DATE: April 12, 2022
SUBJECT:
Title
WIRELESS COMMUNICATION FACILITIES ON DISTRICT TIDELANDS:
A) ADOPT ORDINANCE TO ADD ARTICLE 15 “WIRELESS COMMUNICATION FACILITIES ON DISTRICT TIDELANDS” TO THE SAN DIEGO UNIFIED PORT DISTRICT CODE
B) ADOPT RESOLUTION RESCINDING BOARD RESOLUTION 2014-227 ADOPTING BOARD OF PORT COMMISSIONERS (BPC) POLICY 772 - GUIDELINES FOR CONDUCTING PROJECT CONSISTENCY REVIEW FOR WIRELESS COMMUNICATION FACILITIES
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EXECUTIVE SUMMARY:
Wireless Communication Facilities (WCF) are the equipment and supporting structures used to provide wireless service. WCF can take a range of forms, from large scale towers, purpose-built to support numerous facilities, to small scale facilities often incorporated into or attached onto existing structures, such as streetlights. Regulation of the placement of WCF is principally a local matter. However, although federal and state law expressly recognize local regulatory authority over siting, they do impose some significant procedural and substantive limits on local authority.
On December 9, 2014, by Resolution No. 2014-227 (Attachment A), the Board of Port Commissioners (Board) adopted BPC Policy No. 772 - Guidelines for Conducting Project Consistency Review for Wireless Communication Facilities (Wireless Guidelines) (Attachment B). The Wireless Guidelines set out high-level objectives and policies regarding WCF on District tidelands, recognizing the importance of WCF in providing reliable wireless service while also determining that it was essential to maintain the high aesthetic and environmental qualities of tidelands, while ensuring that WCF do not conflict with the other users and uses of the District. The Board envisioned the preparation of administrative procedures that would have implemented those high-level objectives and policies established in the Wireless Guidelines. The administrative procedures never materialized due to the small number of complex wireless project submittals in the ensuing years. Consequently, staff have continued to process applications for WCF in accordance with standard District tenant improvement application procedures, with consideration given to the requirements of the Wireless Guidelines.
However, recent changes in law necessitate adoption of more robust WCF application requirements, procedures, and design standards. Among other changes in state and federal law, in 2018, the Federal Communications Commission (FCC) adopted two orders, one banning the imposition of any moratoria on the processing of wireless and wireline applications (meaning the acceptance and processing of applications may not be paused to consider updates to regulations), and another imposing very short timelines or “shot clocks” for processing applications for facilities known as “small cells”, which are lower powered and smaller than typical WCF and are often deployed on streetlights, utility poles or similar infrastructure in the public rights-of-way (ROW). The latter order, as upheld by the Ninth Circuit in 2020, also required aesthetic standards for small cells to be reasonable and published in advance of application submittal.
Recent advancements in wireless technology, namely fifth-generation technology or “5G”, is being rapidly deployed by carriers seeking to improve their network coverage and capacity. 5G capable WCF are often deployed as “small cells”. The District has received an influx of applications and inquiries from carriers proposing the installation of small cells on tidelands, with dozens of potential sites across tidelands for future installations. In addition, there are a number of existing WCF on tidelands for which the District receives regular applications for maintenance and modification.
The increase in recent inquiries for the construction of WCF on tidelands, in conjunction with the existing WCF and anticipated future applications for construction of WCF, warrants adoption of procedures and substantive standards that establish clear guidance for the design, siting, permitting, operation, and modification of WCF. The standards would improve transparency and certainty for applicants and staff, increase efficiency of permitting processes, and ensure WCF are appropriately designed and sited to minimize potential aesthetic and environmental issues, and as well as minimize any potential conflict with other uses, users of tidelands, and obligations under the Coastal Act and Public Trust Doctrine. The District’s adoption of WCF Standards will also allow more effective and efficient compliance with applicable state and federal law.
The draft ordinance, which would amend the San Diego Unified Port District Port Code (Port Code) to add procedural and substantive standards applicable to WCFs (“WCF Standards”) (Attachment C), is consistent with standards adopted by coastal municipalities in California, as well as those approved and enforced by the cities of San Diego, Chula Vista, National City, Coronado, and Imperial Beach (the District’s “Member Cities”). The principles/design standards outlined in the WCF Standards - particularly (1) the requirements for stealth design (integration and concealment to minimize aesthetic impacts) and (2) locational restrictions intended to minimize adverse impacts from WCF construction - are also reflective of standards adopted by other agencies, including the Member Cities.
The draft standards were circulated for review to a variety of stakeholders, including California Coastal Commission (CCC) staff, the wireless providers who inquired about deploying small cells on tidelands, the Port Tenants Association, and the District’s Member Cities. District staff engaged the wireless providers throughout the year-plus drafting process, actively soliciting comments and input on the various drafts provided to them. The iterative process was helpful, and District staff made numerous revisions reflective of industry comments, including refinements following continuance of the docketed February agenda item. However, District staff did not make all changes requested by the wireless providers, with additional revisions to the application requirements, design standards, and location preferences still requested. District staff believe that the draft WCF Standards appropriately balance the District’s regulatory duties and commitments to stakeholders. In addition, for the reasons outlined below in the regulatory setting discussion, the Office of the General Counsel, along with outside counsel, believe that the draft WCF Standards are legally defensible and consistent with applicable law.
The District’s discretion is also preserved to the extent permitted. Furthermore, it is important to highlight that the WCF Standards do not prohibit service on tidelands or establish “service area” preference (notwithstanding representations to the contrary). The WCF Standards are structured to ensure the orderly development of wireless services on tidelands by (1) requiring appropriate design and (2) identifying areas that are most appropriate for the location of WCF. However, the WCF Standards include significant inherent flexibility to ensure that wireless service will be available across tidelands, including (1) expressly allowing WCF in less preferred locations as necessary to provide effective service and (2) an exception process that allows deviation from the design standards in specific, enumerated circumstances.
District staff recommends adoption of the WCF Standards, which is the culmination of close coordination with stakeholders, diligent research of precedent, effective ordinances, and communication and feedback with the Office of the General Counsel. The WCF Standards, as drafted, will ensure compliance with applicable law and orderly and proper installation of WCF on tidelands in a manner that minimizes aesthetic and environmental impacts to the maximum extent possible while also reflecting the unique obligations of the Coastal Act and Public Trust Doctrine (including protection of valuable coastal resources and preservation of public access and enjoyment of the tidelands). The WCF Standards, if approved, would supersede the existing Wireless Guidelines and Board Resolution No. 2014-227 adopting BPC Policy No. 772 should be rescinded.
Staff recommends that the Board adopt an ordinance amending the Port Code to add standards regarding WCF, and that the Board adopt a resolution rescinding BPC Policy No. 772 (Wireless Guidelines).
RECOMMENDATION:
Recommendation
Wireless Communication Facilities on District Tidelands:
A) Adopt ordinance to add Article 15 “Wireless Communication Facilities on District Tidelands” to the San Diego Unified Port District Code
B) Adopt resolution rescinding Board Resolution 2014-227 adopting Board of Port Commissioners Policy 772 - Guidelines for Conducting Project Consistency Review for Wireless Communication Facilities
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FISCAL IMPACT:
No direct fiscal impact to the District would result from the Code amendment or rescinding of the Wireless Guidelines.
Compass Strategic Goals:
This agenda item supports the following Strategic Goal(s).
• A Port that the public understands and trusts.
• A vibrant waterfront destination where residents and visitors converge.
• A Port with a comprehensive vision for Port land and water uses integrated to regional plans.
DISCUSSION:
Background
WCF are the antennas, support structures, and other equipment associated with the provision of personal wireless service, commonly referred to as consumer cellphone service. WCF can take many forms, ranging from large-scale cell towers, built to accommodate the collocation of multiple antennas, to small-scale stand-alone facilities consisting of a single antenna, often attached to an existing structure, such as a streetlight or utility pole. With the rapid uptake in the use of consumer wireless devices, WCF have proliferated over the last decade. There are existing installations across tidelands, including three 50-foot-tall cell towers disguised as faux trees, as well as dozens of smaller scale installations on tenant leaseholds, mostly disguised through screening or architectural integration into existing structures. These existing WCF are frequently modified and upgraded, with a total of 12 applications submitted to the District in 2021.
The placement of WCF is subject to federal, state, and local law, with both federal and state law granting telecommunications providers rights (particularly to placements in certain areas, namely public rights-of-way). The Telecommunications Act of 1996 (TCA), for instance, prohibits local agencies from regulating (implement a state or local statute or regulation) in a manner that “may prohibit or have the effect of prohibiting” telecommunication and wireless services. California Public Utilities Code (PUC) Section 7901 grants to “telephone” companies a franchise (right) to construct lines along and upon public roads and highways throughout the state.”
However, the rights granted to wireless providers by the TCA and PUC § 7901 are not limitless, and both federal and state law expressly recognize and preserve local agency WCF regulatory authority, including with respect to design and locational standards. The TCA preserved local zoning authority while recognizing some specific procedural and substantive limitations on traditional authority to regulate wireless facilities.1 Likewise, the California Supreme Court has explained that PUC § 7901 does not divest a local agency of the power to regulate utilities or establish aesthetic conditions for land use.2
Federally, the Federal Communications Commission (FCC) is authorized to adopt rules and orders clarifying and implementing the TCA. The FCC has acted in such capacity numerous times, most recently in 2018 when it adopted a declaratory ruling and order - In the Matter of Accelerating Wireless Broadband Deployment By Removing Barriers to Infrastructure Investment (FCC 18-133) (the “Small Cell Order”) imposed new limits on local regulations of small cell deployments.3 The Small Cell Order clarified when a local government regulation of small cell facilities may prohibit or have the “effect of prohibiting” the provision of wireless service from a Small Cell Wireless Facility. Among other things, the Small Cell Order (1) established timeframes within which agencies must act after receiving a small cell application (commonly referred to as “Shot Clocks”), (2) clarified that local agencies may charge fees only consistent with their reasonable costs, and (3) concluded that local agency aesthetic regulation of small cells must be (a) reasonable, (b) no more burdensome than those applied to other types of infrastructure deployments, and (c) objective and published in advance. Each of these findings, imposed by the FCC as local agency limits, would apply only when an agency acts as a regulator.
The Small Cell Order was challenged by a substantial number of public agencies, including numerous agencies in California and the League of California Cities. The resulting Ninth Circuit Court of Appeals decision - City of Portland v. United States - largely upheld that FCC’s Small Cell Order, except with respect to the limitations on local agency authority to regulate small cells based on aesthetics. The Ninth Circuit rejected the FCC’s requirements that aesthetic regulations be objective and no more burdensome than those applied to other types of infrastructure deployments, concluding that “subjective” aesthetic regulations, such as requiring installation to conform to the character of the neighborhood do not violate the TCA. Thus, local agencies may regulate small cells on the basis of aesthetics, considering any reasonable criteria that are published in advance. These may be both objective and subjective criteria. The parameters and requirements of the WCF Standards reflect this authority, requiring WCF to be stealth (integrated and concealed) and consistent with the surrounding natural and built environment.
It should be noted that the limitations imposed by the TCA apply when an agency is acting as a regulator, not when it is acting in a proprietary capacity. California state law generally recognizes that agencies charged with management of trust lands - as is the District - manage such lands in trust and in its proprietary capacity. Thus, the District operates in such capacity (that of a private, market participant) when it operates as a landlord and tidelands trustee. The caveats to this general proposition are that, as noted earlier, PUC Section 7901 grants a state franchise to use ROW for wireless placements, and for purposes of federal law, even actions by an agency in its proprietary capacity with respect to wireless regulations in the (ROW) are likewise subject to the federal limitations of the Small Cell Order. As such, the TCA and Small Cell Order would generally be applicable to WCF installations in the public ROW. The WCF Standards reflect this distinction, defining the term “ROW” consistent with federal and state law (and consistent with how that term is applied by various agencies in California).
For District tidelands outside of the ROW, the District would retain the rights of a traditional, private landlord, including the ability to elect not to authorize a WCF. This is consistent with the practices of other agencies, including the City of San Diego. City of San Diego Council Policy No. 600-43 explains that for city-owned property “the City has dual roles as property owner and government regulator.” For WCF “proposed on property owned by the City, the City’s Real Estate Assets Department [READ] is responsible for the negotiation and administration of sales and leases, including property used and managed by the City’s Parks and Recreation Department, Water Department, or other Controlling Departments of the City.” This approach is consistent with other municipalities throughout California, including those with coastal areas.
The Draft WCF Standards
As discussed above, and reflective of the change in applicable regulations, wireless technology has continued to develop rapidly, with the current iteration of wireless technology referred to as the “Fifth Generation” (commonly called “5G”). 5G is designed to have greater bandwidth than predecessor technology, allowing for faster wireless service speeds or “capacity” for users. Some 5G technology is implemented through small cells and requires the installation of substantial numbers of facilities to achieve the coverage and density required by carriers.
Small cells are low powered, compact facilities, designed to provide in-building and outdoor wireless service. Some frequencies used for 5G services produce radio waves that cannot travel long distances or handle obstructions due to their high frequency. Consequently, small cells are designed to be located at close intervals, in unobstructed locations, and closer to the ground and users than traditional macro facilities.
Evidencing the uptick in anticipated deployments of small cells, the District has received proposals for installation of small cells on tidelands, as well as clear expressions of intent from the carriers to submit proposals to locate hundreds of small cells on tidelands. This expected increase in applications for small cells on tidelands is consistent with similar increases in other jurisdictions. The City of San Diego, for instance, approved 626 and 439 small cell facilities in 2020 and 2021, respectively.
The WCF Standards, as drafted, identify design and locational standards applicable to all WCF, including small cells, that ensure (1) applicants provide standardized information to enable staff to efficiently process applications consistent with enumerated standards, and (2) WCF are appropriately designed and sited to minimize aesthetic and environmental impacts (with particular recognition of the unique coastal resources prevalent on tidelands), and as well as minimize any potential conflict with other uses, users of tidelands, and obligations under the Coastal Act and Public Trust Doctrine.
To accomplish these purposes, the WCF Standards establish the following:
1. Application Requirements: The WCF Standards enumerate specific application requirements that must be submitted by any carrier proposing to locate a WCF on tidelands. The detailed application requirements will assist staff’s processing of such applications, particularly with respect to locational issues and consideration of proposed designs, and reflect applicable state and federal law requirements.
2. Least Visually Intrusive and Stealth Design: The WCF Standards establish that all WCF proposed for location on tidelands must be, to the extent feasible, (1) designed in the least visible, disruptive means, (2) utilize the smallest, least visually intrusive design, and (3) be a Stealth Facility. A Stealth Facility is defined as one that “utilizes concealment techniques that substantively screen the WCF from public view or integrate the WCF with the surrounding natural or built environment such that, given the particular context, visual detection of the WCF by the average, untrained observer is difficult. The WCF Standards also outline “principles” that aid in designing a Stealth Facility, including: (1) matching the color, texture, materials, and aesthetics of the structure to which they are attached, (2) prioritizing integration into and concealment within the structure, as opposed to visible mounting, (3) concealing cabling within the structure, and (4) requiring vertical elements to replicate the design, diameter, and proportion of the existing pole.4
The WCF Standards note that these design standards are to be achieved to the maximum extent feasible. District staff understands that technology may not always (or feasibly) achieve a design that is completely invisible or hidden from public view. As such, the WCF Standards do not mandate achievement of such a result, but instead requires designs that best integrate and conceal proposed WCF, to the maximum extent technologically feasible.5
It should also be noted that the “stealth” design principles outlined in the draft WCF Standards are consistent with other jurisdictions, including the District’s Member Cities.
City of San Diego Municipal Code Section 141.0420(e) provides that WCF shall utilize “the smallest, least visually intrusive antennas, components, and other necessary” associated equipment. It likewise states that an applicant shall “use all reasonable means to conceal or minimize the visual impact … through integration and installation….” The City’s Land Development Manual Wireless Communication Facility (WCF) Guidelines, which is applicable to all WCF, including small cells, explains that “the least visible solution is best” and that all WCF “should be integrated/concealed to the maximum extent possible.” with respect to small cells, the Land Development Manual recognizes that technology will advance and that as advancements proceed the principles of maximum integration and concealment shall be observed. It should be noted that these standards have not substantively chilled or prohibited the construction of wireless facilities in the City of San Diego which, as discussed above, approved 1,000+ small cells over the last two years.
The City of Coronado City Council Policy No. 29, Wireless Communication Facilities, likewise requires that WCF be stealth design and that WCF “shall be located where least visible and least disruptive….” It states that all “aspects of a WCF, including antennas, supports, equipment, wiring, and screening materials shall exhibit stealth design techniques to visually blend into the background of where they are mounted or be fully integrated into the supporting structure, unless they are pole mounted facilities located in alleys.” The City Council Policy also reserves the right to “review the appropriateness of the existing facility’s technology and may require the applicant to document that the WCF maintains the technology that is the smallest, most efficient, and least visible….”
The City of Chula Vista also requires that (1) all WCF shall be stealth facilities, (2) equipment facilities be the smallest dimensions that technology allows, (3) colors and materials minimize visibility, and (4) the location, design, and required screening be compatible with the character of the surrounding neighborhood.6 Chapter 19.89 of the Chula Vista Municipal Code defines stealth facility to include a WCF “that is designed to blend into the surrounding environment, and is visually unobtrusive.”
The City of Imperial Beach and the City of National City both mandate that WCF minimize visual impacts. National City Municipal Code Section 18.30.220(E), for instance, provides development criteria for all WCF and requires that the “facility shall be as small as possible and the minimum height necessary….” The City of National City ROW Infrastructure Policy also provides that all WCF “exterior surfaces shall be painted, colored and/or wrapped in flat, nonreflective hues that match the underlying support structure or blend with the surrounding environment.” City of Imperial Beach Municipal Code Section 19.90.070 states that “the visual impact of [WCF] must be minimized to the maximum extent feasible, taking into consideration technological requirements, through the use of placement, screening, camouflage and landscaping, so that the facility is compatible with adjacent uses … and other site characteristics.”
3. Locational Preferences: The WCF Standards, recognizing that tidelands present unique coastal resources, prioritize the location of WCF in areas that would have the least impact on such unique coastal resources. Generally, the public ROWs in wholly commercial and industrial areas, the interior and rooftops of existing buildings (so long as the WCF is not visible from publicly accessible areas), and all locations not identified as less preferred (Tier 2 and 3 locations) are considered Tier 1 locations and are encouraged.7 It would be less preferrable (Tier 2) for WCF to locate in parks, open spaces, or areas of recreation, on areas of piers used exclusively for commercial or industrial purposes, within 150 feet of an historic structure, and between the first inland public ROW and San Diego Bay or the Pacific Ocean. It would be least preferrable (Tier 3) for WCF to locate in areas of high visual quality, such as on pier areas that are publicly accessible or in pier areas that would obstruct views of San Diego Bay or the Pacific Ocean, on or within 30 feet of any Promenades, within View Corridors and Vista Areas, and within 100 feet of sensitive habitat areas. CCC staff had significant interest in the locational preferences and provided substantial feedback which was incorporated, including that areas between San Diego Bay or the Pacific Ocean and the first inland public ROW paralleling San Diego Bay be considered Tier 2.
These locational standards establish preference and are not a prohibition on locating in non-Tier 1 areas. The standards are intended to direct applicants to look first at deploying WCF facilities in specific areas as a means to lessen impacts to important tidelands and coastal resources. A carrier may locate within a Tier 2 or 3 area provided the carrier demonstrates that no there is no more preferred location (i.e., either Tier 1 or Tier 2) within the target service area of the proposed facility (the area within which the facility would provide service). If a carrier’s self-defined area of service is such that there are no Tier 1 locations available, and such fact is demonstrated with evidence, the carrier may locate in a Tier 2 location or a Tier 3 location (provided no Tier 2 location is available).
The carriers assert that areas where people congregate, such as parks, piers, and promenades should not be areas “where improved wireless coverage is less preferred” by the District.8 This is a mischaracterization of the locational standards, which identify preference for placement of WCF, not service. The locational preferences do not establish areas of preference for wireless service, and District staff disagrees with characterization of them as such. The role of locational preferences is to identify areas of greater coastal/resource sensitivity and to direct WCF placement (as opposed to service) to less-sensitive areas. However, the standards also acknowledge that placements in less-preferred locations would be warranted when placements in Tier 1 or Tier 2 locations are not able to provide service to the carrier’s self-defined target area. Thus, the standards simply request that the wireless providers submit evidence that there are no available more-preferred locations before proposing to locate in Tier 2 or Tier 3. District staff believes the locational preferences strike an important balance between (1) ensuring WCF are constructed in the most appropriate, least impactful manner and (2) allowing the provision of wireless services across tidelands.
Finally, the locational requirements are consistent with wireless standards of other jurisdictions, including the District’s Member Cities, which establishes locational guidelines (preference) for the location of WCF.
The City of Coronado’s Council Policy provides a list of location preferences ordered from the most to least preferred, directing WCF installations to less visible, sensitive areas such as alleys, non-residential areas, and public ROWs.9 Moreover, the Council Policy also identifies “discouraged locations” and notes that WCF “shall not be permitted on or within the rights-of-way of Ocean Boulevard, Glorietta Boulevard, Silver Strand, Coronado Cays Boulevard…” or within the Orange Avenue Specific Plan Area10 unless the “applicant demonstrates to the City Council’s satisfaction that no other location is feasible….”
The City of National City likewise imposes locational standards that directs WCF to areas of less sensitivity. National City Municipal Code Section 18.30.220 states that the city’s regulations are intended to, among other things, “encourage siting in preferred locations to minimize aesthetic impacts and minimize intrusion of these uses into residential areas.” For instance, Section 18.30.220 is protective of scenic views, stating that WCF “should be located and designed to avoid blocking and/or substantially altering scenic views.” Section 10 of City Council Policy No. 506, which governs ROW installations, explains that it establishes locational preferences to “better assist applicants and decision-makers understand and respond to the community’s aesthetic preferences and values….” It specifies that the “most preferred locations are those on arterial streets, outside of any residential district, Morgan Square or Brick Row.” A WCF may be approved for a less-preferred area provided “the applicant demonstrates by clear and convincing evidence … that either (1) no more preferred locations or structures exist within 350 feet … or (2) any more preferred locations within 350 feet … would be technically infeasible….”11
Similarly, the City of San Diego establishes preferred locations through both its municipal code and Council Policy No. 600-43. The Land Development Manual Wireless Communication Facility (WCF) Guidelines explains that Council Policy 600-43 “establishes a hierarchy from most preferred location to least preferred location, encouraging the placement of WCFs in commercial and industrial zones.” The most preferred areas “have lower decision processes” while less-preferred areas are reviewed under more rigorous decision processes.
The City of Chula Vista also has enumerated preferred locations. For WCF proposed on city property, including the ROW, City of Chula Vista policies and procedures specify that applicants are “strongly encouraged” to locate a WCF on certain locations. If an applicant proposes a WCF in a less-preferred location, the applicant “should include documentation … substantiating why a Category 1 Location was not utilized.” To prove, documentation must include “a narrative justification and search ring map(s)….”
The design and locational standards, as discussed above, include inherent flexibility that account for (1) service goals and (2) technological feasibility, among other things. To provide further flexibility, when warranted, the WCF Standards also include an “exception” process that allows for deviation from the design and siting requirements if an applicant provides evidence supporting any of the following findings:
1. For a proposed WCF, compliance with the requirements of the WCF Standards is technically infeasible and would effectively prohibit the provision of wireless service, or otherwise violate applicable laws or regulations.
2. The proposed WCF meets the intent of the standards of the WCF Standards with respect to the protection of coastal resources and complies the with standards to the maximum extent technically feasible.
3. That minor non-compliance, as determined by the District, would either result in (a) no adverse impact to coastal resources, the public, or other uses and users of tidelands or (b) provides other benefits.
The decision to grant or deny an exception would be at the sole discretion of the Executive Director of the District, or his or her designee. The exception process provides additional flexibility and ensures compliance with applicable state and federal law. The carriers argue that the exception process does not provide clear “findings” for when an exception may be granted by the District. District staff disagrees. The exception process, as outlined above, is clearly defined and identifies those specific circumstances (when the required enumerated findings can be made) that warrant limited deviation from the requirements of the WCF Standards.
As the above illustrates, the WCF Standards would provide a clear framework for staff, carriers, and other stakeholders, ensuring applications for WCF are processed in a predictable and efficient manner. In addition, the WCF Standards would encourage the development of WCF that are designed to a standard that maintains the high aesthetic and environmental qualities of the built and natural environments across tidelands, while minimizing any potential conflict with other uses and users.
Stakeholder Outreach
Staff have coordinated with stakeholders to gather feedback on the District’s draft standards. In addition to internal coordination with other District departments, Development Services and Real Estate staff met with representatives of AT&T, Verizon, and Crown Castle approximately 40 times, both individually and collectively, over the past 20 months; with CCC staff on August 27, 2020, and February 3 and November 3, 2021; and with the Port Tenants Association on March 29, 2021 and February 1, 2022. In addition, these stakeholders, as well as each of the District’s Member Cities, have had the opportunity to review the draft WCF Standards and provide feedback.
The carriers have had the most comments on the draft WCF Standards, submitting formal written comments on March 23, March 26, June 11, August 24, September 20, and November 23, 2021, and January 21 and 31, and February 4 and 23, 2022. These written comments are in addition to the numerous oral comments received by staff at meetings with the wireless providers. Through the conversations with the carriers, District staff made numerous changes to the individual requirements of the WCF Standards to accommodate much of their input, including with respect to application requirements, location preferences, undergrounding, maximum antenna and equipment size, pole dimensions, and height limits.
Since continuation of the item (agenda item no. 2021-0059) at the February Board meeting, staff conducted additional extensive coordination with the carriers, including three meetings and two rounds of written review of the draft WCF Standards. To respond to continued carrier concerns, District staff made additional revisions to the WCF Standards, including: (1) incorporating wording from the carriers regarding undergrounding, (2) expanding the maximum volumetric size requirements for small cells, (3) incorporating specific reference to the FCC Shot Clocks, (4) specifying that application denials must be in writing, when required by law, and (5) modifying the locational preferences to (a) expand Tier 1 to include WCF located wholly within buildings or on building rooftops and not visible from public spaces (including buildings within Tiers 2 and 3) and (b) expand Tier 2 to include WCF located on pier areas that are wholly commercial or industrial uses, provided the WCF would not obstruct public views. The WCF Standards were also revised to specify that WCF serving emergency or governmental agencies are exempt from the WCF Standards.
However, District staff did not make all changes requested by the wireless providers and there remain some outstanding disagreements. First, the carriers proposed revisions that would limit exercise proprietary authority reserved to the District, including through application of the Shot Clocks to all locations across tidelands, regardless of property rights, and deletion of all references to the “proprietary capacity” from the WCF Standards. These changes are not required by law and would greatly limit the District’s discretion.
Second, the carriers asserted that the District should expand the maximum volumetric standards for small cell facilities to be consistent with the FCC Small Cell Order (approximately 31 cubic feet). That change is unnecessary. The Small Cell Order defines a small cell facility for purposes of identifying what regulations apply, but it is not an entitlement to build to that scale in all instances. Moreover, the volumetric maximums identified the WCF Standards are directly reflective of feedback received from the carriers, and which was increased recently based on specific comments from AT&T (and the carriers’ example facilities presented to us).
Third, the carriers sought to revise the WCF Standards to incorporate concepts of “commercial feasibility” and “commercial efficiency”, as opposed to technically feasible, as a standard for determining achieving the WCF Standards’ design requirements. The concept of “technical feasibility” as a standard is widely accepted and used by agencies throughout the country, and is referenced by the FCC and federal circuit courts. No additional changes are necessary. District staff continues to believe that the draft WCF Standards appropriately balance the District’s regulatory duties and commitments to stakeholders. In addition, for the reasons outlined above in the regulatory setting discussion, the Office of the General Counsel, along with outside counsel, believe that the draft WCF Standards are legally defensible and consistent with applicable law, and that it preserves the District’s discretion where it can be preserved.
In addition, the wireless providers have indicated that while they believe the draft WCF standards are not in compliance with the FCC orders, they will work in good faith with District staff. District staff have likewise reassured the wireless providers that our intention is to process future applications in a pragmatic manner, consistent with historical and current practice, and as required by and consistent with applicable law.
Next Steps
If approved by the Board, the ordinance for the WCF Standards would take effect 30 days after approval. During this time, staff would establish or amend any existing internal processes for the implementation of the WCF Standards. In order to avoid redundancy or inconsistency, if the ordinance for the WCF Standards is adopted by the Board, staff recommends that Resolution 2014-227 adopting BPC Policy No. 772 (Wireless Guidelines) be rescinded.
General Counsel’s Comments:
The General Counsel’s Office has reviewed the agenda sheet and attachments, as presented to it, and approves them as to form and legality.
Environmental Review:
The District, as lead agency under CEQA, has determined that this ordinance regulating WCF and resolution rescinding the Wireless Guidelines are not subject to CEQA review under State CEQA Guidelines sections 15061(b)(3) and alternatively, that the Ordinance is categorically exempt from environmental review under CEQA pursuant to State CEQA Guidelines sections 15301 (existing facilities), 15302 (replacement or reconstruction), 15303 (new construction of small structures), and 15311 (accessory structures). The District’s approval of the WCF ordinance and recission of the Wireless Guidelines does not approve or otherwise authorize any individual wireless facility or other improvement. Any WCF project proposed within the District’s jurisdiction must comply with all laws and regulations, including, without limitation, the California Environmental Quality Act (“CEQA”) (California Public Resource Code § 21000, et seq.) and the California Coastal Act (Public Resource Code § 30000 et seq.). To the extent future projects may be permitted pursuant to the WCF Standards, such projects would be minor and small structure, often within or attached to existing structures.
Specifically, the District has determined the Board actions are exempt from CEQA pursuant to State CEQA Guidelines section 15061(b)(3) because there is no possibility that it would have a significant effect on the environment. The Board actions do not authorize any development or project that could result in a physical environmental impact and would result in no change in the environment or land use. Furthermore, the WCF Standards would ensure that future WCF projects are designed and constructed in an appropriate manner, in consideration of, among other things, the aesthetic and environmental qualities of District tidelands.
The District further finds that all components of the proposed WCF Standards are categorically exempt under CEQA and satisfy the criteria for one or more exemptions. Specifically, the WCF Standards are exempt from CEQA review under Class 1 as it would allow for the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures or facilities involving negligible or no expansion of use. (State CEQA Guidelines, § 15301.)
This WCF Standards are also exempt under Class 2 as it allows for the replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. (State CEQA Guidelines, § 15302.)
This WCF Standards are also exempt under Class 3 as it allows for the construction and location of limited numbers of new, small facilities or structures (State CEQA Guidelines, § 15303) and Class 11 as it allows for the construction, or replacement of minor structures accessory to (appurtenant to) existing commercial, industrial, or institutional facilities (State CEQA Guidelines, § 15311.)
The District further finds that none of the exceptions to the categorical exemptions under State CEQA Guidelines section 15300.2 applies to the District’s approvals.
The proposed Board actions are consistent with the Port Act and Public Trust doctrine. The proposed Board actions establish regulations for the application for and design of WCF. The proposed Board actions are consistent with Section 35 of the Port Act which allows the Board to do all acts necessary and convenient for the exercise of its powers. The proposed Board actions are also consistent with Section 87 of the Port Act, which allows for the use of tidelands for structures incidental or convenient for the promotion of commercial uses and commerce on District Tidelands, the construction, reconstruction, repair, and maintenance of highways, streets, roadways, bridges, belt line railroads, parking facilities, power, telephone, telegraph or cable lines or landings, water and gas pipelines, and all other transportation and utility facilities or betterments incidental, necessary, or convenient for the promotion and accommodation of any of the uses set forth in Section 87. WCF as accommodated under the WCF Standards would promote commerce activities and commerce and the public’s use of the tidelands, and would physically consist of the construction and reconstruction of power and telephone lines, and utility facilities and betterments both necessary and convenient for the promotion and accommodation of uses set forth in Section 87. Therefore, the proposed Board actions are consistent with the Port Act and Public Trust Doctrine.
The proposed Board actions do not allow for “development,” as defined in Section 30106 of the California Coastal Act, or “new development,” pursuant to Section 1.a. of the District’s Coastal Development Permit (CDP) Regulations because, the adoption of the WCF Standards would not result in, without limitation, a physical change, change in use or increase the intensity of uses. Therefore, issuance of a CDP or exclusion is not required. However, the District’s projects require processing under the District’s CDP Regulations, including any future WCF within the District’s jurisdiction. The Board’s adoption of the WCF Standards in no way limits the exercise of the District’s discretion under the District’s CDP Regulations, as expressly recognized in the WCF Standards, and if applications for WCF are submitted, they will undergo review under the District’s CDP Regulations. That review may result in the issuance of a Coastal Act exclusion or a CDP.
Diversity Equity and Inclusion Program:
This agenda sheet has no direct DEI impact on District contracting or workforce reporting at this time.
PREPARED BY:
Cameron McLeod
Assistant Asset Manager, Real Estate
Michelle Chan
Program Manager, Development Services
Christopher Burt
Deputy General Counsel V, Office of the General Counsel
Attachments:
Attachment A: Resolution No. 2014-227
Attachment B: BPC Policy No. 772: Guidelines for Conducting Project Consistency Review for Wireless Communication Facilities
Attachment C: Draft Amendment to the Port Code
1 City of Portland v. United States (9th Cir. 2020) 969 F.3d 1020, 1033.
2 T-Mobile West LLC v. City and County of San Francisco (2019) 6 Cal.5th 1107, 1118.
3 In 2018, the FCC also adopted a declaratory ruling and order that banned moratoria on the processing of wireline and wireless applications, meaning the acceptance and processing of applications may not be paused to consider updates to regulations. That ruling and order is entitled In the Matter of Accelerating Wireline Broadband Deployment By Removing Barriers to Infrastructure Investment; In the Matter of Accelerating Wireless Broadband Deployment By Removing Barriers to Infrastructure Investment (FCC 18-111)
4 The establishment of design standards that mandate stealth facilities is also important with respect to retaining maximum authority to review applications to modify WCF once approved. Wireless providers may submit Eligible Facilities Requests (EFRs) pursuant to the Spectrum Act of 2012. The Spectrum Act requires qualifying EFRs to be approved, and grants to carriers a broadly defined right to modify existing WCF, subject to the limitation that the EFR may not “substantially change” the physical dimensions of the WCF. (47 USC § 1455(a).) The FCC rules implementing the Spectrum Act provide that a “substantial change” to an existing facility, which would take it out of the realm of an EFR, includes a modification that would defeat the concealment elements of the eligible support structure. The FCC recently clarified that concealment in this context essentially means that the facility is designed to look like something other than a wireless facility, hence the importance of requiring stealth designs. The Spectrum Act does not supersede or abridge an agency’s authority when acting in a proprietary capacity.
5 The WCF Standards’ incorporation of feasibility is also responsive to federal requirements. An agency’s imposition of an aesthetic requirement that is “not technically feasible would constitute an effective prohibition of service….” (City of Portland v. United States (9th Cir. 2020) 969 F.3d 1020, 1042.) Importantly, as discussed above, the limitations of the TCA apply to an agency acting as a regulator, not when acting in a proprietary capacity.
6 City of Chula Vista Wireless Telecommunication Facilities Permit (WTF) on Public Property Policies & Procedures.
7 Including ROWs within the Tier 1 category is consistent with the Small Cell Order, in which the FCC noted that the carriers “the public ROW and government-owned structures within such ROW are frequently relied upon to supply services for the benefit of the public, and are often the best-situated locations for the deployment of wireless facilities.” (Small Cell Order at ¶ 97.)
8 Judith Fairweather January 31, 2022 letter on behalf of AT&T.
9 The Council Policy identifies, in order of priority, location in (1) in alleys ROWs within or abutting non-residential zones, (2) on city-owned parcels or alley ROWs (including residential zones), (3) inside non-alley ROWs in residential zones, (4) locations outside of the public ROW in non-residential zones, and finally (5) in residential zones.
10 The Orange Avenue Specific Plan Area runs the entire length of Orange Avenue and includes parcels beyond just the ROW. It also includes the blocks immediately abutting Coronado Landing (between 1st and 2nd Streets and Orange Avenue and B Avenue) and Centennial Park.
11 It is important to note that City Council Policy No. 506 applies to public ROWs, meaning the 350-foot radius would not capture other less-preferred, non-ROW areas. A proposed non-ROW National City installation would be subject to more rigorous review pursuant to the National City Municipal Code. The WCF Guidelines prioritize locating WCF in District ROWs.