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2019-02-27 Planning Board MinutesCITY OF EDMONDS PLANNING BOARD MINUTES February 27, 2019 Chair Cheung called the meeting of the Edmonds Planning Board to order at 7:02 p.m. in the Council Chambers, Public Safety Complex, 250 — 5' Avenue North. BOARD MEMBERS PRESENT Matthew Cheung, Chair Daniel Robles, Vice Chair Alicia Crank Nathan Monroe Carreen Nordling Rubenkonig BOARD MEMBERS ABSENT Todd Cloutier (excused) Phil Lovell (excused) Mike Rosen (excused) READING/APPROVAL OF MINUTES STAFF PRESENT Mike Clugston, Senior Planner Jeanie McConnell, Engineering Program Manager Jeff Taraday, City Attorney Jerrie Bevington, Video Recorder Karin Noyes, Recorder BOARD MEMBER MONROE MOVED THAT THE MINUTES OF FEBRUARY 13, 2019 BE APPROVED AS PRESENTED. BOARD MEMBER RUBENKONIG SECONDED THE MOTION, WHICH CARRIED UNANIMOUSLY. ANNOUNCEMENT OF AGENDA The agenda was accepted as presented. AUDIENCE COMMENTS There were no audience comments. DEVELOPMENT SERVICES DIRECTOR REPORT TO PLANNING BOARD Chair Cheung referred the Board to the Development Services Director's Report that was provided in the packet. There were no comments or questions from the Board. PUBLIC HEARING ON INCORPORATING SMALL CELL STANDARDS INTO THE WIRELESS ORDINANCE (FILE NUMBER AMD 20180010) Mr. Clugston advised that, in addition to the items that were included in the Board's meeting packet, staff also provided an attachment of a redline/strikeout version of the ordinance that was submitted by AT&T just prior to the meeting. He reviewed that the topic was introduced to the Planning Board on January 9'. On February 13', the Board reviewed and discussed the Interim Small Cell Wireless Ordinance that was approved by the Council on February 12t' and scheduled a public hearing for February 27'. He reminded them of the short time line for adopting the ordinance. As per the Federal Communications Commission's (FCC) September 27, 2018 ruling, local jurisdictions only have until April 14, 2019 to implement small cell aesthetic standards. Mr. Clugston provided several pictures to illustrate different situations where small cell wireless facilities could be located in Edmonds and described potential options for locating the equipment within the ROW and on zoned property. He summarized that there are a variety of options for the industry to site the small cell wireless facilities, and it is important for the City to have an ordinance in place to address their location and appearance. Mr. Clugston explained that, as per the FCC's definition, a small cell facility is a support structure that is about 50 feet tall, antennas no larger than 3 cubic feet in size, and related equipment no greater than 28 cubic feet in size. He provided some examples of how the antennas and equipment might look, noting how they could be either concealed or camouflaged. He explained that small cell facilities are intended to offload macro service capacity and provide new coverage in some areas. Because it is anticipated that the facilities will be located throughout the entire City, it is important to have standards in place to minimize their visual impact as much as possible. As proposed, locating small cell facilities on zoned properties would still be the priority. If that is not possible, the facilities could be located within the ROW. He pointed out that macro facilities have been located on zoned properties, and there seems to be no reason why small cell facilities could not also be located on zoned properties. He shared a number of examples of how they could be located on existing buildings or on freestanding poles just behind the sidewalk. Ms. McConnell advised that staff met in a phone conference with industry representatives last week and learned about the things that were not working well within the code. However, they didn't receive a lot of technical information that could have been useful in putting together a code that would work well for them. Subsequently, staff enlisted help from a technical consultant and learned some critical information related to the installation of small cell facilities on buildings. Antennas mounted on the sides of existing buildings do not project well, especially considering that single-family residential homes are set back further from the ROW. An omni-directional antenna could work on the rooftop of an existing building, but the building that the antenna is mounted on would not benefit from the antenna because the signal would be projected out and not down into the building. There would not be a great reason for a building owner to want to work with the industry to place the antenna on his/her building. She summarized that staff gave additional consideration to this technical information and they are now recommending that "locating outside of the ROW on existing buildings" be removed as Priority 1. It would still remain as an option, and the City would encourage it if feasible, but the provider would not be required to work through the steps to demonstrate why it is not feasible. This change would place "freestanding small cell poles outside of the ROW" as Priority 1. She shared examples and reviewed the location hierarchy as follows: • Priority 1— Locate outside of the public right-of-way on a building. As discussed earlier, staff is recommending that this option be removed as the top priority but remain an option that providers should consider when appropriate. • Priority 2 — Locate outside of the public right-of-way on a freestanding small cell pole. A freestanding small cell pole could be located on private property within 5 feet of the ROW line. It would be kept out of the right-of- way, but still look as though it is part of the utility corridor. This option provides wireless providers the ability to place antennas in a way that works well for their system (omni-directional antenna at the top), and allows for complete concealment of conduit and equipment. It will require the providers to work with private property owners prior to submitting an application. Vice Chair Robles summarized that the current proposal would remove location on the building as a first priority because the building owner would not benefit from the antenna. Obviously, the building owner would still have service, but where would the signal come from? Ms. McConnell said removing it as Priority 1 is consistent with concerns raised by the providers that they do not want to locate on existing buildings. Vice Chair Robles asked why it was the first priority to begin with. Ms. McConnell explained that the initial thought was less clutter in the ROW and reserving the ROW for other uses such as City utility systems and infrastructure. There is already a provision in the code that allows macro facilities on existing structures, and staff felt it would be a good first -priority option for small cell facilities, since they would be away from the ROW and concealed on the building. Currently, there are macro facilities located on existing structures in Edmonds that work well, but it apparently won't work so well for small cell facilities. Planning Board Minutes February 27, 2019 Page 2 Vice Chair Robles asked staff to explain the technical reason why small cell facilities on existing building would not work. City Attorney Taraday explained that there will be instances where this option will work, particularly with buildings that are located close to the ROW. The more staff learned about all of the problems and challenges associated with placing the facilities on existing buildings, they did not feel it would be appropriate to require wireless providers to rule out placement on a building in every situation before moving down to the next priority. It seemed highly unlikely they would find many willing takers. Even if they did, because of the technical limitations associated with property setbacks, the facility would not provide as good of coverage as something located closer to the ROW. Staff learned that there is an inverse relationship between transmission beam width and the power of the signal. Antennas mounted on existing buildings would be panel antennas that shoot out in one direction. While degrees of transmission can be angled, the most typical range is between 60 and 90 degrees of beam width. For example, if a panel antenna is mounted on the front of a structure that is setback 25 feet from the ROW, it would provide very narrow coverage for the surrounding area and no coverage to the site host. It is not likely that property owners would want to allow facilities to be attached to their homes if there would be no benefit from the strength of the signal. On the other hand, a freestanding small cell pole located close to the ROW would significantly benefit the host site. While the monetary benefit would still be relatively small, some property owners might be attracted to the option because they would have better service than anyone else in the neighborhood. Vice Chair Robles summarized that it is important to articulate the reasons for moving away from mounting facilities on existing structures as the preferred option. Giving citizens an opportunity to benefit economically appeared to be a sound approach. City Attorney Taraday said there were several reasons. They always knew it would not be easy, but staff later learned that there would be no transmission to the house the facility is located on. Vice Chair Robles commented that the house where the facility is located would likely receive a signal from another small cell facility. City Attorney Taraday agreed that there would be some service to the house. He emphasized that it is not the City's intent to make the industry jump through unnecessary hoops. He questioned why a property owner would want something located on a home for the very small amount of money a provider would offer when he/she would not benefit from the signal. Board Member Crank said her understanding of the current proposal is that location on existing buildings would not be eliminated as an option, but it would no longer be the top priority. Chair Cheung agreed that the likelihood of someone agreeing to put an antenna on their house that would not benefit them is small. He questioned why the City would want to require the providers to send letters to all nearby property owners if the responses are likely to be negative. Vice Chair Robles said the benefit would be notifying the community and allowing them an opportunity to discuss what is happening in their area. City Attorney Taraday clarified that Priority 2 would also require providers to send letters to property owners in the vicinity, and property owners would still have an opportunity to host a facility. Board Member Rubenkonig referred to the minutes of the February 131 meeting when Chair Cheung voiced concern that "the proposed regulations try to do too much in dictating the actual design of the small cell facilities. He questioned if the City would have the ability to uphold all of the criteria if it is deemed unfeasible by the industry. " She suggested that the proposed change would help to address this concern. Staff has determined that the industry is correct in saying that requiring facilities to locate on existing buildings would be a hardship on residents because they would not get a benefit. Chair Cheung observed that because locating on freestanding poles outside of the ROW would become Priority 1, providers would still be required to send letters to property owners offering the option of locating a pole in their front yards. • Priority 3 — Locate within the public right-of-way on new existing hollow street light or utility poles. Staff has had some conversations about replacement of wood poles with steel poles as an option, as well, but we haven't quite got enough information together from the PUD to understand all of the impacts related to that. With this option, an omni-directional antenna would be located at the top of the pole and equipment and wires would all be concealed within the pole. • Priority 4 — Locate within the public right-of-way on a new freestanding small cell pole or street light. If it has been determined by the Public Works Director that if a street light is necessary or beneficial to the public at the location, the City would require installation of a streetlight instead of a freestanding pole. This option would include an omni-directional antenna at the top of the pole with all of the equipment and conduit concealed within the pole. • Priority 5 — Locate within the public right-of-way on an existing Public Utility District (PUD) single-phase pole. The placement of the antenna would be on top of the pole, so there would still be a streamlined look to it. Planning Board Minutes February 27, 2019 Page 3 would be attached to the side of the pole, and there would be conduit running up the pole. The code addresses color matching to the pole so that the conduit and external equipment blends in with the pole. • Priority 6 — Locate within the public right-of-way on an existing PUD transmission pole (installation in communication space). The PUD has indicated that it is not possible to locate antennas on top of transmission poles, so the panel antennas used in this application would be located on the side of the pole within the communication space. This option would require multiple antennas in order to transmit the signal in all directions. All equipment and conduit would be external on the pole. City Attorney Taraday commented that, depending on its coverage objective, a provider may decide to use just two panel antennas shooting down the ROW at a fairly narrow beam width and not necessarily spray the houses, but three or four panel antennas would be needed to create an omni-directional affect. Chair Cheung asked if panel antennas are more powerful than omni-directional antennas. City Attorney Taraday responded that the more you spread the beam width, the less power the antennas have distance wise. To get more power, the signal would have to be more narrowly focused, but then the coverage would be less and more antennas would be needed. Chair Cheung asked if a number of panel antennas placed around the pole in a circle would cover a larger area than an omni-directional antenna. City Attorney Taraday said he learned that if the goal is 360-degree coverage and each panel antenna has a 90-degree beam width, four panels antennas would be needed. If the beam width is only 60 degrees, then 6 panel antennas would be needed. The more the beam width is spread, the less powerful the signal will be. • Priority 7 — Locate within the public right-of-way on a strand -mounted installation in communication space. In this option, the antenna would actually hang on an existing utility wire. As written, antennas can be hung on the wire, but the associated equipment must be located on a pole. The code would not allow the installation of a strand - mounted facility on an existing wooden pole that already has a street light on it. The end result would be more clutter in the air space and greater visual impact. Conduit and equipment would be camouflaged as much as possible. Ms. McConnell advised that there is a provision in the code that requires a Sternberg streetlight model for installations in the BD zones so they closely match the existing lighting. She has reached out to a Sternberg representative, but he is unavailable until next week. The intent is to make sure they end up with something in the code that actually exists, is feasible, and matches the goals they are trying to get at. Mr. Clugston explained that, in addition to the aesthetic and location standards (ECDC 20.50.130) and application requirements (ECDC 20.50.070.H), the interim ordinance also requires a Master Permit Agreement (ECDC 20.50.020.C) for installations within the ROW. This requirement is similar to what is required of any other utility that wants to locate within the ROW. Mr. Clugston said that, in addition to the location criteria, other proposed amendments are related to eligible facilities requests (ECDC 20.50.080), permit timelines (ECDC 20.50.060), and existing macro/monopoles (ECDC 20.50.110). He explained that the current code references eligible facilities requests for existing approved facilities, and the proposed amendment would add a size limitation. The City receives a number of eligible facilities requests that often involve swapping out a large antenna for another large antenna that is similar. Additionally, the FCC order identified time limitations for permit review, and language was added to the code describing how the shot clocks work. For example, the City has 60 days to review eligible facilities request applications, 90 days for new macro facilities that are co -located, 150 days for new macro facilities that are not co -located, 60 days for new small cell facilities that are not co -located and 90 days for small cell facilities located on new poles or structures. The clock starts at the time of application, so the City needs to make sure the application requirements are clear and something that can be met easily. There are very limited circumstances under which the City can pause the shot clock. If the City does not act within 60 days on an eligible facilities request, the application is deemed approved, which means the provider could seek a court order to get the City to move on the permit. There is no "deemed approved" provision yet for macro or small cell facilities, but he anticipates it will happen soon. Mr. Clugston advised that the City has not had problems meeting the timeline for macro facilities, but a significant amount of time will be required to review small cell facility applications. An application batching provision is provided in the code, which allows a provider to submit applications for multiple sites at one time. While there may be some efficiency in looking Planning Board Minutes February 27, 2019 Page 4 at multiple sites as opposed to one in a given area, it will require the City to process multiple permits at one time within the timeframe allotted. Mr. Clugston said another main focus of the update is related to new monopoles for macro facilities and would eliminate the exceptions for height and setbacks and require that monopoles must meet the zoning requirements for wherever they are located. They will typically be located on commercial properties where additional height is allowed. In addition, the facilities would have to be completely concealed, providing for a cleaner look. A new macro facility would no longer require a Conditional Use Permit. Instead, it would be permitted similar to any other structure allowed in the commercial zone. Board Member Monroe observed that the City's code uses the word "feasible" a lot, and the FCC requirements use the term "reasonable." He asked the City Attorney to explain the differences between the two terms as they apply to wireless facilities. City Attorney Taraday said it depends upon the context. At a basic level, reasonable means there must be a reason for it. When the City is told that their regulations have to be reasonable, it means they need to articulate the reason they are proposing the code. It cannot be done arbitrarily. Feasible is more of a "does it work" type test. Board Member Monroe asked if cost factors are considered when determining whether something is "reasonable" or "feasible." City Attorney Taraday explained that the City cannot charge a fee for using the ROW. When it comes to the cost of a new pole, he does not see anything in the FCC order that would suggest that those types of costs would be considered by the FCC to be unreasonable, infeasible or illegal. Kim Allen, Wireless Policy Group, Issaquah, said she was present to represent Verizon Wireless. She disclosed that she served five years on the Redmond Planning Commission and is now the chair of the Kitsap County Planning Commission. She also served 11 years on the Redmond City Council as a hearing examiner. She has worn most of the hats that go into decisions like this, and she thanked the Board for their time. She read the minutes from the Board's last meeting and saw that some members were concerned that the proposed ordinance might be outside the scope of the City's authority with respect to land use, and she felt they were right to be concerned. The proposal before the Board is not workable and no other jurisdictions have tried to prohibit access to the ROW by requiring a provider to rule out private property locations. The reason why other cities are not doing this is because it is not consistent with federal or state law. If the ordinance is adopted, Edmonds will be an outlier, and as a former council member, she would be very concerned if her city was going to be an outlier on something as important as this. She would be concerned about the risk of liability and exposure and she would want to know why the approach of all the other cities wouldn't work for her city. Ms. Allen said the proposed ordinance goes far beyond the aesthetic regulations allowed under the FCC order. While she appreciates the changes staff revealed tonight, the proposed 7-step hierarchy limits access to the ROW, not for issues of safety, but to try and compel wireless providers to pay rent to private property owners. State and federal law requires cities to provide reasonable access to the ROW for wireless deployments, and the current proposal is not reasonable. She noted that Revised Code of Washington (RCW) 35.99.040 specifically provides that a city or town shall not adopt regulations, specifically relating to the use of the ROW by a service provider, that either conflict with federal or state law or unreasonably deny the use of the ROW by a service provider. The recent FCC order, which is a federal regulation, describes as a barrier to entry, municipalities that restrict access to the ROW by imposing onerous zoning restrictions on small cell installations when other similar ROW installations are erected with simple building permits. She summarized that the 6-step hierarchy, which is not required of other users of the ROW, is an onerous requirement. Ms. Allen said the City has a number of problems in constructing the 7-step hierarchy. The first is that the City has no land - use authority to set lease rates for private transactions on private property. The requirement that the providers offer a certain dollar amount to private property owners for leasing is certainly outside of the City's scope of authority with respect to land use. On existing buildings, especially residential structures, there are significant safety issues because it is impossible to secure a small wireless facility from people who are not trained in Radio Frequency (RF) safety, such as children and teenagers who like to climb on roofs. Ms. Allen commented that long-term leases for freestanding poles on single-family lots near the ROW can interfere with the efficient transfer and sale of property. They also end up creating a new corridor of structures along the streetscape where there are no structures, fiber or power now. She said 3 to 6-story buildings were also mentioned as a good place for small wireless facilities, but that is not true. They are too tall for wireless antennas that need to be placed at 20 to 40 feet high, depending on topography and existing vegetation around the proposed small cell site. She summarized that there are a Planning Board Minutes February 27, 2019 Page 5 number of problems with requiring a provider to rule out all private property options before being allowed access to the ROW. In essence, it is a prohibition on using the ROW if the option they are required to explore is putting a pole in someone's front yard. The FCC order and state law require access to the ROW and she asked the Board to reconsider the ordinance. The providers would like to continue to work with staff to review the parts of the ordinance that are non- compliant with the FCC order or existing state law. The goal should be to create a workable ordinance that will provide an efficient path forward for the new technology in a way that respects the aesthetics of the community. Linda Atkins, Davis Wright Tremain LLP, Bellevue, said she was present to represent T Mobile. She echoed the concerns raised by Ms. Allen. She noted that, earlier in the day, she provided staff with a memorandum that outlines the specific legal concerns that T Mobile has with the locational hierarchy and the amount of effort and documentation that is required to move down the hierarchy. In addition to the points raised in the memorandum, she said T Mobile is concerned that an effort by a local city to direct carriers, as a matter of preference, to go on private property for the specific reason of generating income for private individuals raises some significant questions under Washington State Constitution, which prohibits a gift of public funds to private parties. Ms. Atkins pointed out that the Staff Report includes pictures that provide information about T Mobile's small cell design. She explained that all of the wireless carriers operate their own networks on their own frequencies. They each have their own equipment and technology that is used for the purposes of deploying small cells. The T Mobile design is different than what Verizon and AT&T are using. It is a unified enclosure that is approximately 3 cubic feet. It is basically a small box that has the antenna and radios all enclosed within the shroud. It is designed to be deployed on the exterior of the pole. On a metal pole, all of the cables can be inside the pole. The information provided in the Staff Report describes the dimensions of the shroud and what it looks like deployed on a metal pole. She emphasized that, as currently drafted, the proposed standards would not allow T Mobile's small cell design on any pole other than utility poles, as current Priorities 5 and 6 are the only options that are allowed to have exterior elements. While the City has the discretion and authority to establish aesthetic standards, it does not have the authority to tell the wireless provider what type of technology to use. She encouraged the Board to allow additional time for staff to work with them to develop design standards that will allow the T Mobile design on more types of poles. Ms. Atkins said the Staff Report also includes a detailed drawing and photograph of T Mobile's strand -mount design. The current proposal would limit the size of strand mounts to 1 cubic foot, which is not large enough to allow T Mobile to deploy its strand -mount design. They have found that some communities actually prefer the strand -mounted design because it doesn't attract any visual attention. Again, she encouraged the Board to give staff the time necessary to work with them to adjust the dimensional standards so that T Mobile is able to use the types of technology that is designed for use in its network. Lastly, Ms. Atkins referred to the proposed provisions related to macro facilities and commented that it is important that the Board understands that, although the industry is fully invested in the use of small cell technology to help networks function better, macro sites will still be the backbone of a network. They will still provide the primary coverage and carriers will need the ability to place macro facilities in all zones, particularly as there is more and more demand for wireless services. The macro sites work to provide the primary coverage, and the small cells work to help carry the traffic and make sure that the network functions in a manner that is most efficient and provides good service to customers. Rebecca Dever, Mountlake Terrace, noted that the Board's focus so far has been on the aesthetics of wireless facilities, but she has recently read studies about health concerns related to 5g networks in Europe. She can't say if the concerns relate to placement on buildings or placement on towers, but she asked the Board to take this concern under consideration and error on the side of caution. She doesn't necessarily want to see the facilities located on buildings. Julie Auni, Edmonds, said she has done research on the health impacts of 5g wireless facilities and was present to share her findings. She submitted a copy of her research and specifically made the following points: • From www.americansforresponsibletech.org. `Published science proves harmful health effects from exposure to RF microwave radiation. Studies show a wide range of biological affects at levels far below the current FCC exposure guideline. " RF microwave radiation affects everyone, and with 4g/5g installations in every neighborhood, Americans will not be able to escape continuous, involuntary exposures in their own homes, not to mention schools. Planning Board Minutes February 27, 2019 Page 6 From a letter written by David Carpenter M.D., Director, Institute for Health and Environment at the University of Albany New York. "Because wi-fi and radio transmission towers and smart meters all generate similar RF radiation, if the whole body is exposed, leukemia is a major cause of concern. If only the head is exposed, as in using a cell phone, one sees increased risk of local cancer such as brain cancer. Radio frequency electromagnetic fields have been rated by the World Health Organization as a possible human carcinogen. Last year, the U.S. National Toxicology program showed definitively that radio frequency radiation, like those from wi-fi and cell phones causes cancer in lab animals. • From the American Journal of Men's Health, "Mobile Base Station Tower Settings Adjacent to School Buildings Impacts Students' Cognitive Health (November 2018). "Significant impairment in Motor Screening and Spatial Working Memory was identified among the groups of students who were exposed to high RF-EMF produced by such towers. " • The Municipal Research and Services Center (MSRC) provides several sources of local governments who have set their own codes, including Sammamish, Renton and Snoqualmie in Washington State. These codes set forth location hierarchies and location standards for cell towers. Petaluma, California put forth a zoning code to make sure that small cell towers are located 500 feet from homes. Ms. Auni also provided a sample ordinance the City might want to use. She questioned whether small cell wireless facilities are needed in residential neighborhoods when most people already have wired or wireless wi-fi in their homes via a connection in the ground leading from the property line to the home. She also asked if people could opt out of having small cell towers on their road when they already have a connection to the web. Board Member Crank asked if the service providers would be beholden to the ordinance if it is passed as is with the aesthetic requirements, or if they could elect to not do any further upgrades in the community. City Attorney Taraday said the goal is to land on an ordinance that works for the industry and the citizens of Edmonds. It is not the City's goal to make it so difficult for the industry that they do not deploy here. Legally speaking, ordinances are presumed valid until some court determines they are not. If the industry has strong objectives to some element of the ordinance, they can challenge it. If the industry can establish that some aspect of the ordinance was not in compliance with the FCC order, they can request that a court preempt the ordinance. While a decision to no longer deploy in Edmonds is an alternative remedy, it seems unlikely, given the demographics of the City, that carriers would ignore Edmonds. They would rather sue and try to get the ordinance preempted. In the event that a carrier sues, Chair Cheung asked if there would be any other liabilities to the City other than having its ordinance preempted. City Attorney Taraday said his understanding is the primary risk to the City is that certain aspects of the ordinance would be invalidated, and there would be no significant financial risk. The City Attorney's fees are on a flat - fee basis. The City pays his firm the same amount regardless of whether or not they are defending litigation. He has an incentive to keep the City out of trouble because his firm bears the risk of litigation. Board Member Crank asked if her recollection from the last meeting is correct in that the poles identified in Option 2 (freestanding pole on zoned property) do not exist and the service providers would have to create them. Ms. McConnell said there are currently no freestanding small cell poles in Edmonds. Board Member Crank asked if they exist in the industry, and Ms. McConnell answered affirmatively. Board Member Crank asked if service providers would be required to pay for streetlight installations and if they would be City owned. Ms. McConnell answered that the providers would be required to pay for the poles. City Attorney Taraday added that the details of ownership would be worked out in the Master Use Permit, but he doesn't see any legal reason why the industry couldn't continue to own poles that are located in the ROW. There are already third -party utilities that own poles in the ROW. If the ordinance is passed, Board Member Crank asked if it would be applied to all wireless facilities going forward or if it would be retroactive. City Attorney Taraday noted that there are no small cell facilities in Edmonds now, but the ordinance would not be retroactive to apply to existing macro facilities. Planning Board Minutes February 27, 2019 Page 7 Chair Cheung asked what would happen to a front -yard monopole if the property owner decides to sell the home and the new homeowner doesn't want it. City Attorney Taraday explained that long-term leases run with the land. If a provider has a 30- year lease with a homeowner for a freestanding pole in the front yard, the lease would remain valid even if the property changes hands. Board Member Monroe asked staff to address why the Board can or cannot consider health concerns and cancer risk studies as part of the discussion. City Attorney Taraday said the City has no authority to address health concerns. If the Federal Government decides that RF emissions are safe, there is nothing the City can do about it. Board Member Monroe summarized that the scope of the hearing is to discuss aesthetics. Board Member Monroe asked the City Attorney about the likelihood of the City being sued. City Attorney Taraday said that, at this time, he is not aware of any aspect of the ordinance that would run afoul of federal law. However, he will continue to work with staff to evaluate the ordinance and have dialogue with the City's consultant and the providers to better understand their positions. Board Member Monroe raised concern about how the City would functionally enforce the requirement that providers contact property owners within 150 feet and demonstrate how it would not be feasible to locate on private property before being allowed to locate in the ROW. City Attorney Taraday said the scheme laid out in the code now contemplates that the industry would start with Priority 2. The process would be fairly streamlined and would not require long, drawn -out negotiations with property owners. Basically, the provider would send out "canned" offer letters to nearby property owners. If none of the property owners are interested, they can move on to Priority 3. Board Member Monroe pointed out the significant cost involved with digging a trench and installing the conduit and fiber optic power. City Attorney Taraday acknowledged that carriers will probably prefer Priorities 5, 6 and 7 because they will cost less, but the cost of implementing Priorities 3 and 4 would be about the same as Priority 2. He said he is not so concerned about what the industry's preferences are. He is interested in what the City's preferences are and what the Board's preferences are as representatives of the citizens in the community. The industry has already had its way with the FCC and gotten most of what they need. All the City needs to do is comply with the FCC order and look out for the interests of the community. Board Member Monroe observed that it is estimated that carriers could put up to 1,000 small cell facilities throughout the City, which means they will want to get through the process as quickly as possible using the least costly options. City Attorney Taraday said he anticipates that deployment will happen gradually, and he does not necessarily see that there will be 1,000 poles in the near future. Board Member Monroe said he can support the hierarchy approach, which will encourage providers to minimize the number of poles and space them in the most efficient way to get the best coverage. However, he would like to see some real -world examples of how the strategy would play out in individual neighborhoods around the City. Board Member Monroe said he would prefer Priority 5 over Priority 4 and he would support Priority 7, too. He said he has a hard time thinking they will get 1,000 new poles throughout the City, and most installations will end up occurring on existing power poles. City Attorney Taraday pointed out that many of the new poles can be designed to house more than one carrier. Board Member Monroe recalled previous discussion that only one carrier could locate on a pole. City Attorney Taraday said that is true for existing wood poles using cantennas at the top. However, new hollow poles for small cell facilities could be designed to host more than one carrier. It could also be viable to swap out existing wooden poles for hollow poles that can host more than one carrier, with all of the equipment and conduit inside. He summarized that there are feasible solutions to combine carriers into one location rather than adding a large number of new poles. Chair Cheung asked who would be responsible for coordinating contracts for multiple carriers that are located on a single pole on private property. City Attorney Taraday explained that, whether the pole is on private property or in the ROW, he envisions that the carrier that installs the pole would be the owner and maintain the rights to sublease it to other carriers to spread the cost. Board Member Monroe agreed with Vice Chair Robles that notification to the neighbors is important. He asked if it would be possible to add a notification requirement into the code. City Attorney Taraday commented that, if Priority 2 (locating on a freestanding pole on private property) is retained as part of the proposal, carriers would still be required to send letters to owners in the immediate vicinity. Mr. Clugston added that no public notice would be required for any of the installations since no land -use permit would be required. The permit would be an administrative permit with no notice required. Board Planning Board Minutes February 27, 2019 Page 8 Member Monroe asked staff to explore options for including some type of notification process. Mr. Clugston asked about the intent behind requiring notification. Board Member Monroe commented that the public has raised health concerns and they need to understand what is going on in their neighborhoods. Vice Chair Robles said he was surprised to see the industry coming to the hearing with such a heavy hand, and it is not doing anything to inspire him to look at their point of view. He asked why the industry cannot share antennas. There should be enough incentive for them to do everything possible to create a uniform design as opposed to every carrier having a different antenna and requiring that the community subsidize that view. He emphasized that the City is making an effort to bury utilities whenever possible, and they should not be obligated to allow antennas aboveground. He said he supports the use of hollow poles that are purposely constructed to be functional utilities in all communities. He explained that 5g technology will be used to enable things like autonomous vehicles, which the carriers will make a lot of money on. The community needs to address whether they want autonomous vehicles, IOT devices, drones, etc. in the future. These new uses are why land lines and hard lines will not be adequate. He summarized that they need to be truthful about what 5g will bring to the community and understand what they are getting into if they adopt the technology. Vice Chair Robles said he is interested in more collaboration amongst the various carriers. If they can collaborate to come to public hearings with the same points of view, they can certainly collaborate to provide a solution that meets the needs of the community. Continuing to hang equipment off poles because that's the current approach is not enough of a reason to support their proposed changes. He said he appreciates the City's attempt to consolidate facilities and put a hierarchy in place, and he would like to see it continue. Board Member Rubenkonig said she requested the City Attorney's presence at the hearing to make sure the discussion stays on task. The City was given a directive by the FCC that provides the scope of what they are allowed to address. While health issues have been raised, it is not something that can be addressed at the City level. Board Member Rubenkonig noted that the language in the provisions related to freestanding small cell placement requirements uses the phrase, "so as not to significantly create a new obstruction to property sight lines. " She asked if "property sight lines" would apply to the view while driving down the road or if it would include preserving views of the mountains or the Sound. Ms. McConnell said the intent of the provision is to encourage freestanding small cell facilities to be placed towards the property line where they will not obscure the sight line from a front window, etc. Board Member Rubenkonig suggested that perhaps more words could be added to make this intent clearer. Board Member Rubenkonig expressed her belief that design criteria that addresses how the facilities will appear to people who are looking at them has been addressed as much as possible by the proposed ordinance. Now she is looking towards the future. As a participant in the Energy Management Program, she has heard discussions about the vulnerability of the substations that are located throughout the community. In many cases, security is quite low. She asked if security issues have been raised in discussions with providers. Mr. Clugston said security is not something discussed in the ordinance, but it is likely a concern of the industry. Board Member Rubenkonig said she is concerned that facilities be designed in a way that provides the most service, but also has adequate security to reduce vulnerability. Board Member Rubenkonig commented that, as proposed, permits for wireless facilities would be administrative decisions made by staff. She asked if a process would be in place for the industry to appeal a decision made by City staff. Mr. Clugston said the appeal process would be the same as for any other administrative permit. It would be a Land Use Permit Appeal (LUPA) and not a local appeal process. Board Member Rubenkonig asked if there are any provisions in the ordinance for approving alternative designs or measures outside of the proposed regulations. She cautioned against getting stuck by old technology in just a few years by limiting installations to those specifically called out in the ordinance. Mr. Clugston said there is some discretion in the ordinance for Director approval looking at small carrier designs, but he suggested that they review the ordinance again to make sure it is properly and adequately addressed. Board Member Rubenkonig agreed that would be appropriate to allow for innovations in technology moving into the future. Board Member Rubenkonig suggested that language be added to the ordinance to address new technology for which the proposed guidelines might not be feasible or might limit options that are a better fit for the community. The ordinance should Planning Board Minutes February 27, 2019 Page 9 acknowledge that the provisions represent the City's best approach given current technology, but recognize that technology evolves over time. Mr. Clugston said he believes the "whereas" clauses in the ordinance get at this issue. Right now, the ordinance is intended to deal with 4g that exists in the real world, but 5g is coming and they will likely deal with that for the next five years. At some point, they will have to revisit the issue. His hope is that with the proposed language, and some additional discretion, the ordinance can be functional for the better part of a decade. Chair Cheung expressed his belief that Priorities 1 and 2 should always be options if carriers want to negotiate with private property owners because they believe it is the best place for the facility to be. However, he questioned the benefit to the public of requiring the facilities to be on private property versus ROW. He suggested it would make more sense to locate them in the ROW because he considers wireless to be a type of utility. It also makes more sense for the large wireless corporations to negotiate with the City rather than individual property owners who may not understand what they are agreeing to. While he understands the City's preference to have the facilities located on private property, he does not think it necessarily helps the community. Again, he suggested that Priorities 1 and 2 should be options and not requirements. He said he doesn't have a strong preference about whether the facilities in the ROW are located on streetlights or on the side of poles; it depends on the technology. He would like to put more trust in City staff to negotiate with the providers and not have to worry about his next -door neighbor deciding to allow a carrier to locate in his yard. He is concerned that allowing them to be placed on private property could become confusing and messy. They would be more consistent if the City is responsible for deciding where they can be located. Chair Cheung said he does not believe it is realistic to think that a lot of property owners will want to have a pole placed in their yard because the benefit would be no greater than if it was placed in the ROW. In the end, carriers will end up working with the City in most cases to place the facilities within the ROW, and requiring them to send out letters to private property owners seems like extra work for nothing. With respect to the suggestion that the preference for locating on private property has something to do with where the City wants the money to go, City Attorney Taraday clarified that is not what is driving the preference. The City does not care whether the money goes to the PUD or the private property owner who hosts a facility. What is driving the preference is that the ROW is already really crowded, both above and underground, with existing linear utilities that need the continuity of ROW. A small cell pole is not a linear utility; it is a spot utility. It takes a spot of space, and that's it. While small cell facilities must tap into fiber and power connections, they do not have to be in line with these connections to have continuity. They can function just as well outside the ROW as inside the ROW, especially if located within the front 5 feet of the property line. City Attorney Taraday acknowledged that the City does not know how many property owners will agree to host a small cell facility. However, in talking with the consultant, there is a significant drop in single strain with distance. The small cell antennas are not powerful, and the further you get away, the weaker the signal. He anticipates there will be enough people who will value having the best service on the block that they will invite them onto their property in exchange. The monetary benefit would be very small and would not likely be the motivator. The motivation will come from wanting the best signal on the block. Vice Chair Robles agreed that carriers will want to have the ability to locate in optimal locations, including both ROW and private property. Board Member Crank recalled that, at the last meeting, there were some strong stances from both the carriers' representatives and staff. She is encouraged that there have been subsequent conversations between the staff, carriers and consultant that have led to some collaborative changes. She hopes that more inroad can be made as the ordinance moves forward to final adoption. She voiced concern that the window for adopting the ordinance was short and the City had huge aspirations, but there had not been any conversations with the carriers or the consultants. This appears to be happening, and she is hopeful the ordinance will get to a point where it is amenable for all. Having an all or nothing stance is never a good place, especially if decisions are made that result in litigation. If she makes the decision to recommend approval of the aesthetic aspects of the ordinance, it will be with the understanding and hope that inroads continue to be made to reach a decision that meets the needs of all sides. Board Member Rubenkonig said the City is faced with implementing a service that the FCC has deemed to be in the best interest of the public. The City's usual process allows people an opportunity to voice their concerns about land -use decisions, yet the FCC's direction skips over that public process. Before approving the ordinance, the City should provide Planning Board Minutes February 27, 2019 Page 10 clear reasoning for why it is allowing one person in the neighborhood to benefit from a pole in his/her yard without giving the neighbors an opportunity to voice opposition. City Attorney Taraday explained that there are a number of permits in the City where no notice is required. Creating a public process in this situation would be a problem given the short 60 to 90-day turnaround. In addition, as currently drafted, there is not a lot of discretionary language in the ordinance that would benefit from comment on an application. While he cannot say there would be zero value in such comments, it is hard to see how they would significantly inform the administrative decision on the permit. Board Member Rubenkonig asked the City Attorney to speak to the fact that the FCC has more authority in this decision making that the City cannot oppose. They have already decided this is for the greater good of the community. City Attorney Taraday said the FCC has taken the clear position that small cell deployment throughout the United States will benefit the public in a significant way. For that reason, the FCC has knocked down just about every possible barrier to that deployment. The City is left with just a few aesthetic tools, but not a lot of broad, police -power authority to regulate the land use. Chair Cheung closed the public hearing. Mr. Clugston commented that, at this point, the Board could deliberate further and ask additional questions. If the Board supports the changes made so far, they could send the bulk of the ordinance on to the City Council with a note of additional suggestions and concerns. The interim ordinance was a good starting point, and some refinements have already been made. He anticipates more changes as the ordinance moves forward to the City Council. Board Member Crank asked if there will be ongoing conversations with the service providers that might result in changes to the ordinances. Mr. Clugston answered that staff will continue conversations with the service providers and their own technical consultants. Board Member Crank commented that if the Board supports moving the ordinance forward as currently drafted, there is a possibility that it will be changed between now and when it is presented to the City Council. Again, she said she is hoping that the ordinance gets to a more amenable balance between the service providers and the City. While the current proposal is fine from an aesthetic standpoint, she is concerned that it may not address the needs of the service providers. Board Member Crank said she would support switching Priorities 4 and 5, as recommended by Board Member Monroe, which would favor attaching to an existing pole over adding a new pole. She said she is also concerned about requiring the facilities to locate on private property as the first priority. Placing this onus on property owners could result in a ripple effect that needs to be considered before moving forward. Vice Chair Robles said he would be in favor of switching Priorities 4 and 5 if the carriers had a common system, but the benefit of an individual hollow pole is that multiple carriers can locate in a single device. He would not want to see three cans replacing one pole, but that is what the incentives of the industry are driving towards (each with its own can on separate poles). If the sweeping priorities are identified, the details can be left to the City to negotiate with the carriers. Putting aside the technical components and how the ordinance matures and develops, Board Member Monroe asked if the Board would support switching Priorities 4 and 5 based on aesthetics only. Vice Chair Robles said he likes the priorities as currently recommended by staff for the reasons he stated earlier. Chair Cheung said he does not think anyone can say which option would work better. At this time, it is not entirely clear if more than one carrier can locate on a single pole. Notwithstanding the City's persuasive argument that they should consider private property adjacent to ROW first, Board Member Rubenkonig cautioned that there are issues of site development that the Board has not even started to address. For example, will there be setback requirements for monopoles and small cell facilities in the front yard? Also, how will locating the facilities on private properties limit opportunities for future development of a property? Mr. Clugston commented that facilities in the ROW currently have no setback or height limitations, but the City could apply height limitations as per the FCC's order. As currently proposed, facilities on private property must be within 5 feet from the property line to keep the freestanding poles in line with existing utility poles. The height limit would be 30 feet. He advised that because the facilities would be located so far forward on a lot, they would not have a significant impact on future development. Board Member Rubenkonig noted the small lots in Edmonds where development gets very tight. Mr. Clugston advised that the minimum front yard setback is 20 feet for single-family and 15 feet for multi -family. It may not be appropriate for a small cell facility to locate on properties in zones where there is no setback requirement. Board Member Rubenkonig asked if the City could Planning Board Minutes February 27, 2019 Page 11 guarantee that a facility would not impact the development of the site. Mr. Clugston answered no, but that would be true for anything that is placed on a site. He said it is up to the property owner to figure out whether it makes sense or not, but he cannot imagine a situation where a facility would limit a future property owner's ability to do something on his/her property. Board Member Rubenkonig commented that there are so many items that the Board does not have time to address before a final decision is made relative to the ordinance. However, it is important to identify potential issues that the City might have to address at some point in the future. BOARD MEMBER MONROE MOVED THAT THE BOARD FORWARD FILE NUMBER AMD20190010 TO THE CITY COUNCIL WITH A RECOMMENDATION OF APPROVAL WITH THE FOLLOWING CONDITIONS: • ELIMINATE PRIORITIES 1 AND 2 (LOCATING ON PRIVATE PROPERTY) AS PRIORITY LOCATIONS. • PLACE PRIORITY 5 BEFORE PRIORITY 4 IN THE PREFERENCE HIERARCHY. • IF POSSIBLE, INCORPORATE A PUBLIC NOTIFICATION PROCESS TO LET PROPERTY OWNERS IN THE VICINITY KNOW WHEN A NEW SMALL CELL INSTALLATION WILL BE LOCATING CLOSEBY. • ADD LANGUAGE THAT GIVES ADDITIONAL DISCRETION TO THE DIRECTOR TO APPROVE ALTERNATIVE DESIGNS OR MEASURES OUTSIDE OF THE PROPOSED REGULATIONS. CHAIR CHEUNG SECONDED THE MOTION. Board Member Rubenkonig questioned the need to require public notification if there is no public comment process in place to feed the comments and concerns. Although it seems awkward that the City would allow the installations without public notification, the City Attorney has stated that there are other land -use permits for which there is no public process. Board Member Monroe said the intent is to replace the notice to property owners that would have occurred with Priorities 1 and 2. Chair Cheung agreed that no public notice should be required for small-scale installations on existing poles in the ROW, but the situation is different if new poles are placed on private property in single-family neighborhoods. A new streetlight could impact an adjacent property. While he understands that an adjacent property would not be able to stop an installation, the City should at least let them know when something is happening next to them. Chair Cheung said he does not know enough about the technology to have a strong opinion about which type of installation would be best. However, aesthetically, he supports Board Member Monroe's recommendation to swap Priorities 4 and 5 because he would rather see fewer new freestanding poles. If at all possible, he would like the antennas to be added to existing structures, even if they are on the wire. Board Member Monroe pointed out that placing the antennas on existing wires creates another safety hazard for cars. THE MOTION CARRIED 3-2, WITH BOARD MEMBERS ROBLES AND RUBENKONIG VOTING IN OPPOSITION AND BOARD MEMBERS CHEUNG, CRANK AND MONROE VOTING IN FAVOR. CHAIR CHEUNG MOVED TO CLARIFY THE MOTION THAT PRIORITIES 1 AND 2 SHOULD BE OPTIONS AND NOT REQUIREMENTS. BOARD MEMBER MONROE SECONDED THE MOTION, WHICH CARRIED BY A VOTE OF 3-0 (Board Members Robles and Rubenkonig did not vote on this motion) Priorities 1 and 2 should be options and not requirements REVIEW OF EXTENDED AGENDA Chair Cheung announced that the March 13' agenda will include a presentation on the City's Sustainability Initiatives and a Quarterly Report from the Parks, Recreation and Cultural Services Department. The Planning Board's retreat is currently scheduled for March 27th. Planning Board Minutes February 27, 2019 Page 12 PLANNING BOARD CHAIR COMMENTS Chair Cheung did not provide any additional comments. PLANNING BOARD MEMBER COMMENTS Board Member Crank announced that Paine Field Airport will begin operating commercial flights on March 4'. ADJOURNMENT The Board meeting was adjourned at 9:22 p.m. Planning Board Minutes February 27, 2019 Page 13