely 1% -2%, electrical fires can be triggered. Another circumstance in which electrical fires can be triggered almost 100% of the time is if the "connector" linking the power supply to the antenna itself is not replaced. This part should be replaced every 3 to 5 years but certainly closer to the 3-year mark if the towers are expased to salty air; this describes part of your County. Our electrical engineering expert said that close to 100% of the time an electrical fire will ensue if connectors are allowed to corrode and the electrical supply is not held in place." "The 2007 Malibu Canyon Fire was determined to be caused by wireless equipment on a utlity pole. I don't have to remind you of the tragedy of that fire. I do not have a high degree of confidence that there has been a substantive change in maintenance among the wireless carriers." 5 11 1 believe for this reason and so many others that indemnification by the wireless carriers as well as high dollar amounts of insurance per instance and in the aggregate should be considered for Malibu. You have the right to ask for both. Lloyd's of London and Swiss Re have long refused to indemnify for RF radiation harms. These leading insurance companies are concerned about the eventual litigation that will come when the law has been adjusted to favor citizens/consumers as opposed to telecommunications companies. Thus, the telecom industry is self-insured and you can make of that what you will. I believe Encinitas was able to locate, through an insurance broker, a pollution insurance company that did cover for RF radiation." The increase of smart cell wireless facilities in our neighborhood are bound to pose a hazard one way or the other. The equipment is composed of any number of complex parts which, if defective, will cause problems including electrical fires. I do not think staff has given this matter adequate consideration as far as the overall risk the proliferation of such facilities Will raise throughout the city of Carlsbad. Some kind of policy statement recognizing the city is aware of the overall risk of adding smart cell facilities with steps taken to address it including insurance and indemnification,, and implementing annual reports with outside expert consultation on a regular basis would go a long way to assure citizens their safety is being considered .. Meanwhile will someone be making inquiries into the 11varistor11 issue? Encinitas is likely a good source of information on that since Ms. Foster helped them with tt-eir fire verbage. c) Page 162 ridgeline verbage Irene Tsutsui 2 Policy 64 should prohibit WCFs from being installed on or near a ridgeline or slope abutting a chapparal populated area due to fire risk. See Irene Tsutsui Letter 2 attached to this table for additional info and suggested language. "Small wireless facilities are unlikely'to be proposed on ridgelines or in open space areas due to the more limited range. Macro WCFs can be proposed in these areas and will go through the existing permit process in Policy 64, including review by the city Fire Prevention Bureau.]' I call your attention to the following revision verbage: p 7 of 22 (p125) 3. Visibility to the Public -In ·all areas, WCFs should be located where least visible to the public and where least disruptive to the appearance of the host property. Furthermore, no WCF should be installed on an exposed ridgeline or in a location readily visible from a public place, recreation area, scenic area or residential area unless it is satisfactorily located and/or screened so it is hidden or disguised. 6 If as you say a small wireless facility is unlikely to be proposed on ridgelines or in open space, why don't you just eliminate the words "unless it is satisfactorily located and/or screened so it is hidden or disguised."?? Malibu's language is very specific as follows: (see attachment) Page 201 of 252.(first attachment) 11 Ridgelines. No personal wireless service facility shall be placed on or near a ridgeline.11 (first attachment) d) Page 16 of 252 (Attachment #6( lists Preferred Locations and Discouraged Locations. CAN YOU PLEASE ADD "slopes abutting chaparral populated areas" as item j (Preferred) and item g (Discouraged) or wherever you think it is appropriate to protect homes at greater risk of a fire hazard. Aside from the unresolved issues with smart meters in connection with smart cell wireless facilities posing a potential electrical fire hazard., it is important to keep the risk away from homes abutting chaparrel populated areas. Isn't one way to do that is by eliminating smart :ell facilities on or near ridgelines? What kind of assurance can I give the homeowners in my community who came very close to having their homes burned down in the 2014 Poinsettic fire? Will the city make an effort to keep smart cell wireless facilities far enough away from our slopes where Santa Ana winds caused fast-moving fires in 2014? 4) PUBLIC NOTICE- See attachment #2 page 212 of 252 (Malibu ord477 U page 10 of 16) Malibu-ord-unsigned-477U ( (https://ur1defense.com/v3/_http://www.keepcellantennasawayfromourelkgrovehomes.org/ wp-content/uploads/2020/12/Malibuord-unsigned-4 77U.pdf_; ! ! E_ 4xU6-vwMWK-Q!- NGZN kE4bZG0H UnDSFIRv9IjWH mYloOSpBLkunhQu lgf2DO95-4Is7uGOUYXH7vC5PI$ (https://urldefense.com/v3/_http://www.keepcellantennasawayfromourelkgrovehomes.org/ cell-antenna-policies/malibu_; ! ! E_ 4xU6-vwMWK-Q!- NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-4Is7uGOUYX9XMcBoo$ )) See attachment #3 Page 206 of 252 per Checklist for Municipal Codes from Americans for Responsible Technology following recommended conditions: The code requires applicant to provide to all homeowners within 500 feet of the proposed installation notification by certified mail. The code requires the applicant to post conspicuous signs of pending applica9ons at all proposed sites. 7 All I am seeing in the staff report is the requirement for the applicant to give notice but there are no details.other than the 300 foot distance parameter. I did not see any specific conditions in the revised language including time deadlines and methods of mailing .. What kind of conditions are you going to specify so that citizens can address those conditions? The Malibu language on public notice is very specific and the Municipal Code Checklist recommends mailing by certified mail and that conspicuous signs be posted both of which 2re very reasonable conditions. It is important to have specific conditions on this very important issue. 5) ANNUAL REPORTS See attachment #4 Page 142 of 252 a) My one strong recommendation is you change the word "should" to "shall" provide documentation identifying the location ... " otherwise they have no incentive or requirement to actually do this task. This provision is meaningless, however, without the requirement to verify that the facilities are within FCC limits. Without this requirement you have no recourse to pursue correcting any misrepresentations. Attorney ndrew Campanelli stated that independent tests should be done, otherwise how are you ·going to be assured what telecoms represent is accurate? He says the vast majority of time the data they include is not accurate and cannot be backed up. C The city will need probative evidence in a court of law if you have to take steps to enforce compliance. He said the courts will not except any data or information that cannot be backEd up with probative evidence so the burden of proof should focus first on making telecoms,incentivized to comply.to alleviate your burden. b) attachment #5 Page 141 of 252 Giving your recommendation to hire "outside experts" is a .big plus and would give the City a lot of flexibility in the enforcement arena. It's the smart thing to do as a way of making sure smart cell wireless facilities are always up to date and thus made safer and more reliable and less prone to start electrical fires. 6) INSURANCE AND INDEMNIFICATION See attachment #7-and #8 Re staff report: "An option is included in Exhibit 4 to add requirements for insurance and indemnification for WCFs and SWFs not subject to a master license agreement." Staff needs to make recommendations to the Council along the lines of indemnification verbage in the attachment #8 (Page 199 of 252). 8 Current insurance'is not adequate. Lloyds of London won't even insure any wireless/cellula-- technology devices calling them the "new asbestos." The $2 million per incident and $4 million aggregate is way too inadequate. Fire is a huge risk in Carlsbad as demonstrated in 2014 with the fast-moving fires. See below for my prior submitted suggested verbage and their sources. Policy 64 Item E. Application and Review Guidelines (Pages 16 through 20) INSURANCE AND INDEMNIFICATION, California Coastal Commission and NEPA permits Application and Review Guidelines (pages 16through 20) ( (https://urldefense.com/v3/_https://scientists4wiredtech.com/malibu_; ! ! E_ 4xU6-vwMV✓K­ Q!-NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-4_Is7uGOUYXPY2ouzg$ (https://urldefense.com/v3/_https://scientists4wiredtech.com/malibu_; ! ! E_ 4xU6-vwMVJK- Q!-NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95-4Is7LiGOUYXPY2ouzg$ )) Items 16, 17, 18 and 19) Add as item 17: "Insurance.The applicant shall maintain current at all times liability and property insurancefor each small cell installation in the Public Right Way. Prior to the issuance of a personal wirefoss service related permit,the applicant shall pay for and provide a copy of a policy of General Liability Insurance issued by an "A" rated Insurance company and cover the named applicant and each operator of an antenna if different than the applicant. Each Such policy shall be a claims made policy, listing the applicant as a primary insured, and the City as an additional insured, in the minimum amount of $2,000,000 / $25,000,000. The policy shall not have a pollution or other exclusion which excludes injuries or damages from EMF/RFexposures. A true and correct copy of the policy of insurance shall constitute proof of insurance required by this Subsection." Encinitas also has an extensive section on insurance: ( (https://urldefense.com/v3/_https://ed84ae68-328e-42f4-847a- 66fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdf*20P22_; JQ!!E_ 4xU6-vwMWK-Q!-NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95- 4Is7uGOUYXjG9szk0$ (https://urldefense.com/v3/_https://ed84ae68-328e-42f4-847a- 66fb863ac9df.filesusr.com/ugd/2cea04_953f1b48d3164fd380211040867b2e5a.pdfP22_; !JE_ 4xU6-vwMWK-Q!-NGZNkE4bZG0HUnDSFIRv9IjWHmYloOSpBLkunhQulgf2DO95- 4Is7uGOUYXw8BSIKU$) Please acknowledge your receipt of this message and respond at your earliest convenience. The Council meeting is this afternoon at 3:00pm. Sincerely, 9 Irene Tsutsui Carlsbad Constituent CAUTION: Do not open attachments or click on links unless you recognize the sender and know the content is safe. 10 Your email has been received and was forwarded to the City Clerk for distribution. Sincerely, , Ci1;yof Carlsbad Corey Funk, AICP Associate Planner Planning Division Community Development Department City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 http:ljwww .carlsbadca.gov 760-602-4645 I corey.funk@carlsbadca.gov From: Mark Graham <Mark@keepcellantennasaway.org> Sent: Monday, December 13, 202112:01 PM To: Corey Funk <Corey.Funk@carlsbadca.gov>; Eric Lardy <Eric.Lardy@carlsbadca.gov> Cc: Council Internet Email <CityCouncil@carlsbadca.gov>; Matthew Hall <Matt.Hall@carlsbadca.gov>; Keith Blackburn <Keith.Blackburn@carlsbadca.gov>; Peder Norby <Peder.Norby@carlsbadca.gov>; Priya Bhat-Patel <Priya. Bhat-Patel@ca rlsbadca .gov>; Teresa Acosta <Teresa .Acosta@ca rlsbadca .gov> Subject: AMENDMENTS TO CITY COUNCIL POLICY NO. 64 2 December 13, 2021 Dear Mr. Funk, Mr. Lardy, and Carlsbad City Council, As you know this is item 16 on the agenda for the Council meeting scheduled for tomorrow afternoon, December 14, at 3:00. https://www.carlsbadca.gov/home/showpublisheddocument/8597 /63 77 4 7245989667 522 I have some questions about the staff report and would appreciate your answers. Please acknowledge your receipt of this message and respond at your earliest convenience. 1. What is the City's source of information for this statement, which is on page 572 in the staff report? This is false information according to Verizon. "Locations: The 5G technology small wireless facilities typically provide coverage over smaller areas than macro sites (approximately a 500-to 1,000-foot radius) and therefore will likely require the installation of many such facilities throughout the city. Due to the very small coverage areas, the proposed revisions exempt small wireless facilities from the preferred location requirements contained in the current Policy No. 64 Section A." - This is contrary to what the industry says about the range of a 5G cell antenna. According to former Verizon CEO Lowell McAdam the range of such an antenna is greater than 2,000'. Because of that there are far fewer cell antennas needed to provide coverage in a city than if the range were only 500 to 1,000'. "We're now designing the network for over 2,000 feet from transmitter to receiver, .... " Here it is verbatim. 5:29 CNBC interviewer, "Can you get through trees? Can you get through leaves? Can you actually get somewhere were you don't need cell sites ev, you know 25 feet from my house?" 5:38 Verizon CEO Lowell McAdam: 3 "Yeah well those were some of what I call the myths of millimeter wave, because no one thought that was good, and by the way we're the only ones that have it now so it's to their advantage to say it's no good." "When we went out in these 11 markets, we tested for well over a year so we could see every part of foliage, every storm that went through. We have now busted the myth that it has to be line-of-sight. It does not. We busted the myth that foliage will shut it down. I mean that was back in the days when a pine needle would stop it. That does not happen. And the 200 feet from a home? We're now designing the network for over 2,000 feet from transmitter to receiver, which has a huge impact on our capital need going forward. So those myths have disappeared." 6:25 Watch the video of the Lowell McAdam interview at 5:27. It is easier to get to this point in the video on the first link below. https://youtu.be/lYAufhlgkpI?t=328 https://www.cnbc.com/video/2018/05/15/verizon-ceo-lowell-mcadam-5g-future.html 2. Did staff call and speak with Elk Grove City Attorney Jonathan Hobbs· about Elk Grove's cell . antenna policy and in particular the "Front Yard Rule" which is in the Elk Grove Municipal Code? What questions did you ask Mr. Hobbs? What answers did Mr. Hobbs give you? b. No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from, a front yard of any residential dwelling. EGMC 23.94.050 A.6.b. Here it is in context. 23.94.050 Development standards. A. General Development Standards. Unless otherwise exempt pursuant to EGMC 4 Section 23.94.040, Exemptions, or as otherwise provided in an agreement approved by the Elk Grove City Council pursuant to EGMC Section 23.94.035, Small Cell Wireless Communications Facilities, the following general development standards shall apply to all wireless communications facilities: 6. In a residential zoning district, the following development standards shall apply, unless the applicant can demonstrate with substantial evidence satisfactory to the approving authority that such siting limitation will materially inhibit personal wireless service as to a particular small cell wireless communication facility. a. No small cell wireless communication facility shall be placed within five hundred (500' O") feet of another small cell wireless communications facility. b. No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from, a front yard of any residential dwelling. Here is the signed version of City of Elk Grove Ordinance No. 19-2019, which approved a new cell antenna policy which includes zoning code amendments and a master license agreement between the City and AT&T/ Cingular. You can download it from this page. City ofEG Ordinance 19-2019 https://www.codepublishing.com/CA/ElkGrove/#!/ElkGrove23/ElkGrove2394.html#23.94.050 3. Did staff call and speak with attorney Gail Karish from Best, Best and Krieger, LLC regarding the Front Yard Rule and whether a city could adopt it? What questions did you ask Ms. Karish? What answers did she give you? As you may know my comment letter, included in the staff report, gave a quotation from Ms. Karish at a City Council meeting in Culver City in November, 2021. Ms. Karish said, in response to the Mayor's question, that YES the City could adopt the front yard rule or a variation of it and NO, it would not create an effective prohibition. Culver City on November 8, 2021. However when asked by the Mayor whether the City could adopt the Front Yard Rule as in Elk Grove or something similar to it she said yes. Ms. Karish's response was,. 5 "I'm not familiar with the details of that particular rule although I do understand what it um encompasses, or the, the policy behind it. .... Um so, I just want to go back and mention. I did mention in the, the uh, presentation that you can regulate aesthetics. And so to the extent that a rule like a Front Yard Rule, however formulated, ah is directed towards avoiding unsightly installations directly in front of houses um I'm sure um looking at the definition and working on the terminology we could probably come up with a rule that would uh address that concern uh whether its exactly how it was uh phrased in, in Elk Grove or in some other way. Uh you you can regulate aesthetics and so if there are uh you know certain placements within the right of way that would be aesthetically not pleasing you can certainly uh have a standard that would direct , applicants not to place their facilities in front of picture windows, for example, um or in front of a home. And that may well, uh as long as there are other alternatives available in the area that would probably uh pass muster under the FCC regulations and Federal law." (1:20:47 of the City Council meeting video) Ms. Karish also participated in a City Council meeting in Malibu on December 9, 2020 during which the City Council adopted a version of Elk Grove's Front Yard Rule. Ms. Karish advised the City Council on the specific wording of that policy, which was," D. Placements shall not be in front of dwelling units or schools." (City of Malibu Resolution 20-65, section 5.D.) That is on page 800 of the staff report. 4. Mr. Hobbs obviously believes that the Front Yard Rule does not create an effective prohibition. Why does staff disagree with Mr. Jonathan Hobbs? 5. Ms. Karish obviously believes that the Front Yard Rule does not create an effective prohibition. Why does staff disagree with Ms. Gail Karish? 6. The staff report for this Council meeting is 1,143 pages long. It includes a 252 page staff report on agenda item 16, which begins on page 569. The ONLY analysis and discussion of the Front Yard Rule by staff in the staff report is on page 710 and it says: "Some public comments requested a prohibition on SWFs in the ROW adjacent to a residential front yard setback. Staff does not recommend this as it would likely result in a prohibition of 6 service. A better option would to apply the location preferences in Section A to SWFs as described below." Questions about this. 6.a. The Front Yard Rule is not a setback. It does not contain the word "setback". Why did staff insert the word "setback" in its discussion of the Front Yard Rule? 6.b. What is the factual basis for the staffs conclusory statement that, "Staff does not recommend this as it would likely result in a prohibition of service."? Is there any factual basis? 6.c. What is an "effective prohibition" in staffs opinion? This is from the Telecommunications Act of 1996, as we know. Staff does not appear to understand what an effective prohibition is. Please state your understanding of it. 6.d. What is the staffs analysis of the Front Yard Rule as it would apply in Carlsbad? How does this analysis show that the Front Yard Rule would create an effective prohibition? 6.e. Elk Grove has had the Front Yard Rule since August 28, 2019. It has not created an effective prohibition. Why does staff believe it would create an effective prohibition in Carlsbad? 6.f. Malibu has had the Front Yard Rule, a variation of it, since December 9, 2020. It has not created an effective prohibition. Why does staff believe it would create an effective prohibition in Carlsbad? 7. The Front Yard Rule and a policy of location preferences are not mutually exclusive. That is, the City could adopt and use both. Do you agree? If staff believes they are mutually exclusive please explain your analysis and reasoning and provide the supporting facts. 8. At one point about 145 Carlsbad residents signed a petition opposing cell antennas on city streets. I mentioned this petition in my public comments which is on page 798 of the staff report. Irene Tsutsui mentioned the petition in her public comment which is on page 777 of the 7 staff report. She said that 150 -200 residents signed the petition. I recommended that the City find those petitions (page 801) Did you find them? I 9. Recommendation 6 on page 710 of the staff report is for an annual report. The staffs response is. Staff recommends this option. Reporting requirements have been included in other jurisdictions. The annual report could ask for verification that facilities are within FCC limits. The following language could be added to Policy 64: "Prior to July 1 of each calendar year, each Small Wireless Facility provider should provide documentation identifying the location of each facility in the right-of-way within the city; including those approved but not built. I do not see such a requirement in the City's proposed revisions to policy 64. Am I missing it? Is the omission of this requirement intentional? 10. Insurance and indemnification. Ms. Irene Tsutsui recommended that the City include a requirement for insurance for each cell antenna in her letters that begin on page 754 of the staff report. She showed the City of Encinitas policy on page 767. Although the staff report does mention insurance on pages 711 and 727-728 it falls far short of what Ms. Tsutsui has recommended. In the areas of indemnification, the amount of insurance, and also having insurance against injury to the body caused by exposure to cell antenna electromagnetic radiation. What is the reason for this? Why are the insurance dollar amounts so small? Many carriers have insurance policies that exclude coverage for a "pollutant" and define "pollutant" to include electromagnetic radiation, electromagnetic radiation, cell antenna and cell tower radiation, etc. This means that such a policy does not cover injury and damages :from cell 8 antenna radiation. Will the City require an insurance policy that does NOT have such an exclusion? 11. Fire. The insurance amounts in the commercial general liability insurance policy are way too small to cover the possible damage from a fire caused by a cell antenna, $2 million per incident and $4 million aggregate. That could be a few houses. We have seen enormous fires in California in the last few years. Why aren't the insurance amounts higher? The staff report also says, "An option is included in Exhibit 4 to add requirements for insurance and indemnification for WCFs and SWFs not subject to a master license agreement." Where is that? The staff heeds to recommend this to the Council. 12. This is a 3 part question. 12.a. Again on the Front Yard Rule how many City owned street light poles are there in the City of Carlsbad that are NOT "immediately adjacent to or immediately across the street from the front yard of a residential dwelling"? Have you looked at them on a map of Carlsbad? 12.b. Based on the assumption of a 2,000' range of a cell antenna would a carrier be able to provide personal wireless service in the city by locating its cell antennas on some of those street light poles? 12.c. Based on the assumption of a 500 -1,000' range of a cell antenna would a carrier be able to provide personal wireless service in the city by locating its cell antennas on some of those street light poles? 9 City Council Policy No. 64 Update Corey Funk, Associate Planner Community Development Department December 14, 2021 {city of Carlsbad TODAY’S PRESENTATION •Overview and background •Changes to Federal law •Proposed amendments to Policy 64 •Public outreach •Potential modifications to the policy •Recommendation ITEM 16: POLICY 64 UPDATE { City of Carlsbad BACKGROUND •1996 –Telecommunications Act •Preempts local governments •FCC sets RF emissions exposure limits •Sept. 2018 -FCC issued updated regulations •Defines small wireless facilities ITEM 16: POLICY 64 UPDATE { City of Carlsbad BACKGROUND Policy 64 •Adopted on Oct. 2, 2001 •Most recently amended Sept. 26, 2017 •Guides placement, construction and modification of wireless facilities ITEM 16: POLICY 64 UPDATE { City of Carlsbad FEDERAL LAW •Cannot prohibit wireless services •Cannot discriminate between providers •May not prevent completion of a network •Must act on applications in reasonable time ITEM 16: POLICY 64 UPDATE {city of Carlsbad FEDERAL LAW •Cannot regulate based on environmental effects of RF emissions –this applies to: •Policy 64 requirements •Review of wireless facilities –cannot deny permits based on RF emissions ITEM 16: POLICY 64 UPDATE { City of Carlsbad FCC FINAL RULES 18-133 (ADOPTED SEPT. 26, 2018) •New category –small wireless facilities (SWF) •New, faster shot clocks for SWF permits •60 days –on existing facilities •90 days –new facilities •Restricts ability to prohibit facilities •Limits pole attachment fees ITEM 16: POLICY 64 UPDATE { City of Carlsbad Small Wireless Facilities defined •Mounted to structures: •No more than 50 feet tall •No more than 10% taller than adjacent structures •Extends a structure over 50 feet or by more than 10% •Antenna no more than 3 cubic feet •Equipment no more than 28 cubic feet ITEM 16: POLICY 64 UPDATE ( City of Carlsbad CITY DISCRETION Regulation of aesthetics •Reasonable (ie. technically feasible) •Published in advanced (ie. Policy 64) •Regulations must be similar to other utilities ITEM 16: POLICY 64 UPDATE { City of Carlsbad PROPOSED AMENDMENTS TO POLICY 64 •New category for SWFs •SWF permit process –administrative permit •No change for larger facilities (WCFs) o Standards remain o Current process working and includes opportunities for public engagement ITEM 16: POLICY 64 UPDATE { City of Carlsbad Permit process Facility type Location Permit Decision maker Appeals Small wireless facility Public or private property Minor conditional use permit City Planner Planning Commission Right of way Right-of-way permit Engineering Manager City Council PROPOSED AMENDMENTS TO POLICY 64 •Encourage placement on existing or replacement infrastructure before new poles are preferred •Require concealment of antennas and pole mounted equipment ITEM 16: POLICY 64 UPDATE Design guidelines Inside the ROW { City of Carlsbad PROPOSED AMENDMENTS TO POLICY 64 •Accessory equipment •Limits size of pole mounted equipment to 9 cubic feet in residential areas and 17 cubic feet in non-residential areas •Requires undergrounding of remaining equipment ITEM 16: POLICY 64 UPDATE Design guidelines Inside the ROW { City of Carlsbad PROPOSED AMENDMENTS TO POLICY 64 •Height •Max 5 feet above existing support pole •New poles may exceed city streetlight standard (24-26 ft.) by 10 percent ITEM 16: POLICY 64 UPDATE Design guidelines Inside the ROW { City of Carlsbad PUBLIC OUTREACH •Early 2020 -Review of draft by wireless industry: •AT&T •Verizon •Crown Castle •Sprint •Comment topics primarily technical and legal ITEM 16: POLICY 64 UPDATE { City of Carlsbad PUBLIC OUTREACH •June 23, 2021 -City Council Workshop on wireless facilities •Presentation by Tripp May, III of Telecom Law Firm •No public comments received at the meeting ITEM 16: POLICY 64 UPDATE { City of Carlsbad PUBLIC OUTREACH 30 day public review of draft with additional outreach: •3 e-newsletters sent to over 9,600 contacts •Outreach to local school districts •News release and project webpage on city website •5 social media posts with reach of 3,000+ ITEM 16: POLICY 64 UPDATE City of ,Carlsbad O @earl sbadcagov • Nov 2 The city is updati ng guidelines for placement., construction & aestli etics of wireless comm infrastructuire to comply w/ c hanges to federal and state laws related to eel ular technology. Rv p oposed changes and give fe-edback-11/22. loom.ly/PQDEMok #Carlsba #Getlnvolved 0 0 2 { City of Carlsbad PUBLIC OUTREACH – COMMENTS RECEIVED •Review period ended November 22, 2021 •93 total comments received –public and industry •Public -concerns about health effects, locations near residences, fire risk •Industry –technical and legal comments •Responses in staff report, draft and options •Stakeholder meetings ITEM 16: POLICY 64 UPDATE { City of Carlsbad Elk Grove “Front yard rule” (Sec. 23.94.050) •6.In a residential zoning district, … unless the applicant can demonstrate … that such siting limitation will materially inhibit personal wireless service as to a particular small cell wireless communication facility: o No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from, a front yard of any residential dwelling. Elk Grove “Front yard rule” (Sec. 23.94.050) •6.In a residential zoning district, … unless the applicant can demonstrate … that such siting limitation will materially inhibit personal wireless service as to a particular small cell wireless communication facility: o No small cell wireless communication facility shall be located immediately adjacent to, nor immediately across the street from, a front yard of any residential dwelling. Tamarack Ave. & Highland Dr. Tamarack Ave & Highland Dr 0 500 N A D Focus Areas • Residential Building a Signal Cabinet • Non-Residential Building Scale: 1:5,300 • Streetlight D Parcel 77 1 Town Garden Rd. & Village Green Dr. Town Garden Rd & Village Green Dr ; o soo 1000 A D Focus Areas • Residential Building a Signal Cabinet • Non-Residential Building ----===== Feet Scale: 1:5,300 • Streetlight D Parcel Document Path: \\shares\GIS A \Re uestsMarch2015\Com con ev\Plannin \RITM0025577 21 El Fuerte St. & Bolero St. El Fuerte St & Bolero St 0 500 N A D Focus Areas • Residential Building I Signal Cabinet • Non-Residential Building Scale: 1:5,500 • Streetlight D Parcel FRONT YARD RULE Not recommended due to: •Potential prohibition of service o Exceptions needed to prevent prohibition •Better option presented later o More legally defensible •May be difficult to implement ITEM 16: POLICY 64 UPDATE { City of Carlsbad No.Potential Modification to Policy 64 Requestor Recommendation 1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral No.Potential Modification to Policy 64 Requestor Recommendation 1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral 2 Pole type preference:Simplify preference list in C.1.a to the following –existing vs. new poles with a preference for existing poles Industry Not recommended Proposed policy: 1.Existing or replacement streetlight poles 2.Existing or replacement wood utility poles 3.Existing or replacement traffic signal poles 4.New, non-replacement streetlight poles 5.New, non replacement poles (not wood) Request: 1.Existing or replacement poles 2.New, non-replacement poles No.Potential Modification to Policy 64 Requestor Recommendation 1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral 2 Pole type preference:Simplify preference list in C.1.a to the following –existing vs. new poles with a preference for existing poles Industry Not recommended 3 Technical experts:hire outside experts to review application materials, including RF reports, to verify accuracy and compliance with local and FCC requirements Public Recommended No.Potential Modification to Policy 64 Requestor Recommendation 1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral 2 Pole type preference:Simplify preference list in C.1.a to the following –existing vs. new poles with a preference for existing poles Industry Not recommended 3 Technical experts:hire outside experts to review application materials, including RF reports, to verify accuracy and compliance with local and FCC requirements Public Recommended 4 Placement in residential areas:Utilize existing WCF site preference map and expand to apply to SWFs Public Neutral Existing Policy 64 Preferred locations •ROW adjacent to industrial and commercial zones •ROW adjacent to residential zones •Includes Arterial, Arterial Connector, Identity, Employment/Industrial streets •Excludes local/ neighborhood streets PAC!FIC OCEAN +-<-+ Railroad -FREEWAY 0•--i==::::::i1 Miles fi) J.1R&lUesl:!Mard'l2015\COO!Eoo~C>e'<'d'lannlng\00023705 _ 16\Fol~4ROW!IFO -: ,1 -·7 LAKE ' CALAVERA ' I "'1, 02/08/2D 17 L, I I I Exhibit A No.Potential Modification to Policy 64 Requestor Recommendation 1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral 2 Pole type preference:Simplify preference list in C.1.a to the following –existing vs. new poles with a preference for existing poles Industry Not recommended 3 Technical experts:hire outside experts to review application materials, including RF reports, to verify accuracy and compliance with local and FCC requirements Public Recommended 4 Placement in residential areas:Apply the location preferences in Section A to SWFs Public Neutral 5 Annual Reports:Require carriers submit annual reports on all facilities –which could show RF emissions are within FCC limits Public Recommended No.Potential Modification to Policy 64 Requestor Recommendation 1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral 2 Pole type preference:Simplify preference list in C.1.a to the following –existing vs. new poles with a preference for existing poles Industry Not recommended 3 Technical experts:hire outside experts to review application materials, including RF reports, to verify accuracy and compliance with local and FCC requirements Public Recommended 4 Placement in residential areas:Apply the location preferences in Section A to SWFs Public Neutral 5 Annual Reports:Require carriers submit annual reports on all facilities –which could show RF emissions are within FCC limits Public Recommended 6 Noticing Requirements:Add noticing requirement as part SWF applications Public Recommended No.Potential Modification to Policy 64 Requestor Recommendation 1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral 2 Pole type preference:Simplify preference list in C.1.a to the following –existing vs. new poles with a preference for existing poles Industry Not recommended 3 Technical experts:hire outside experts to review application materials, including RF reports, to verify accuracy and compliance with local and FCC requirements Public Recommended 4 Placement in residential areas:Apply the location preferences in Section A to SWFs Public Neutral 5 Annual Reports:Require carriers submit annual reports on all facilities –which could show RF emissions are within FCC limits Public Recommended 6 Noticing Requirements:Add noticing requirement as part SWF applications Public Recommended 7 Change distance for evaluation of other poles:Applicants must consider more preferred pole types within 500 feet. Request would reduce this to 200 feet. Industry Neutral Option 7 •Proposed policy: Consider more preferred pole within 500 feet •Request: Change to 200 feet Proposed policy: 1.Existing or replacement streetlight poles 2.Existing or replacement wood utility poles 3.Existing or replacement traffic signal poles 4.New, non-replacement streetlight poles 5.New, non replacement poles (not wood) No.Potential Modification to Policy 64 Requestor Recommendation 1 Collocation:Allow SWF collocations for up to two facilities on one support pole Staff Neutral 2 Pole type preference:Simplify preference list in C.1.a to the following –existing vs. new poles with a preference for existing poles Industry Not recommended 3 Technical experts:hire outside experts to review application materials, including RF reports, to verify accuracy and compliance with local and FCC requirements Public Recommended 4 Placement in residential areas:Utilize existing WCF site preference map and expand to apply to SWFs Public Neutral 5 Annual Reports:Require carriers submit annual reports on all facilities –which could show RF emissions are within FCC limits Public Recommended 6 Noticing Requirements:Add noticing requirement as part SWF applications Public Recommended 7 Change distance for evaluation of other poles:Applicants must consider more preferred pole types within 500 feet. Request would reduce this to 200 feet. Industry Neutral 8 Insurance and indemnification:Adopt additional insurance and indemnification requirements for applicants not subject to a master license agreement Public Recommended PROPOSED ACTION •Adopt a resolution amending City Council Policy No. 64 as described in the staff report •Consider adding any of the modification options as presented ITEM 16: POLICY 64 UPDATE { City of Carlsbad Conclusion Staff is available for questions {city of Carlsbad Extra slides ITEM 10: SHORTENED TITLE HERE SWF example { City of Carlsbad SWF example SWF example Residential Setback Ta 1m.a1ra1ck Ave & Hig1hland Dr 50'' Buffer 50' Blllffer IRieside1miall Buildina 1111 Non-lR1esidentiall Builct[ng 11 I Panoolll N 'i . o!!!l!l!I: ---50!!11:,o:::::::. ==1=-@o JI\ Feet Residential Setback Ta1m:a1rack Ave & H11g1hland Dr 1,00•· Buffer 100' Buffer IRies.iae1rniial Building • Non-Resiae111tiall Buila-ng 11 I Parcelll N A 1 1]. ----!!!!!!!C:===~Feet. Residential Setback -.. N Town Garden Rd & Village Green Dr 501 Buffer A 0 ■ 50' Buffer !Residential Building -Non-lR1esideritialll Building 11 I If Residential Setback Town Garden IRd & Village Gree:n Dr 1,00' Buffe:r N A 0 1000 ----====:::,Feet 500 100' Buffer IR!esident~all Building -Non-lResidentialll Building II I Parcell .. .. Residential Setback IEI f '1uerte St & !Bolero St so·· Buffer 50' Buffer IRJesidenUall Building -Non-l~esidentiall Building D Parcell N A 0 moo ----=====i F:eet Residential Setback El Fuerte St & Bolero St 100' Buffe:r 100' Buffer Residemiall Building -Non-R,eside111 iall Buila·ng 11 I Parcell N A [I 101][1 ----====::,f;eet