ORDNC-2022-2 : An Ordinance Relative to Small Wireless Facilities Installation in the Public Right Of Way

Transcript (~30 min @ 21:59)

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▶ 21:51 Leila Migliorelli: Great, so this ordinance will be brought forward to the full council, not tonight, but at our following meeting with a recommendation for passage. City Solicitor, you can stay on for the next item, which is ordinance 2022-2, an ordinance relative to small wireless facilities installation in the public right of way, sponsored by Councillor Rob Stewart. And I know DPW Director Elena Proakis-Ellis is here with us tonight, too, to answer questions, but while she logs in, I'll let Councillor Stewart lead off on this.

▶ 22:27 Robb Stewart: Thank you, Madam Chair. So, through the Chair, I bring this ordinance to the Council for consideration based on feedback from multiple constituents, some of which you've heard from this evening. I've worked closely with the city solicitor, Ms. Phillips, and the head of the DPW, Ms. Farai-Cazales, to address the concerns that have been raised by these constituents. As a little bit of background, the Telecommunications Act of 1996 is a far-reaching federal law and provides limited control by either state or municipalities, such as ourselves, To govern the installation of this wireless technology, there is room, however, for controls to be put in place, which will ensure adherence. To the requirements as permitted by this act, this ordinance provides guidance to the city and process for the telecommunications companies. And their contractors to abide by these regulations. Some examples include communication to the residents. the permitable distance, the required paperwork, insurance, which can be provided a little bit more in detail by the City Solicitor and Ms. Ferreira-Casales. I do want to thank both Ms. Ferreira-Casales as well as Ms. Phillips. They have put a lot of work into this, spent a lot of time in both researching and with practical experience on both sides in suggesting upon how we construct this ordinance. I also do want to thank the residents who have provided a lot of input and data as well as expressing their concerns. It's helped quite a bit in having these constructive conversations, and I look forward to the feedback based on some of the input that we've received from both parties. And I ask for support of this ordinance and look forward to the input of the committee. Thank you, Madam Chair.

▶ 24:26 Leila Migliorelli: Councillor Stewart, Solicitor Phillips or Director Ellis, which one of you would like to speak first?

▶ 24:35 Speaker 5: The Chair, I'm happy to do that. So, thank you, Councillor Stewart. So, I can provide some additional background to the extent it might be helpful to some Councillors that may or may not be familiar with the small wireless world in the telecommunications industry. So, this ordinance, like many around the country and around the state of Massachusetts, stems from an FCC order that happened in September 2018. That was the subject of an appeal to the Ninth Circuit and then to the Supreme Court of the United States. It was denied at the Supreme Court of the United States. The Ninth Circuit changed a few items of the order. So I'm going to outline just generally for all of you at the beginning what our limitations are, what that order says, and why we drafted this ordinance in the way that we did. So generally in controlling access to right of ways municipalities are deemed to be acting in a regulatory capacity not as property owners so public rights of way and under public right-of-way infrastructure um those must be made available for wireless facility deployment so that's clear and that's what these orders are focused on is the public rights of way and you'll see that i do want to make note of that you'll see that in this ordinance that it's focused on public rights of way you'll see that it's not applicable to private property uh private ways um anything of that sort so that is that is specifically carved out and this is a public rights of way access ordinance specifically so i wanted to make that clear from the outset um in with this order um and on the subsequent appeal uh local governments um are still able to institute uh impose reasonable aesthetic regulations and deny um applications that fail to meet um published published in advance aesthetic requirements put into place by municipalities so as a result of the appeal of the initial order um the standards that municipalities still must meet are that any standards they put in place must be reasonable so what does that mean so a reasonable aesthetic requirement is one that is technically feasible for the company so that is something that cities have to keep in mind when they are putting into place these standards is that whatever we're choosing has to be technically feasible um and also reasonably directed to avoiding or remedying intangible public harm or unsightly developments so aesthetic concerns are are definitely okay for municipalities to regulate but it does come with those restrictions um the the restriction i'm sorry the regulations must be published in advance so that the providers are on notice of what is going to be required of them um i did take note in public comment and i know it has been an issue in other municipalities as well that we can't legally control those that are have already been installed i think uh Director Proakis-Ellis could more better address what has been happening since this formal ordinance is being put in place. But I will say putting in a formal ordinance at our earliest convenience is definitely the best legal avenue for the city to take as what we have right now is not legally forcible or enforceable against these carriers. So as of this point, I understand we've had an informal process, which like I said, Director Ellis can elaborate more on. But I do think it's a great advantage for the city to have these standards published in advance that we can start immediately enforcing against these carriers that are requesting permits within our city. The aesthetic standards can be subjective as long as we can explain the purpose of the regulation and how it will prevent or mitigate small cell deployments that are unsightly or out of character in a given neighborhood. So, that being said, the burden, there was an initial burden posed that these cannot be discriminatory. So we can't impose restrictions on these that we would not impose on different types of telecom equipment. That was struck down by the Ninth Circuit, and it was qualified in that we can impose types of restrictions. They must be the same for functionally equivalent structures. that are similar in terms of structure placement and impact so to me that really says we are allowed to design these aesthetic regulations for this 5g type of equipment as opposed to other telecom type equipment this regulation also put into place shot clocks so what that is is at the time a company submits an application um we have 60 days for co-location applications which are infrastructure that's currently existing so a telecom company that wants to come and put something on an existing poll the city or town has 60 days from the submission of that application to make a decision yes or no um so as you can imagine this order was designed to streamline the process for telecom companies and it came about as a result of a lot of a lot of cities and towns around the country trying to put a moratorium on these installations and that's that brings me to my other point um and it's something that's been brought up i believe it was brought up in public comment on a cease and desist or a moratorium on these types of installations that was also specifically addressed in fcc order an outright moratorium uh indefinitely delaying the citing or permitting or approval of these applications is not allowed um so i i believe the law is very clear on that i don't think we would be successful on that in a legal challenge

▶ 29:54 Speaker 5: um the last piece is well i'll address just two more pieces briefly safety and health

▶ 30:02 Speaker 5: so the FCC specifically prohibits municipalities from regulating the safety and health of these devices. We are limited to the FCC emission standards, and we can require these companies to submit affidavits, which you'll see our ordinance does. Our ordinance requires them to submit an affidavit from a radio frequency engineer that the emission standards meet the FCC required limits. We've also gone a step further, which we believe is the furthest the municipality can go in this area, in that if there's two devices on one pole, the combined emissions cannot be greater than what the emission standards are. We've also included a piece for spot checking equipment at the city's discretion that we would hire an expert that would go out and check the emission standards safety features for these devices and make sure they were in the limits. So the City feels that this ordinance addresses, I'm sorry, myself and Ms. Perogas-Ellis that drafted this, we try to address those health and safety concerns to the extent we are allowed to by the law. The other piece of it is the fees that have been established. So the fees, the order also addressed fees that can be established for right-of-way access or permitting for these types of devices. Those numbers are spelled out in the ordinance that we've drafted um so i believe the fees that have been declared presumptively reasonable are 500 for non-recurring fees so that's a single front-up application that would include five um up to five installations i believe right now in our ordinance we have a hundred dollars per application so we could go up on that to the 500 if the council wish to um everything else is in keeping with these presumptively reasonable fees if we wanted to go above the presumptively reasonable fees um dpw would have to articulate um a reasonable approximation of costs uh that the costs themselves are reasonable and not discriminatory for other telecom against other telecom installations so um the city would have more of a burden at that point um in deciding on what the additional fees might be and the reason for those so for right now we have kept in place the presumptively reasonable fees within this ordinance as a lot of other communities have done um in massachusetts um you'll also see

▶ 32:23 Speaker 5: in the ordinance itself and i do agree other communities have gone about this process differently um in this ordinance i've worked with director prowicus ellis on designing the process that i believe we thought would work best for melrose given the current state of permitting um and how things are reviewed within the city um it does include notice to a butters as you will see which a lot of other communities do not address that piece uh it includes notice to the ward city councillor where these uh polls will be installed um does not include a public hearing which some communities do do that um if there's going to be a granted location it will still include um they will still have to go through that process before they do this permanent application um so with that i think i've addressed most of the the legal aspects that i was hoping to get out and I can turn it over to Director Atlas to talk more about the technical design standards.

▶ 33:20 Speaker 6: Thank you. So I think there were some questions on the background of the process that we've been following to date, which I think might be helpful to understand. So previously we've had these applications before for 3G and 4G small cell antennas and for some 5G antennas to date. And our process has been. Early on, we had a couple of the companies come and give sort of a courtesy presentation to the council to the board of Alderman at the time. Um, just to explain what the installations were. I believe that was when we were doing 3 G, small cell. Um, and then after that, we got into a sort of standard process that all the companies abided by. That was not formal in any way, but everybody agreed to do it. And I believe we had installations from sprint. Mobility and Verizon at different points in time, and what they would do is they would submit an application to the city clerk's office. That was similar to. A grant of location application, but rather than going through the formal grant of location hearing process. Uh, the applications would be provided to the counselors and provided to the engineering division of, and then the engineering division would review the locations in the field. Go back and forth with the applicants if they had questions and. Then ultimately issue an approval. We didn't even really call it an approval per se, because it was there was no legally binding approval process, but it was. We would issue conditions, and they would include things like. You can't put these on a double pole. If there's a double pole there, you have to remove the double pole before you put your installation on. Um, if if we just deem that, it's just not an acceptable location and we, we had sort of vague parameters, but nothing in writing. um we would encourage the companies to try to find another site and they typically would work with us um to the extent that they could and then if the conclusion was there was no good alternative and they really needed this site then they would just proceed with that site um most recently verizon submitted a number of applications in 2021 and we acted on 35 of them that we felt the locations were um completely acceptable and that they would have met the standards of at the time we had a draft ordinance in the works and so um we gave authorization for those to move forward we did stipulate with verizon that we wanted them to still meet the reporting and fee requirements of the forthcoming ordinance and they they didn't uh uh indicate any resistance to that and then they have proceeded with their app with those locations that we gave them the approvals on so um we are expecting that the annual fees and the annual um submission of their map that shows all their locations and all of that will encompass any existing um small cell antennas as well that they would they would pay those annual fees they would include them on the maps And any spot checking that we do for emission standards, we would include them in those spot checks. So, with that, I will turn it over to if anybody has any questions.

▶ 37:06 Leila Migliorelli: Thank you, um, I didn't see anyone with their hands raised, but.

▶ 37:13 Speaker 1: Councilor Grigoraitis.

▶ 37:19 Speaker 1: Councillor Williams. All right, let's start with Councillor Grigoraitis. Thank you Madam

▶ 37:21 Jen Grigoraitis: Chair and thank you Shannon and Alina for being here and for that background info. I had some question on just the language of the proposed ordinance itself and then a question on fees. My question around the language is that in parts of the ordinance we're really specific where we enumerate a position, the city clerk, the city council, the city engineer, and then there's a whole section where just talk about the city um that the city will make a determination and i i guess um i recognize that could be intentional but could be like it also feels like that leaves room for some lack of clarity around who is the city is that the department of public works is that the mayor's office is that all of you working in concert i just i mean as was mentioned in public comment um there are some communities that are doing this as a more collaborative approach across departments is there how do you see that working in in um practice when the city is making a

▶ 38:26 Speaker 6: decision and do you want me to take that one sure okay uh so the process to date has has gone through the city clerk's office um particularly because a lot of it ties into the grant of location process even though this is a different process and doesn't require the hearing in the abutters list well it does require the abutters now but um traditionally it didn't in our informal process and so our intention with um you know being a city response is that the the clerk's office would still coordinate um the taking in of the application the sending out to the counselor and to the dpw and the dpw would circle back with our comments through the clerk's office And then the clerk's office would issue the, the final determination mainly so that the applications. Are tracked in a similar fashion, um, all the documentation tracks, similarly to the grants of location and stored in the same way. Um. So, I think that's why we would why we described it more as the city responding. Um, but the review process is clearly spelled out in our, um. Both in the ordinance and internally that it's the engineering division who goes out and conducts the review and reviews the application to make sure it's complete.

▶ 39:52 Jen Grigoraitis: I think it actually says the city engineer, and that was just 1 other. Question or suggestion is, should that say the city engineer or their designee? I know there have been if we're not talking about a department, but a specific. Title if that person, you know, we had gaps in having that position filled again. I don't know. I mean. My experience is more with legislation at the state level, but I thought that's often standard language just to make it clear that that person can authorize someone else. Thank you for that. Explanation and my question on the fees is where will those go just directly into the general city. Coffers, or will they be will there be some designated fund?

▶ 40:33 Speaker 6: I believe our intention is for them just to go into the general city coffers because we haven't. I think we'd have to. Vote to have a dedicated fund. And, um, I didn't, I didn't anticipate that. Um, I thought it would be similar to other fees that we take in to just go into the general fund.

▶ 40:56 Jen Grigoraitis: Okay, and then can you just walk us through the decision around why these fees? I believe there are other municipalities and I think Shannon, you referenced that that charge higher amounts how we landed on these numbers.

▶ 41:08 Speaker 5: Sure, through the chair, I'd be happy to do that. So these numbers so specifically, like I said, we're a little under the numbers I'm about to give you, but there's numbers that are deemed to be presumptively reasonable. Uh, by the FCC, so if you charge those numbers, you're likely to not be subject to litigation or subject to challenge from these telecom companies, they've been deemed presumptively reasonable. So, those are 500 dollars for non recurring fees. So that's a single upfront application that includes up to 5 wireless facilities with an additional 100 dollars for each small wireless installation beyond 5, or 1000 dollars for non recurring fees for a new poll. So, that would be for a grant to location that involved installation on these devices and 270, which you'll see in our ordinance per small wireless facility per year. So, that's a recurring fee per year, an annual fee per year. They'll have to be charged for every 1 of these installations for the access to the right of way. So, for. Being within the right of way, that would be the fees. They, they're charged on an annual basis. Any amount above those. Municipalities have to justify, and it must reflect and equal the actual costs that are incurred by the state and local government for having these installations on these polls. So it's a little. Bit more difficult to quantify. Um, so I think, um, presumptively we. We said, let's put these in here, um, for now and I, I did have that discussion with Elaine. I don't know. She could elaborate more on that. Whether she feels like, it's necessary to go higher than these presumptively reasonable amounts. Um, but there is room for variance and costs, uh, depending on the municipality and how you conduct the analysis. So. If we wanted to do that, we would have to have a reasonable approximation of costs. The cost themselves cannot be discriminatory. So, among other telecom installations, we couldn't be charging much higher amounts. We have to really defend any numbers. We're going to charge over these presumptive amounts.

▶ 43:08 Speaker 6: Yeah, and I don't see a reason to charge higher amounts in terms of. We've, we've just recently adjusted our fees for other types of engineering division permits and we're looking at a 100 dollars for. For other permit applications and inspections. So, I think it would be potentially considered discriminatory if we went above those, those present presumptive.

▶ 43:34 Jen Grigoraitis: Values Thank you. I don't have any other questions.

▶ 43:38 Leila Migliorelli: Thank you Councilor Grigoraitis. I did see Councilor Stewart’s hand up as well and being on the committee. I'm going to have him go and then Councilor Williams.

▶ 43:49 Robb Stewart: Thank you. Thank you Madam chair. I just wanted to. Offer, uh, is practice Allison Phillips the opportunity to answer a couple of questions that came up. During public comment that I don't think were addressed the 1st was. Uh, the setbacks, this might be, um, I'm not sure who wants to take this, but the question was, uh, why 20 feet? Uh, how, how did that come about? And. Um, is there any way to adjust that?

▶ 44:21 Speaker 5: I can take that 1, so if you don't mind, I can just start out with the legal and then you can say technically why we chose the 20 feet. But I forgot to mention in my initial background of the law on this is we can't materially prohibit these these telecom companies from coming into the city. So. we can't have standards that are going to make it impossible for them to install their devices on the pole in other words um so given that that's how a lot of these designs and aesthetic standards were were framed with that in mind uh so with that elaine i can turn

▶ 44:58 Speaker 6: it over to you thank you um so we we originally had uh drafted an ordinance with 20 feet thinking that was an appropriate um distance and we actually discussed it with one of the telecom companies and they were strongly against the 20 feet because they felt that it was that in the more densely populated neighborhoods of melrose um especially certain areas where a lot of houses are have small front yards and are close to the street that that 20 feet may effectively prohibit the um the installation of any small cell technology in those neighborhoods which would then as shannon said would not be legal for us because it would be an effective prohibition um they were asking us to go down to 15 feet um i think 20 feet we stuck with the 20 feet despite those concerns of theirs because i think 20 feet is justifiable we did put in language about the potential for a waiver um if they felt that there was no alternative and you know if there's a neighborhood where all the houses are within 20 feet of the of the street and they have difficulty finding a pole location that's not within 25 20 feet of a structure then they could request a waiver so we're trying to walk that line between um a distance that we feel is reasonable from an aesthetic perspective and a distance that the telecom companies are going to deem um to prohibit them to effectively prohibit them altogether and then challenge legally um and so so 20 seemed to me to be a good um a good distance to walk that line thank you miss burke

▶ 46:42 Robb Stewart: my second question is related to the distance between the antenna that was raised as well is there any uh stipulation of distance between antenna or has that been left open they do need

▶ 46:56 Speaker 6: to indicate when they apply i believe it's within 500 feet they need to show any other antennas that are within those 500 feet and so that um allows us to review if they seem to be putting in an excessive number or if we have you know multiple carriers coming forward with this technology then if if it's getting to be where you know every other pole has an antenna on it um that would be called out with that analysis of the 500 feet and then we could act on the applications accordingly if we felt that it was um it was you know too many in one area by whatever uh whatever standard we would have of what we feel is too many in one area

▶ 47:42 Robb Stewart: Great. Thank you. Last question quickly on the ad hoc testing that has been drafted. Can you talk a little bit about that, how it's conducted, who pays for it, what are the results, how that gets communicated?

▶ 47:56 Speaker 6: The ordinance does indicate that the telecom company needs to pay for it. And that would be performed by someone who is an expert in testing for RF emissions and possesses the required equipment i know when 3g and 4g small cell antennas were going up we had a couple of requests for city staff to go into somebody's home and test to see what the rf emissions were within the home and we had to tell residents that we neither have the equipment nor the qualifications to perform that testing in-house it's just not something that um that we're comfortable doing when uh you know we have two professional engineers on our staff me and our city engineer bonnie reese and when you um sign your professional engineer uh statement when you renew your license every other year you need to sign that you are not going to perform engineering work that is beyond your uh direct area of expertise and this absolutely falls into that category where we could say yes we are professional engineers and we're going to go in and test rf emissions but there is nobody in the city staff who who possesses the qualifications to accurately test for rf emissions so the intent would be to hire an expert bring them in have them spot check particular locations and do that with some frequency whether it be annually or you know whatever we determine is the appropriate frequency frequency based on the number of

▶ 49:33 Robb Stewart: installations we have at any given time. And how is that initiated? Do you initiate that or is it done based on request or is it done based on, how is that initiated?

▶ 49:42 Speaker 6: You could initiate that with an outside company, hire them to come in and do it.

▶ 49:48 Robb Stewart: Let me rephrase. How is the process initiated? Not how do you actually get the work going, but But, um, what, what is the decision point that says, oh, we need to test now. Is it is it a resident asking for it? Is it driven by you? Is it driven by the telecom company? How is that? It would be driven by the city staff.

▶ 50:07 Speaker 6: And, you know, I, I would, I don't want to imply that. Every time a resident calls and asks, we're going to bring in in our. Emissions expert, I think the, when they apply when the telecom companies apply the 1st time around. They need to certify that that their installation. Um, meets the FCC requirements. And that has to be certified by a qualified professional on their end. So. I think we need to trust to some degree as we do with. with any private company installation of anything, that they are meeting the requirements as set forth to them. We will test in some periodic fashion, a random selection of locations. I would anticipate if we find that they all meet the standards, then that would make us comfortable with annual testing or semi-annual testing or the like. If we find that some locations are above the requirements others are below that would be a whole different case where we would probably test more often and more locations um so you know i think some of it is going to depend on our discretion as to how comfortable we feel with the results we find initially

▶ 51:28 Speaker 7: okay great great thank you thank you for everything thank you um miss phillips uh

▶ 51:34 Leila Migliorelli: uh before councillor williams speaks i just want to make everyone aware that we have about five minutes um until eight o'clock when we have to adjourn for um each health education welfare committee um so uh council williams i don't know if you have enough if that's enough time for you to ask your questions or if we should adjourn now and then uh come back for to finish up the