CC 05-26-2021 Proposed FY 2021-2022 City Work Program_Written CommunicationsCC 05-26-2021
#1
Proposed FY 2021-
2022 CIty Work
Program
Written Comments
1
Cyrah Caburian
From:City of Cupertino Written Correspondence
Subject:FW: Verizon Wireless Comments on Council Proposals - Small Cell Wireless Facilities in the Right-of-
Way [Cupertino]
Attachments:Verizon Wireless Letter 05.24.21.pdf
From: Paul Albritton <pa@mallp.com>
Sent: Monday, May 24, 2021 4:00 PM
To: Darcy Paul <DPaul@cupertino.org>; Liang Chao <LiangChao@cupertino.org>; Jon Robert Willey
<JWilley@cupertino.org>; Kitty Moore <Kmoore@cupertino.org>; Hung Wei <HWei@cupertino.org>; City Council
<CityCouncil@cupertino.org>
Cc: Marlene Dehlinger <dehlinger@smwlaw.com>; Chad Mosley <ChadM@cupertino.org>; Heather Minner Law Email
<minner@smwlaw.com>; Kirsten Squarcia <KirstenS@cupertino.org>
Subject: Verizon Wireless Comments on Council Proposals ‐ Small Cell Wireless Facilities in the Right‐of‐Way [Cupertino]
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the
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Dear Councilmembers, attached please find our letter prepared on behalf of Verizon Wireless responding to the Council's proposals
regarding regulation of small cells in the right‐of‐way, raised at your April 20 study session.
We encourage the City to continue processing small cell applications under the current Guidelines, and we look forward to
participating in your next study session.
Thank you,
Paul
‐‐
Paul Albritton
Mackenzie & Albritton LLP
155 Sansome Street, Suite 800
San Francisco, California 94104
(415) 288‐4000
pa@mallp.com
MACKENZIE & ALBRITTON LLP
155 SANSOME STREET, SUITE 800
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415 / 288-4000
FACSIMILE 415 / 288-4010
May 24, 2021
VIA EMAIL
Mayor Darcy Paul
Vice Mayor Liang Chao
Councilmembers Hung Wei,
Kitty Moore and Jon Willey
City Council
City of Cupertino
10300 Torre Avenue
Cupertino, California 95014
Re: Regulation of Small Cell Wireless Facilities in the Right-of-Way
Dear Mayor Paul, Vice Mayor Chao and Councilmembers:
We write on behalf of Verizon Wireless regarding the Council’s proposals for
permitting small cells, discussed at your April 20 study session. Since 2017, Verizon
Wireless has worked with the City to submit and process some 120 small cell
applications, pursuant to the terms of a Settlement Agreement executed with the City that
year. Last summer, Department of Public Works staff developed the City’s current
guidelines for small cells on City-owned poles, released August 27, 2020 (the
“Guidelines”). Since then, Verizon Wireless has filed only two dozen applications under
the terms of both the Settlement Agreement and the Guidelines. In October 2020,
Verizon Wireless signed a “Shot Clock” tolling agreement with the City, extending the
time period for Public Works to process the applications per Federal Communications
Commission (“FCC”) rules.
Some of the approved Verizon Wireless facilities criticized by the Council on
April 20 would be restricted by the Guidelines if their applications were filed today. The
Guidelines should be allowed to remain in effect, and their impact on new applications
should be evaluated before they are revised, as they already address several of the
Council’s concerns. For example, the location preferences already favor non-residential
zones over sites near residences, schools and playgrounds.
Several of the Council’s new proposals would contradict federal or state law, as
we explain. For example, limiting a wireless permit term to three years directly violates
state law. Requiring applicants to prove that a denial would violate federal or state law is
inconsistent with Federal Communications Commission (“FCC”) regulations.
Cupertino City Council
May 24, 2021
Page 2 of 6
The City should continue processing small cell applications under the current
Guidelines. Verizon Wireless proposes one modification to the Guidelines to address
public participation, by giving the Department of Public Works discretion to hold a
public hearing on an application prior to approval. We look forward to participating in
the Council’s next study session.
Federal Communications Commission Regulations Constrain Local Review
of Small Cell Applications.
The FCC adopted its September 2018 order to provide direction on appropriate
approval criteria for small cells. See Accelerating Wireless Broadband Deployment by
Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report
and Order, 33 FCC Rcd. 9088 (September 27, 2018) (the “Infrastructure Order”). The
FCC determined that a city’s aesthetic criteria for small cells must be “reasonable,” that
is, “technically feasible” and meant to avoid “out-of-character” deployments, and also
“published in advance.” Last year, the Ninth Circuit Court of Appeals upheld these FCC
requirements. See City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020),
petition for cert. pending, No. 20-1354 (filed March 22, 2021).
The Court agreed with the FCC that local requirements that “materially inhibit”
deployment of new technology constitute an effective prohibition of service under the
Telecommunications Act. 47 U.S.C. §§ 253(a), 332(c)(7)(B)(i)(II); Infrastructure Order
¶ 37; City of Portland, 969 F.3d at 1036. The Court also upheld the FCC’s “Shot Clock”
rules that require a decision on small cell applications within 60 days (for existing poles)
or 90 days (for new/replacement poles), subject to tolling for incompleteness. 47 C.F.R.
§§ 1.6003(c), (d); City of Portland, 969 F.3d at 1043.
Comments on Council Proposals
Below, we explain that some of the Council’s proposals are already addressed by
the Guidelines. Other proposals contradict state law, federal law or the FCC’s small cell
regulations.
Encouraging new poles in commercial areas, instead of siting facilities in residential
zones. This would not improve on the City’s current location standards. The Guidelines
already prefer Category 1 non-residential zones over Category 2 residential zones. To
site in a Category 2 location, applicants must show that any Category 1 streetlight poles
within 500 feet are infeasible. This would steer a proposed small cell away from
residences to one of the many streetlight poles typically found on nearby commercial
streets, if feasible. The City should allow new poles where necessary, consistent with
Public Utilities Code Section 7901. Verizon Wireless has placed several new streetlight
poles per the City’s request, dedicating them to the City.
Requiring review of alternatives within 1,000 feet. Currently, the Guidelines require
review of any more-preferred locations within 500 feet. To expand the search distance to
1,000 feet would quadruple the search area (from 5.7 acres to 22.9 acres). In the right-of-
Cupertino City Council
May 24, 2021
Page 3 of 6
way, small cells serve targeted areas with a limited coverage footprint. Steering a small
cell too far from a proposed location would leave a target coverage area underserved or
unserved, constituting a prohibition of service in violation of federal law. See 47 U.S.C.
§§ 253(a), 332(c)(7)(B)(i)(II); see also Infrastructure Order, ¶¶ 37-40.
The 500-foot search distance represents a reasonable compromise between the City’s
desire to regulate the placement of small cell facilities, and the technical limitations of the
radio frequencies licensed by Verizon Wireless from the FCC. Any greater search
distance prevents Verizon Wireless from efficiently deploying its licensed frequencies,
and may constitute a prohibition of service that would contradict federal law.
Accordingly, Berkeley and Davis recently adopted a search distance of 500 feet, Danville
and Concord 250 feet, and Oakland 200 feet.
Requiring applicants to show that a proposed location meets their service needs,
compared to alternatives. Both state and federal law preempt requirements for wireless
carriers to demonstrate the need for their small cells. California Public Utilities Code
Section 7901 grants telephone corporations a statewide right to place their equipment
along any right-of-way, including new poles, so wireless applicants need not provide
information regarding need. Further, as discussed above, the FCC determined that small
cells are needed to densify networks, and to enhance and introduce new services. These
are Verizon Wireless’s objectives in placing small cells in Cupertino.
Consistent with the FCC’s direction to develop “reasonable” aesthetic criteria, the
appropriate standard for comparing alternatives is technical feasibility. The Guidelines
already list feasibility as a factor for reviewing more-preferred locations within 500 feet.
Verizon Wireless has discounted alternative poles for feasibility factors such as excessive
tree cover that blocks signal, or difficulty connecting to a sufficient power source
compared to proposed pole.
Adding Categories 4 and 5, whereby sites within 40 feet of homes would require
Planning Commission approval, and within 20 feet, Council approval. Proximity to
residences is already addressed in the Guidelines, which list locations within 20 feet of
any occupied structures in least-preferred siting Category 3. Currently, an applicant
proposing a site within 20 feet of residence must show that within 500 feet, there are no
feasible alternatives that are not within 20 feet of an occupied structure.
Because the Guidelines impose this reasonable location constraint, hearings before the
Commission and/or Council are unnecessary, and would be burdensome on staff time and
resources. The Planning Commission is tasked with issuing land use permits, not
encroachment permits. The City Engineer has the expertise to evaluate technical
feasibility of alternatives. A Commission or Council denial would likely contradict the
location preferences of the Guidelines, if more-preferred location options within 500 feet
are infeasible. Such a denial would “materially inhibit” service improvements,
constituting a prohibition of service. Any decision of the Planning Commission or
Council that contradicts the Guidelines would violate the federal requirement that
standards be technically feasible and published in advance.
Cupertino City Council
May 24, 2021
Page 4 of 6
Increasing the setback from occupied structures from 20 to 40 feet would restrict most
rights-of-way. The attached analysis by Richard Kos, AICP, evaluates the impact of an
increased setback on the rights-of-way where small cells can be placed on streetlights,
based on City GIS data. Combined, the current setbacks of 20 feet from occupied
structures and 100 feet from schools and playgrounds limit 17.29% of the rights-of-way
suitable for small cells. Increasing the occupied structure setback to 40 feet would limit
75.81% of the rights-of-way – over four times as much, and clearly constituting a
prohibition of service under federal law. We also note that, if used as a measure to
require Planning Commission review, the 40-foot setback would require nearly all small
cell applications to be subject to a lengthy hearing process.
Finally, as noted, the City has been unable to process current Verizon Wireless
applications within the required FCC “Shot Clock” periods. As a result, Verizon
Wireless and the City have had to enter into multiple agreements to avoid City liability
for failing to meet these federal processing timelines. To add Planning Commission and
City Council hearings to this process, whether by right or through appeals, would
seriously compound the City’s current inability to timely process small cell applications.
The City should avoid new regulations that would make processing applications within
the FCC’s “Shot Clock” timelines impossible.
Requiring applicants to show that denial would violate federal or state law. This is
similar to wireless permit findings in Los Altos, which Verizon Wireless has sued
because of its unlawful ordinance and an unfounded denial of a small cell (AT&T also
has sued Los Altos). There is no reason to require applicants to explain why a denial
would violate federal or state law, as that has no bearing on the “reasonable” aesthetic
and location criteria required by the FCC.
This proposal implies that the City would deny a proposed small cell if the decision-
maker did not believe that an applicant provided a sufficient legal explanation. However,
such judicial determinations must be left to the courts. Evaluating the risks of denial on a
case-by-case basis would suggest that the City adopted legally-suspect regulations.
Instead, a city should confirm that its small cell policies are reasonable and lawful at the
outset.
Limiting permit term to three years for sites closer to residences. This would violate
California Government Code Section 65964(b), which bars cities from unreasonably
limiting wireless permit terms, and presumes that a period less than 10 years is
unreasonable.
Two-year master plan if applicant submits 10 or more applications per year. A
master plan implies an evaluation of the need for a facility, but as explained above, state
and federal law preempt requirements for wireless applicants to prove the need for their
small cells in the right-of-way. Adherence to a previously-submitted master plan could
not be a decision factor for future applications; each small cell must be evaluated on its
own merits. Wireless networks are dynamic, and a carrier’s network plans may change
Cupertino City Council
May 24, 2021
Page 5 of 6
based on new frequencies available from the FCC, evolving technologies, shifts in
customer demand, and new federal regulations. A master plan prepared today may be
inapplicable next year.
Appeal to the City Manager. This would expand the City Manager’s duties with
respect to administrative appeals, requiring an ordinance amendment. A formal appeal
process is unnecessary because the Guidelines already provide for public participation.
Currently, applicants must mail public notice to property owners with 500 feet, respond
to public comments received within 21 days, and prepare a public comment report for the
City Engineer. As noted, Verizon Wireless has cooperated with requests from Public
Works to relocate seven of its approved small cells in response to public comment,
confirming that the Guidelines’ current notice and comment procedures work.
Instead of public appeals to the City Manager, the Council should consider adding a
provision to the Guidelines granting the Department of Public Works the discretion to
hold a public hearing on an application, if warranted by public comment. The hearing
could be conducted by the Director of Public Works, the City Engineer, or their designee,
with hearing comments included in the record prior to a decision on an application.
Verizon Wireless appreciates the Council’s recognition that appeals should not be
allowed if based on concern over radio frequency emissions, because that is preempted
by the Telecommunications Act. 47 U.S.C. § 332(c)(7)(B)(iv). Because many public
objections are based on radio frequency emissions, appeals generally would be barred by
this Council proposal, demonstrating why a new appeal process is unnecessary.
Stronger aesthetic requirements. As explained above, the FCC requires that a city’s
aesthetic standards for small cells be technically feasible. Wireless carriers are limited to
antenna and radio models available from manufacturers that work with the frequencies
that the carrier has licensed from the FCC.
Verizon Wireless has designed its small cells to minimize the profile of this required
equipment. The current screened design is a compromise that allows for a uniform
profile that works for Verizon Wireless, AT&T and other wireless carriers. The designs
approved for Verizon Wireless small cells in Cupertino are shown in Exhibit B,
“Approved Designs,” of the 2017 Settlement Agreement.
Fiber backhaul networks. Fiber lines should not be addressed in a city’s wireless
regulations. Verizon Wireless will not install the fiber backhaul lines that connect its
small cells in Cupertino, but will be a customer of fiber companies that provide
connections for various users along a fiber route. Fiber companies are regulated
differently. For example, they generally are registered with the California Public Utilities
Commission as wireline telephone companies, whereas Verizon Wireless is a cellular
carrier. Further, fiber backhaul networks are beyond the scope of a “small wireless
facility” as defined by the FCC. 47 C.F.R. § 1.6002(l). Verizon Wireless’s
encroachment permits encompass each small cell up to its point-of-connection with the
Cupertino City Council
May 24, 2021
Page 6 of 6
fiber backhaul network, but not beyond. Fiber providers would secure their own permits
under applicable regulations.
The Guidelines are consistent with small cell regulations adopted by numerous
other cities. Of note, the reasonable location preferences and the 500-foot search distance
provide clear siting criteria for both applicants and City staff, while avoiding an unlawful
prohibition of service. We encourage the City to continue processing small cell
applications according to the current Guidelines.
Very truly yours,
Paul B. Albritton
Attachment
cc: Heather Minner, Esq.
Marlene Dehlinger, Esq.
Chad Mosley
Kirsten Squarcia
1
Methodology for calculating impact of setback requirements on the
siting of future Verizon small cell wireless telecommunications facilities in the City of Cupertino
Prepared by Richard Kos, AICP | March 2021
Step 1. Assemble spatial datasets from the city’s open data portal (https://www.cupertino.org/online-
services/open-government-data/open-datahub) into a geodatabase; project all datasets to a common
projected coordinate system (U.S. State Plane Zone III, NAD 1983, linear units feet):
• Light poles (not “traffic poles”)
• Building footprints
• City boundary
• Edge of pavement
• Parcels
• Zoning
• Facilities
• Park structures
Step 2. Create a map layer depicting all portions of public right-of-way within 10 feet of parcel lines. This
is a conservative estimate of the portion of right-of-ways within which small sites might be constructed
and which lie outside of vehicular travel areas. Begin by dissolving all parcels with centroids in the
Cupertino city limits into a single shape. Then use the Buffer function to delineate the 10-foot distances
from the resulting edges. A portion of the resulting map layer is shown below (10-foot distances in red)
The objective of this analysis is to show the impact of city-imposed setback distances on the feasibility of
constructing new Verizon small cell sites in “Least Preferred Sites”. Small cells are permitted on city-
owned light poles per the city’s Guidelines for Encroachment Permit Submittals. Relevant portions of
Attachment C from the Guidelines are shown below (highlighting added).
2
For reference, note the setback requirements listed below in “Category 3” (items a. through e.) The
following sections of this report analyze four of the five setback distances, excluding the 500’ setback
between facilities, provided under 3.b
Category 3.a. 15 feet from a public roadway intersection.
There is no systematic or programmatic way in GIS to map this distance for every intersection in
Cupertino since each intersection has unique geometry and there is no way to programmatically select
each curb radius. Instead, a rough approximation of the right-of-way area impacted by provision 3.a. can
be made. First, this 15-foot distance is understood to mean 15 feet as measured from a point of tangency
at the “tip” of the curb radius. First, the number of intersections, citywide, is estimated.
Using the Intersect tool, with Cupertino roads as the input and points as output, 3,960 intersections were
found after filtering out all points outside of the city limits and manually removing intersections along
freeways. Manually remove another 500 points to estimate for multiple intersection points appearing
along divided arterial streets (e.g. Stevens Creek Boulevard). The result is 3,460 intersections.
We can conservatively estimate that all Cupertino streets meet at 4-way intersections and – at each of
these intersections – there are eight separate right-of-way “sides of the street” (sidewalk legs, for lack of a
better term) per intersection.
Multiplying 3,460 intersection points by 8 … then multiplying the result by 15 linear feet (per provision
3.a) = 415,200 linear feet of right-of-way, citywide, affected by provision 3.a. Since this analysis considers
a right-of-way width of 10 feet as the area in which small cell sites could be added to city light poles, the
area of rights-of-way affected by category 3.a. is (415,200 x 10) = 4,152,000 square feet. Divide this by
43,560 to arrive at 95.31 acres.
There are 324.30 acres in the 10-foot right of way, citywide, so dividing 95.31 acres into this value,
represents 29.39% of total 10-foot right of way width is impacted by category 3.a.
3
Category 3.b. 500 feet from any other small cell facility in the right-of-way owned by the same wireless
carrier.
This layer is not shown on the maps. However, there may be instances where the separation of facilities is
not within the applicant’s control.
Category 3.c. 20 feet from an occupied structure.
Per Modus, “occupied structure” is defined as:
“Occupied structures” as the City applies it includes any building that has
people – residences, offices, commercial buildings.. it’s a pretty broad term to
implement a mandatory 20’ setback across the board. 1
One way to determine how different buildings are typically occupied is to consider
Cupertino’s zoning districts, listed at the right. From this list of districts, and
considering the definition above, it appears that all buildings in all zoning districts
could, technically, quality as “occupied structures”. Therefore, all buildings in
Cupertino appear to be subject to the small-cell building setback requirements. In Steps 3, 4, and 5 of this
report, the impact of current building setbacks (20 feet) on small cell siting will be explored, along with
an analysis of increasing these setbacks to 30 feet and 40 feet.
Category 3.d. 100 feet from a public school building.
The shapefile “Facilities” was downloaded from the city’s open data portal. This map layer includes
locations of schools, including De Anza College. The layer was filtered to show only public school
properties – there are 30 in the city. Since the map layer includes the entire school property for school
sites, in order to isolate the school buildings “select by location” was used to select all of the building
footprints that intersect those 30 properties – the result is 503 buildings, including primary structures
and any other building on the school properties. The resulting 503 public school property buildings were
then buffered by 100 feet.
Category 3.e. 100 feet from a publicly accessible playground.
The shapefile “Park Structures” was downloaded from the city’s open data portal. This map layer includes
locations of playgrounds. When filtered for this park structure types, there are 38 playgrounds in the city.
A 100-foot buffer was delineated from these 38 sites.
Step 3. Analyze the impact of 20-foot building setbacks (category 3.c.) in combination with Category 3.d,
and 3.e. Buffers
Generate 20-foot buffers around all occupied building footprints in the city and combine with the other
two setback categories – school buildings and playgrounds. The map on page 4 shows rights-of-way
colored red that are impacted by these three combined setback areas and green where there is no
impact of setbacks.
Step 4. Repeat the process from Step 3 above, this time using a 30-foot setback from all occupied
structures. The results of this analysis are shown on page 5.
Step 5. Repeat the process from Step 3 above, this time using a 40-foot setback from all occupied
structures. The results of this analysis are shown on page 6.
1 Email from JoAnna Wang, Modus Director of Government & Community Affairs, to Richard Kos, January 12, 2021.
4
5
6
7
CONCLUSIONS
With the existing 20-foot occupied building requirement (category 3.a.):
• 56.07 acres: citywide, impacted by Category 3.c, 3.d, 3.e setback requirements
Divided by
• 324.30 acres: citywide, all 10-foot right-of-way as measured from nearest property line
Equals
• 17.29%: the portions of 10-foot right-of-way impacted by Category 3.c, 3.d, 3.e setback
requirements.
With the existing 20-foot occupied building requirement increased to 30 feet:
• 185.03 acres: citywide, impacted by Category 3.c, 3.d, 3.e setback requirements
Divided by
• 324.30 acres: citywide, all 10-foot right-of-way as measured from nearest property line
Equals
• 57.06%: the portions of 10-foot right-of-way impacted by Category 3.c (modified to 30 feet), 3.d,
and 3.e setback requirements.
If the existing 20-foot occupied building requirement were to be doubled to 40 feet:
• 245.86 acres: citywide, impacted by Category 3.c, 3.d, 3.e setback requirements
Divided by
• 324.30 acres: citywide, all 10-foot right-of-way as measured from nearest property line
Equals
• 75.81%: the portions of 10-foot right-of-way impacted by Category 3.c (modified to 40 feet), 3.d,
and 3.e setback requirements.
1
Cyrah Caburian
From:Marilyn Beck <beck1739@gmail.com>
Sent:Tuesday, May 25, 2021 3:49 PM
To:City Council
Subject:new work projects
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the
sender and know the content is safe.
At a recent council meeting, Mayor Darcy Paul introduced new work projects:
* $250,000 for a 4th of July drone show in 2022 that has unknown feasibility due to FAA regulations (the regular
fireworks event cost $82,500),
No we do not need drones.
* $300.000 for commissions and council to reengage the community
For what?
* $100,000 for a Cupertino Store at the Chamber of Commerce
a store??? have you been paying any attention to retail lately??
As a resident of the city, I'm concerned that this is a lot of money to be spending at this time. I suggest the council listen
to the staff and prioritize the projects that have already been proposed, not invest in what seem like vanity projects.
Thank you,
Marilyn Beck
1
Cyrah Caburian
From:Elizabeth Mulford <lmulford@pacbell.net>
Sent:Tuesday, May 25, 2021 4:57 PM
To:Darcy Paul; Liang Chao; Kitty Moore; Hung Wei; Jon Robert Willey
Subject:Darcy Paul's proposed projects--NO! There are FAR more important needs for $600,000--such as
social services and especially housing.
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you
recognize the sender and know the content is safe.
The 4th of July celebration to cost no more than $95,000. All other proposed items—including the store are a waste of
our money. Please do NOT support his spending that much money on those items.
Respectfully,
Liz Mulford,
10366 Tonita Way,
39 year resident of Cupertino
1
Cyrah Caburian
From:Kent Vincent <deanza_travel@yahoo.com>
Sent:Tuesday, May 25, 2021 10:46 PM
To:City Council
Subject:Email in favor of new community work projects
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the
sender and know the content is safe.
Dear Council members,
This email is in support of the spirit of the new community work projects recently introduced by Mayor Darcy Paul.
Over a period of several decades, the sense of community in Cupertino has dramatically declined. Some can remember
when the best-in-area annual Fourth of July fireworks were held at De Anza College. Thousands of residents blanketed
the sports fields to watch fireworks directly overhead to music played by the Cupertino Symphonic Band. Our local service
clubs manned the food concessions. Some can remember De Anza Days, a fair-like open house attracting thousands of
residents each June and featuring hot air balloons, military parachute drops, basketball games with 49er players like Jerry
Rice and diving championships. Back then, Flint Center was a premier entertainment venue attracting big name
entertainers, Broadway shows, lectures and symphonies. These community defining events gave Cupertino residents a
proud sense of community and reason for choosing our city as a place to live. But, sadly, none of these exist today and
none have been comparably replaced.
In my view, the City should dedicate annual funds for the express purpose of funding major community-wide events that
promote the sense of community that aspires to define our city and its residents.
Kent Vincent
Cupertino