Vista planners wants to make it easier, or in some cases harder, to operate cell towers and antennas.
On March 21, the planning commission held a public hearing to discuss two proposed zoning ordinances (see here and here) that would serve as development standards where currently, few exist. "This code expands our authority to ask for some additional things we don't always ask for," said Community Development Director, John Conley, who led the presentation.
It also gives the city more control over locations, and adds specific design standards for reviewing new projects. Attorney Tripp May explained the challenges cities face due to federal and state laws. Under the federal Telecommunications Act of 1996, cities can't ban wireless installs. But "they can still impose rights of way management rules" for certain local concerns like viewsheds.
According to a staff report, Vista now regulates wireless facilities as “radio and television transmitters” or “satellite antennas,” with rules that address only setbacks and height. When smaller equipment exceeds the height limit for the zone, a minor use permit or a special use permit is required.
Under the proposed rules, location would be key in determining the type of permit needed, followed by the type of installation (on a building or free-standing). Preferred and discouraged locations would be specified to help decide if projects need a minor use permit or the stricter special use permit.
"We're confident that the restrictions in terms of preferred & discouraged locations will provide us a little more discretion in where these facilities will go," Conley said. First choice is the public right of way, or on city owned property. Next best would be the Vista business park or industrial and commercial zones. Why would city-owned structures be preferred over commercial zones? Conley said staff felt the small cell facilities, disseminated within the community, would be a better fit than the larger scale ones you might see on a commercial property.
The "small cells" that would proliferate cover a city block, while Vista's macro-cell palm trees serve about a mile, he said. "Even though we may see more of these, they fill in capacity gaps." Attorney May added that "state law says we can't say no to facilities in the right of way." So, to encourage them to be placed on existing equipment, they ordered the preferences so that was the best first option to pick.
"We want to play nice," said commissioner Cramer. Discouraged locations, requiring a special use permit, are designated open space areas, parts of downtown like the historic district, and residential zones. Vista's current zoning standards apply only to towers and antennas on private property; not those proposed in the public right of way. The city now uses licensing agreements (and is paid a fee) for placements on city-owned light poles.
"Yet, this regulatory method is limited," the staff report says, especially when it comes to proposals for public poles not owned by the city, like poles owned by San Diego Gas and Electric
"Right of way is a hot topic in telecommunications now," said May. The networks for almost all the major carriers are built out, and the big issue is how they perform. Another reason planners want to tweak the code is to keep up with major changes in federal and state laws that have further hacked local control over wireless facilities. If the city exceeds the timeline to review an application, for instance, the carrier may be granted an automatic permit approval. And if an area has a significant service gap, cities can't ban a facility even if it clashes with local zoning code.
One of the main reasons residents often oppose cell towers and antennas is fear of radiofrequency exposure — but again, federal law blocks cities from regulating them based on health concerns. "FCC sets the maximum permissible exposure level — if a facility is within it, that's the end of inquiry for local government," May said.
The new code gives the city a hair more wiggle room. For projects requiring a minor use permit, the new rules would add radiofrequency compliance reports, along with things like photosimulations and acoustical analyses — items Conley said can be asked for in the permit process, "but aren't specific in our code until now."
Commissioner Rosaler asked who conducts the radiofrequency compliance reports. "Do we have consultants that review that and let us know it's in compliance or not — do we have that capability in house?"
"We haven't had expert review," Conley said, "really because they haven't raised the level of controversy that might require that." Commissioner Garretson raised a topic that has sparked controversy in other cities
"I notice that public schools are not listed here; could you explain that?" "We...have seen a propensity for locations at public schools because the city hasn't taken zoning authority in some of those situations, and let the school board decide, so a lot of the carriers have figured that out," Conley said.
They are going straight to public school locations, so right now the school board approves those. "We don't necessarily think that's the best location for these types of things."
There were no public speakers, and the commission voted unanimously to recommend adoption of the ordinance. The Vista City Council will hold a public hearing on Apr 11 to formally consider the proposed regulations.