HomeMy WebLinkAboutReso 90-2011 RESOLUTION NO. 90 -2011
CITY COUNCIL, CITY OF SOUTH SAN FRANCISCO, STATE OF CALIFORNIA
A RESOLUTION CONCURRING WITH THE 2010 -2011 SAN
MATEO COUNTY CIVIL GRAND JURY REPORT OF MAY 19,
2011, TITLED "CELL TOWERS: PUBLIC OPPOSITION AND
REVENUE SOURCE"
WHEREAS, City of South San Francisco ( "City ") staff has received and reviewed the 2010-
2011 San Mateo County Civil Grand Jury ( "Grand Jury ") Report titled, "Cell Towers: Public
Opposition and Revenue Source," attached hereto as Exhibit A;" and
WHEREAS, staff recommends that the City Council adopt a resolution concurring with the
findings, conclusions and recommendations of the "Cell Towers: Public Opposition and Revenue
Source" Report ( "Cell Towers Report"), filed on May 19, 2011; and
WHEREAS, the Grand Jury Cell Towers Report focused on answering the following two
questions: (1) "Do cities and the County of San Mateo have effective governing polices and /or
ordinances for cell tower installations that provide the public with a clear understanding of how
applicants are adjudicated ? ", and (2) "Are cell tower installations a source of revenue for cities and
the County "; and
WHEREAS, the 2010 -2011 Grand Jury asks cities to report back to the Grand Jury by August
17, 2011 with comments on the Cell Towers Report's findings, conclusions and recommendations.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of South San
Francisco that the City of South San Francisco hereby concurs with the findings, resolutions and
recommendations of the 2010 -2011 Grand Jury Cell Towers Report.
BE IT FURTHER RESOLVED by the City Council of the City of South San Francisco, that
the City of South San Francisco, with respect to the Cell Towers Report recommendations, "has
implemented or had them in place."
* * * * *
I hereby certify that the foregoing Resolution was regularly introduced and adopted by the
City Council of the City of South San Francisco at a regular meeting held on the 27 day of July
2011 by the following vote:
AYES: Councilmembers Mark Addiego, Pedro Gonzalez, and Karyl Matsumoto,
Vice Mayor Richard A. Garbarino and Mayor Kevin Mullin
NOES: None
ABSTAIN: None
ABSENT: None
ATT ST !, �, • /v4
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EXHIBIT A
San Mateo Civil Grand Jury Report
Cell Towers: Public Opposition and Revenue Source
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i N 44° _
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Cell Towers:
Public Opposition and Revenue Source
Issues I Background I Findings ( Conclusions I Recommendations I Responses I Attachments
Issues
Do cities and the County of San Mateo (the County) have effective governing policies and/or
ordinances for cell tower installations that provide the public with a clear understanding of how
applications are adjudicated ? Are cell tower installations a source of revenue for cities and the
County?
Summary
There are more than 450 cell tower installations in San Mateo County. Although people want
reliable cell phone reception, community opposition to cell towers is common. The County and
18 of 20 cities reported public opposition to a cell tower application within the past 5 years.
The County and 12 of 20 cities generate varying amounts of revenue from cell tower
installations, primarily from the leasing of public lands. Although it may not pose a large
source of revenue, cities that are not already taking advantage of lease agreements as a steady
revenue source should negotiate such agreements with service providers in the future. In
addition, any new leases should require service providers to maintain existing structures, remove
unused or obsolete equipment, and replace structures with newer low profile structures as they
become available.
Improving information available to the public and providing clearer communications can
improve public response to future cell tower installation applications.
Background
While there is universal public demand for improved and more reliable cell phone transmissions,
there exists a "not in my backyard" approach to having cell tower installations in close proximity
to residences or commercial establishments. This statement is based on survey data and the
number of incidences of public opposition recorded in local news articles or communications
collected by members of the grand jury over a seven -month period in Fiscal Year 2010 -2011. At
least 8 of the 20 cities in San Mateo County had newspaper articles or communications of overt
public opposition to cell tower applications during this timeframe.
l For purposes of this report, "cell towers" refers to any wireless communications facility or structure erected for
purposes of transmission on either public or private property.
Only two cities, Colma and East Palo Alto, did not report incidences of public opposition.
3 Belmont, Brisbane, Burlingame, Foster City, Hillsborough, Menlo Park, Millbrae, Redwood City, San Bruno, San
Carlos, San Mateo, South San Francisco.
4 Daly City, Half Moon Bay, Menlo Park, Pacifica, Portola Valley, San Bruno, San Carlos, South San Francisco.
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Public opposition occurs most often from individuals living in close proximity to a proposed cell
tower site. Individuals or homeowner associations may make their own case to the city or form
new groups for the purpose of galvanizing opposition. These new groups typically exist only
until a final decision is rendered, making it impractical for the grand jury to interview
representatives.
Data shows opposition is typically based on perceived health risks such as electromagnetic
radiation. To date such concern is regarded as scientifically unproven and has not been a legal
basis for permit denial in accordance with provisions in the (federal) Telecommunications Act of
1996.
An appellate court ruling in 2009 supported the decision by the City of Palos Verdes Estates in
Southern California to deny the installation of cell towers on the basis of aesthetics alone. Service
providers had argued that there must be a compelling "substantive" reason to deny an application or
it must be approved in favor of communication expansion. The appellate court ruled that aesthetics
were a valid reason to deny a cell tower application, so long as the denial does not cause a
significant gap in service coverage that cannot feasibly be addressed by alternatives.
Federal law governs some cell tower decision - making authority. For example, each application
by a service provider to install a cell tower must be considered on an individual basis, and a
government entity cannot favor one telecommunications provider over another under protections
provided by the Telecommunications Act of 1996. Thus opposition is targeted to a specific
application for cell tower installations.
Cell phone vendors compete for improved range, clarity of reception, and a reduction of dropped
calls. Some cities report that cell tower installations have been increasing over the past five
years to meet these demands.
Investigation
The 2011 San Mateo County Civil Grand Jury collected information about cell towers via a
survey sent to city managers and planning directors, or their counterparts, in the County and each
of the 20 cities (see Attachment).
Online research was conducted, including a review of excerpts of the Telecommunications Act
of 1996 and the United States Court of Appeals, Ninth Circuit decision in the Sprint PCS Assets
PCS LP v. City of Palos Verdes Estates.
Newspaper articles and communications from neighborhood groups regarding cell tower
placement were collected and reviewed.
5 Peter M. Degnan et al, The Telecommunications Act of 1996: §704 of the Act and Protections Afforded the
Telecommunications Provider in the Facilities Siting Context, May 18, 1999, pps. 7 - 8.
6 No. 05 56106 — Sprint PCS Assets PCS LP v. City of Palos Verdes Estates, argued and submitted July 6, 2009 —
October 14, 2009.
7 Degnan et al., op. cit., p. 5.
8 Belmont, Brisbane, Daly City, East Palo Alto, Foster City, Menlo Park, Portola Valley, Redwood City, San Carlos,
South San Francisco.
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Discussion
The County and 15 of 20 cities in San Mateo County have ordinances in place related to cell
tower installation. These ordinances vary considerably in scope and comprehensiveness.
Whether or not the County or a particular city has an ordinance governing cell tower installations
does not seem to insulate it from public opposition. Service providers must make application to
the County or cities whether or not there is an ordinance in place.
The County and 6 of 20 cities reported public opposition to cell tower applications occurred
more frequently than once a year. The primary opposition came from individuals living in
close proximity to the proposed installation site. The most frequent reason cited for such
opposition was public safety such as perceived health risks from electromagnetic radiation,
although it is not a valid basis on which the County or city can deny a permit. Visual or aesthetic
impacts, which are a valid issue upon which to base a decision regarding denial or modification
of a cell tower application, were less frequently mentioned.
In the County and 7 of 20 cities, service providers have withdrawn applications for cell tower
installation due to public opposition. In 2008 (referred to as the "2007 decision "), a service
provider filed a lawsuit against the County because of a denied cell tower renewal application
subsequent to an appeal filed by residents which overturned the initial approval. There have
been no incidences of litigation reported by cities because an application for cell tower
installation was denied.
The County and 12 of 20 cities generate revenue from cell tower installations, primarily from the
leasing of public lands. In most cases, revenue is deposited to the general fund with no specific
use indicated. The revenue is paid by service providers in addition to application or permit fees.
Costs to file an application vary widely, with many cities requiring a deposit toward staff time.
Some cities do not require service providers to maintain cell towers and/or remove installations
when they are no longer used, become obsolete, or the permit expires. These provisions are
important because wireless technology continues to innovate and may in the future be replaced
by devices significantly smaller with improved range.
9 Belmont, Brisbane, Daly City, East Palo Alto, Hillsborough, Menlo Park, Millbrae, Pacifica, Portola Valley,
Redwood City, San Bruno, San Carlos, San Mateo, South San Francisco, Woodside.
1° Belmont, Daly City, Millbrae, Pacifica, Redwood City, San Carlos.
11 Sprint PCS Assets PCS LP v. City of Palos Verdes Estates, op. cit.
12 Belmont, Burlingame, Daly City, Hillsborough, Pacifica, San Bruno, San Carlos.
13 Litigation pending ; case no. CV 11 0056 Sprint v. County of San Mateo et al, amended complaint filed Jan. 6,
2011, U.S. District Court of Appeal, Northern District of CA.
14 Belmont, Brisbane, Burlingame, Foster City, Hillsborough, Menlo Park, Millbrae, Redwood City, San Bruno, San
Carlos, San Mateo, San Francisco.
15 Svensson, Peter AP Technology Writer, Wireless Advances Could Mean No More Cell Towers, February 12,
2011, and Bloomberg Businessweek, Alcatel- Lucent's Tiny Cell Tower, February 28 -March 6, 2011.
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Findings
The 2011 San Mateo County Civil Grand Jury finds that:
1. There is no apparent correlation between the existence of policies and /or ordinances
regarding cell towers and the likelihood of public resistance to an application.
2. Locating applicable cell tower ordinances and policies on County and city websites is
cumbersome.
3. Federal law precludes the use of perceived health risk as a basis for denying an
application"'; visual or aesthetic impacts are a valid reason to deny or modify an
application, so long as the denial does not cause a significant gap in service coverage that
cannot feasibly be addressed by alternatives."
4. Some cities do not require service providers to maintain cell towers and /or remove
installations when they are no longer used, become obsolete, or the permit expires (see
Attachment).
5. The County and all cities have varying filing and processing fees for processing cell tower
applications (see Attachment).
6. The County and 12 of 20 cities generate widely varying amounts of revenue through cell
tower lease agreements (see Attachment).'
7. Five cities which have cell towers on public property are not charging service providers
for land use three cities do not currently have cell towers located on public property.
Conclusions
The 2011 San Mateo County Civil Grand Jury concludes that:
The County and most cities have governing policies and /or ordinances that prescribe cell tower
installations. Having an ordinance in place does not reduce the likelihood of public opposition to
a cell tower application.
The County and cities need to balance public desire for improved wireless reception with local
concerns regarding health, aesthetics, and property values while recognizing the rights of service
providers under federal law.
16 Telecommunications Act of 1996. .
17 No. 05 - 56106 — Sprint PCS Assets PCS LP v. City of Palos Verdes Estates, op. cit.
18 Belmont, Brisbane, Burlingame, Foster City, Hillsborough, Menlo Park, Millbrae, Redwood City, San Bruno, San
Carlos, San Mateo, South San Francisco.
19 Daly City, East Palo Alto, Half Moon Bay, Portola Valley, and Woodside have cell towers on public property and
do not receive revenue for land use.
20 Atherton, Colma, and Pacifica do not currently have cell towers located on public property.
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The County and cities which have cell towers located on public property should establish lease
agreements with service providers to generate revenue to the general fund.
The County and cities have varying cell tower application fees for recouping staff costs in
processing these often complex applications and use permits.
There is no standard way of ensuring that cell towers are maintained or removed when they are
no longer used or the permit expires. Cities which do not already have maintenance and removal
provisions required of service providers may be responsible for cell tower maintenance and /or
removal on public property.
Educating the public about applicable governmental regulations may help to alleviate some of
the angst generated by cell tower installations.
Recommendations
The 2011 San Mateo County Civil Grand Jury recommends to the County Board of Supervisors
and the City Councils of all cities in San Mateo County the following:
1. Review and revise, if needed, the current fee structure to recoup staff costs for
processing cell tower applications;
2. Negotiate lease agreements for future installations on public land that generate
revenue or other tangible benefit to the community;
3. Add cell tower maintenance and removal provisions if they are not already included
in existing ordinances and lease agreements;
4. Require that all new lease agreements contain a provision requiring service providers
to install newer technology as it becomes commercially available to reduce the
footprint of cell towers; and
5. Develop a webpage within County and city websites which clearly posts local
ordinances, policies and procedures as well as federal regulations related to cell tower
installations.
The Grand Jury further recommends the City Councils of Daly City, East Palo Alto, Half Moon
Bay, Portola Valley, and Woodside pursue new or amended leases for existing cell towers on
public property that are not currently generating revenue or other community benefits.
S
Cell Tower Cities and County Survey Responses
Number of Number of Does the city Does the city's Is there a Is there a Have you had What is the current cost to Does the city If yes, what is It yes, how is
cell towers cell towers have codes codelordinanc provision provision applications file an application or permit generate revenue the a average revenue
on private on public or ordinances a cover both requiring requiring withdrawn by for a cell tower structure? paid by service annual generated by
property property governing public and service service service providers in addition revenue paid cell towers
cell towers? private providers to providers to providers due to application or by service used by the
property? maintain cell remove cell to public permit fees from cell providers to city?
towers? towers it resistance? towers Installations? the city that Is
obsolete or a generated
use permit from cell
ends? towers?
i
Atherton 0 ,819
NO N/A N/A NO NO NO N/A N'A
piste $2,000 deposit - $3,919 total
Fees:
.comptea project fee $13,272
loopositl
YES. Public -new :Ana/ruction engineering lee YES Thera era leases tar
reviews Iron 5007 $2,691 or 51.704 (equipment change Depended td
cell lowers placed on
Belmont t9 7 YES YES NO YES 2009, now wahine only) public des Unknown general fund for a
properties (parks,
for withdrawal .fire tee lot plan check $269 variety of uses
from applicant. - Environmental review lee 5547 city hen, No
- county recording fee $50
3rd party reviewer RF exposure
study (deposit during review).
$851 administrative permit. Deposited to
Brisbane 1$ 3 YES YES NO YES NO $2,8es- planning commission use YES, land base $1,50C month general fund for a
perms variety of uses
i YES. Onty In instances 525,000 (based
Depends upon level of review and ware city owned property on one Dap d la
1
Burlinga Unknown (npam Unknown
Unknown NO NIA NO NO VE5, once (201b) cost of installation mlr wed ter the installation on 9a^oralfund fora
instalation pubkc property variety of uses
Dolma 4 0 NO N7v I NO YES NO Minor use permit$905 NO N N::a
Daly City 4S t S YES YES r YES YES YES, once (2010) 53,700 NO N: ;4 1!'A
YES standard � Stag teyel•mirar cell tower cost -
EPA Unknown Unknown YES YES YES condition of NO $667. Conditional use perm's-major NO N/A NIA
approval cell lower cosl•$3.862
The City receives
approumalely
ArrNteclural review 5200, Use 596,000 pot year Deposited in
Poster City 26 6 NO N/A YES NO NO
permit 5200 deposit Applicant pays YES in revenue from general Luca for a
for cast to process the leasing of 4 variety of uses
ails fo/ cell
towers
2 1 YES as a condition YES as a condition $1,300 depose (actual nest
HMS NO WA of COP approval of COP approval NO determined by Mme required to NO WA N/A
complete procassing)
The town collects
0 11 YES, ante YES, it irises of public $162 ;120 Deposited to
Hillsborough YES YES YES YES (2008107) 52,500 propeny isneeded sites (51,930 general a
iety of uses
momhry per ate.) war
YES_ Currently only one $2.500/monin. for
39 9 NO, private Use permit deport es 51,600 sult}ac1 si in Ina Public ROW ic the one can see DerOmle
Menlo Park YES NO NO NO to :lowly bang rates for actual stale wa ept b a lease subject b a lease Oanera Led a
properly only time offended €oward the project agreement with the City. agreement varreN of uses
roomy 14 5 $7,000 on private properly. $2.000 YES. Leases for facilities 8 r ear per Deposited 40
Millbrae YES YES YES YES NO on propeny on city property acnry on city general fur's for a
pre mny variety of uses
No, private YES, on more
Pacifica 40 0 YES property only YES YES Than one oecaabn $3.750 _ NO N..: NA
$420/leo:
Portals Valley 5 S YES YES YES YES NO 97,505/ NO N/A N/A
Deposit
YES. One cell installaflon
ll propeny> 1/4 acre $5k deposit, s is on say land: a monthly Slit - $7.866 per Depos6e0 a
or yearly lease 18 paid to march
Redwood City Unknown Unknown YES YES YES NO NO 114 acre 51k for Arch. Permit, $2.630 germ"' """`" for a
tat use permit variety of uses
the oily
YES, Only if built on city Deposited to
San Bruce Yea, on more (hen Use Permit'.. $2,145 524,000 per year
Unknown Unknown YES YES YES YES one occasion Admin Approval: $1,320 owned parcel (eq., water an averaq. genera! furl for a
tank, pant, etc..} - variety of uses
$2,050•
YES 9 3 YES, on more YES. Lend lease of city $3,00Wmo Deposited to
SanSanCanoe YES YES YES than one occasion 55,860.00 propeny general fund for a
$24,000- variety of uses
536.0001yr.
If in parks, used for
YES. a in city parks or Tha sky {s . Park a Rec
Deposit amount of 52.079: could
ROW on oily purposes. It on cfly
Ben Mateo Unknown Unknown YES not specific YES NO NC NO ultimo/01y be more based on staff equipmoM polea,a lease negotiahng its pole, used for
Nan is negotiated Na lease Public Wares
purposes
YES. Revell. ranges Ap Deposited to
SSF Naxos 3a Apples 6 YES YES YES YES NO Use permit application • $4,070 from $1,50043,000 or 576900Myear general fund for a
month per site verily of uses
Woodside 8 8 YES YES YES YES NO $1,790 for GUP taen Striding permit NO N/A NIA
Revenue for
YES. Adminsirelive
review by the Planning Admm$ka5va
$ 10 i
and Building Dept is ns reriaws allocated b
VES, on more orcasinonty required. The Planning and . Ise Planning and
71 42 YES Vanes - generally —us ,
576 County BoMdinp Dept. hul
County YES YES YES than one occasion tllrq Dept,
y (Real Property) my) Unknown amount Revenue to the
also Meehan revenue to t he,astray. Coumyunk as
prom cavern located an to how
County Property allocated
6