Wireless Ordinance for the Treasure Valley

Local NewsZoningWireless Laws
Written By Jennifer Knopf

How to most effectively regulate small (5G) and large (4G) cell facilities in accordance with local, state and federal laws. According to the FCC Order, local governments cannot pass laws that prohibit small cell deployment. There are, however, certain regulations that a local government
can pursue. One power maintained by local governments, is the regulations of aesthetics, including spacing/separation requirements. Here are examples of what other cities across the nation have done to take control over Small Cell Facility placement.

1. Minimum Distances between (SCF’s) Small Cell Facilities

  1. 1,000 Foot Setback from other small cell installations: Every effort shall be made to locate small cell installations no less than 1,000 feet away from the Permittee’s or any Lessee’s nearest other small cell installation, or within 1,000 feet of any permanent residential dwelling. (ART Ordinance) Setbacks Between Small Cells:Calabasas, Petaluma, Fairfax, Mill Valley, and San Ramon (all California) require 1,000 feet between SCFs. (Boulder, CO Recommendation-Boulder Colorado Small Cell Ordinance Legal Opinion Policy Report). (Los Altos Ordinance)

2. Setbacks from Residences and Other Specific Places

1000 Foot Setback from schools, hospitals and homes. The setback for Calabasas, CA is 1,000 feet (Bolder, CO Report), 500 ft Setback from residencies (Petaluma). See engineering article

  1. Setback from roads or property lines: No new tower shall be constructed without a setback from the tower’s base of at least 1.5 times the tower height to a public or private road and at least 2.5 times the tower height to the nearest property line. Scenic America Model

  2. Fall Zone: The proposed small cell installation shall have an adequate fall zone to minimize the possibility of damage or injury resulting from pole collapse or failure, ice fall or debris fall, and to avoid or minimize all other impacts upon adjoining property

  3. Drip line of tree/heritage trees: No facility shall be permitted to be installed in the drip line of any tree in the right-of-way…. (Old-Palos Verdes)– 15ft in Los Altos (Los Altos Ordinance)

3. Preferred & Disfavored Locations

  1. Disfavored Locations: In addition to residential areas, designate areas where cell towers are disfavored and not permitted, i.e. near schools, residential areas, city buildings, sensitive habitats, on ridge lines, public parks, Historic Overlay Districts, in open spaces or where they are favored i.e. commercial zoning areas, industrial zoning areas. (Boulder, CO Report Boulder Colorado Small Cell Ordinance Legal Opinion Policy Report). (Los Altos Ordinance) Every effort should be made to avoid placement of small cell installations in close proximity to residences, particularly from sleeping and living areas. Viable and defendable setbacks will vary based on zoning. (ART ordinance) (Los Altos Ordinance)

  2. Prohibited Zones for Cell Facilities: Prohibits small cell telecommunication facilities in residential zones and multi-family zoning districts (Mill Valley) (Los Altos Ordinance)

  3. Personal wireless facilities in excess of thirty five feet (35′) in height and not contained within a building shall not be permitted within the “restricted area for telecommunications towers” as shown on exhibit A located at the end of this section. However, notwithstanding the foregoing, personal wireless facilities may be allowed within the restricted area provided they are camouflaged or concealed, not readily identifiable as such, and designed to be aesthetically compatible with existing and proposed uses within the restricted area. (Eagle – 8-3-5-S-13-a)

  4. Order of Preference – Location. The order of preference for the location of small cell installations in the Town, from most preferred to least preferred, is:

    1. Industrial zone

    2. Commercial zone

    3. Mixed commercial and Residential Zone. Residential zone (ART Ordinance and New Palos Verdes). (Los Altos Ordinance)

4. Public Safety and Welfare

  1. FCC Clause: Have a clause voiding the agreement or requiring it modification in the event of a regulatory change (overturning the FCC Order), according to a report by Next Century Cities

  2. Americans with Disabilities Act (ADA) Compliance. All facilities shall be in compliance with the Americans with Disabilities Act (ADA). (New Palos Verdes)

  3. Radio Frequency Data Report Requirement: Have a thorough radio frequency data requirement as part of the submittal for consultants. For all applications require that both an RF Compliance Report signed by a registered Professional Engineer, and a supporting RF Data Request Form as Attachment A as provided is mandatory. RF DATA SHEET (can be an attached form to be filled out and submitted with application).

  4. Random Testing for RF Compliance: The Town shall have the right to employ a qualified RF engineer to conduct an annual random and unannounced test of the Permittee’s small cell wireless installations located within the Town to certify their compliance with all FCC radio-frequency emission limits as they pertain to exposure to the general public. The reasonable cost of such tests shall be paid by the Permittee. (ART Ordinance)

  5. Violation of Compliance Notification: In the event that such independent tests reveal that any small cell installation or installations owned or operated by Permittee or its Lessees, singularly or in the aggregate, is emitting RF radiation in excess of FCC exposure guidelines as they pertain to the general public, the Town shall notify the Permittee and all residents living within 1500 feet of the small cell installation(s) of the violation, and the Permittee shall have forty-eight (48) hours to bring the small cell installation(s) into compliance. Failure to bring the small cell installation(s) into compliance shall result in the forfeiture of all or part of the Compliance Bond, and the Town shall have the right to require the removal of such installation(s), as the Town in its sole discretion may determine is in the public interest. (ART Ordinance)

  6. Proof of NEPA Review:Provide information showing this installation has received any required review (e.g., environmental assessment and review) by the FCC pursuant to the National Environmental Policy Act (NEPA), or is exempt from such requirements. If exempt, please state what the basis is for the exemption and provide proof, including supporting documents that establish that this installation meets such exemption. Recent Court Ruling

  7. Independent Expert. The director is authorized to retain on behalf of the city an independent, qualified consultant to review any application for a permit for a wireless telecommunications facility. The review is intended to be a review of technical aspects of the proposed wireless telecommunications facility and shall address any or all of the following: xxxx (Old- Palos Verdes)

  8. Annual Recertification: Each year, commencing on the first anniversary of the issuance of the permit, the Permittee shall submit to the Town an affidavit which shall list all active small cell wireless installations it owns within the Town by location, certifying that (1) each active small cell installation is covered by liability insurance in the amount of $2,000,000 per installation, naming the Town as additional insured; and (2) each active installation has been inspected for safety and found to be in sound working condition and in compliance with all federal safety regulations concerning RF exposure limits. (ART Ordinance)

  9. Non- acceptance of Applications: Where such annual re-certification has not been properly or timely submitted, or equipment no longer in use has not been removed within the required 30-day period, no further applications for small cell wireless installations will be accepted by the Town until such time as the annual re-certification has been submitted and all fees and fines paid. (ART ordinance)

  10. General Liability Insurance $ 2-5 million to protect the City: The permittee shall obtain, pay for and maintain, in full force and effect until the facility approved by the permit is removed in its entirety from the public right-of-way, an insurance policy or policies of commercial general liability insurance, with minimum limits of Two Million Dollars ($2,000,000) for each occurrence and Four Million Dollars ($4,000,000) in the aggregate, that fully protects the city from claims and suits for bodily injury and property damage. The insurance must name the city and its elected and appointed council members, boards, commissions, officers, officials, agents, consultants, employees and volunteers as additional named insureds, be issued by an insurer admitted in the State of California with a rating of at least a A:VII in the latest edition of A.M. Best’s Insurance Guide, and include an endorsement providing that the policies cannot be canceled or reduced except with thirty (30) days prior written notice to the city, except for cancellation due to nonpayment of premium…. (Old- Palos Verdes)

5. Other Aesthetic Requirements

  1. Undergrounding: All equipment not to be installed on or inside the pole must be located underground, flush to the ground, within three (3) feet of the utility pole. Each installation is to have its own dedicated power source to be installed and metered separately.

  2. Painting of attachments to match mounting structures;

  3. Use of shrouds, stealth techniques, or other camouflage;

  4. Flush-mounting of antennas;

  5. Placement of equipment in the pole base rather than on the outside of the pole;

  6. Consistency with the character of historic neighborhoods;

  7. Minimum spacing between attachments;” and

  8. Aesthetic standards for residential neighborhoods, including “1000 foot minimum setback from dwellings, parks, or playgrounds and minimum setback from dwellings, parks, or playgrounds; maximum structure heights; or limitations on the use of small, decorative structures as mounting locations.” (Boulder, CO Report)

  9. Maintain that all wireless facilities both small cells and cell towers require a Conditional Use Permit by the planning department followed by an encroachment permit which is reopened every 3 to 5 years- Sonoma City, California

  10. Significant Gap in coverage: Maintain requirement for significant gap in coverage to be identified for approval of both small cells and cell towers. Note: Telecom still needs to show this.

  11. Least Intrusive Methods: Maintain requirement for the least intrusive methods to fill the gap for both small cells and cell towers. A justification study which includes the rationale for selecting the proposed use; if applicable, a detailed explanation of the coverage gap that the proposed use would serve; and how the proposed use is the least intrusive means for the applicant to provide wireless service. Said study shall include all existing structures and/or alternative sites evaluated for potential installation of the proposed facility and why said alternatives are not a viable option. Note: Telecom still needs to follow this. (Old-Palos Verdes)

  12. Require full-size mock-up of proposed SCFs and other pertinent information in order to adequately consider the same potential impacts. It also may want to adopt Larkspur’s approach to require construction drawings, a site survey, and photo simulations. (Boulder, CO Report )

6. Public Notification

  1. Public notifications of planning commission hearings; Either in newspaper, website no less than 14 days prior to the date of the hearing.

  2. Notification of all property owners within 1,000 feet of the proposed installation within X timeframe

  3. Community Meeting: The applicant would be required to hold a community meeting at least two weeks prior to the planning commission hearing on the use permit. (San Anselmo)

Best Resource for Policy Makers

Treasure Valley Wireless Ordinances

Cities with Strong Wireless Ordinances

  • Calabasas, California Ordinance

  • Permits required for both small and large cell towers

  • Least intrusive location and evidence of significant gap in coverage

  • Visual simulations

  • FCC compliance affidavit

  • Noise study

  • Preferred/most appropriate location

  • Undergrounding of equipment

  • If coverage is for out of town applicant must address why it cannot be located elsewhere

  • Independent expert review

  • Performance bond requirement

  • Restricted locations-No towers in residential zone, Old Town overlay, Historic designation, Open Space zone, park or playground, or ridgeline

  • Fairfax, California- elements of Fairfax Ordinance passed Sept 26, 2018. They have also been studying alternative fiberoptic networksNo differential between large or small cell towers

  • Conditional Use Permits required for all cell towers

  • Order of preference for both configuration and location listed

  • No speculative facilities

  • Poles no less than 18 feet rom roadway

  • 1500 foot separation between small cell towers

  • Pole height limits between 20 to 35 feet

  • Compliance with the Americans with Disabilities Act-

  • Allow reasonable access and not interfere with public utilities, easements or rights of way

  • Town to retain a consultant to perform annual testing, demonstrating compliance with current regulatory and operational standards and do not pose an undue electrical risk

  • The permittee assumes full liability for damage or injury caused to any person or property by the facility

  • Indemnification clause for the city

  • Relocation or removal clause

  • Voluntary pre-submittal conference

  • Non voluntary submission of permit in person

  • Mill Valley, California– (strong) Elements of Mill Valley Ordinance Sept 6, 2018

  • Preference for locations in commercial districts

  • Prohibits small cell telecommunication facilities in residential zones and multi-family zoning districts

  • 1500 foot buffer between small cell facilities

  • Adheres to the Americans for Disability Act

  • Underground (flush to the ground, within three (3) feet of the utility pole), all ground-mounted equipment not installed inside the pole.

  • Connect to an existing utility pole that can support its weight.

  • Encourages co-location on existing towers

  • City Council used “Urgency Ordinance” to immediately enact regulations that effect public health and safety.

  • The Town of Hempstead passed a protective ordinance in 2013 which

  • Requires a special use permit for cell towers that gives preferential placement of cell towers in historically sensitive areas around residences, schools, houses of worship, day-care centers that goes in preferential order from existing towers to industrial areas to non residential use (other) to business to residential property as the least desirable.

  • The special use permit includes a “balloon test” whereby a brightly colored ballon is placed at the height of the tower to identify visual intrusion

  • Limited the height of towers to below which lighting was required

  • Allows the town to hire consultants and do inspections

  • Set a fee schedule of $500 per pole

  • Requires a 4 foot warning sign on the pole

  • Sonoma City, California– elements of Sonoma City Ordinance– Nov 5, 2018

  • Conditional Use Permit Required of All Cell Towers: All wireless facilities including Small Cells are subject to a use permit by the planning commission(other than co-location)

  • Least Intrusive Site: Location in the least intrusive area

  • RF Exposure compliance report

  • Notice to all property owners within 500 feet of proposed wireless facility

  • 1500 Foot Separation of Small Cells: Pole mounted WTF are no less than 1500 feet apart

  • Residential Ban on Small Cells: No WTF permitted in a residential district

  • Noise Restrictions: Report analyzing acoustic levels

  • Suisun, California – Elements of Suisun City Ordinance April 2, 2019 https://www.suisun.com/small-cells/

  • 1,500 feet minimum between each Small Cell facility

  • 500 Foot Buffer from Residence: No Small Cell shall be within 500 feet of any residence.

  • Annual inspections and reporting

  • Compliance with ADA: All facilities permitted pursuant to this chapter shall comply with the American with Disabilities Act.

  • Owner Consent: The permittee shall not move, alter, temporarily relocate, change, or interfere with any existing structure, improvement, or property without the prior consent of the owner of that structure, improvement, or property

  • The City at all times reserves the right to take any action it deems necessary, in its sole discretion, to repair, maintain, alter, or improve the sites

  • RF Exposure Compliance: The permittee or its representative must conduct on-site post installation RF emissions testing to demonstrate actual compliance with the FCC Office of Engineering and Technology Bulletin 65 RF emissions safety rules for general population/uncontrolled RF exposure in all sectors.

  • Attorney’s Fees: The permittee shall be required to pay any and all costs of such legal action

FCC Links

Fiber-Optic Networks

Expand current Fiber-optic networks to “All Locations” that will enable data transmissions that are much faster, more reliable, safe for humans and other living organisms, and far more secure from cyber and physical attack when compared to any wireless network which relies on sending data via pulsed, microwave radiation (Wi-Fi, 4G/LTE, and 5G). In addition, fiber-optic cables use only a fraction of the energy required by wireless networks. 

Jennifer Knopf
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