City to consider impact of federal law at Aug. 12 meeting
City to hold Spectrum Act public meeting
■ 5:45-7:15 p.m. Wednesday, Aug. 12, Mission Valley Library, 2123 Fenton Parkway (next to IKEA)
■ Comments can be mailed to: A. McPherson, City of San Diego Development Services Center 1222 First Ave., San Diego, CA 92101 or e-mail to: DSDEAS@sandiego.gov
La Jolla Town Council to discuss Spectrum Act
■ 5 p.m. Thursday, Aug. 13, La Jolla Rec Center, 615 Prospect St.
City to consider impact of new federal law at Aug. 12 public meeting
Recent city-approved installations of a wireless antenna and related equipment in one Mt. Soledad neighborhood and a 49-foot-tall SCADA pole for San Diego Gas & Electric’s wireless communications — which both had area residents up in arms — may become commonplace due to a new federal law which relaxes local oversight of such facilities.
A group of La Jollans are expressing concern over a provision inserted into a seemingly benign piece of federal legislation that strips the ability of San Diego officials (and those of other local governments) to regulate cellular communications equipment. They say the provision, known as the Spectrum Act, gives the wireless industry free rein to install poles, antennas and related equipment in excess of La Jolla’s 30-foot height limit and to disregard other previously mandated aesthetic considerations — all without public notice.
The City of San Diego is proposing to amend its Land Development Code and Local Coastal Program to adopt provisions of the Spectrum Act, which was inserted into the Middle Class Tax Relief and Job Creation Act of 2012, and signed into law by the president in February 2012. Last fall, the Federal Communications Commission (FCC) issued an order codifying Spectrum Act provisions.
La Jolla attorney Robert “Tripp” May, who specializes in telecommunications infrastructure, policy and contracting law, co-wrote an amicus brief (friend of the court) for Montgomery County, Maryland, which filed suit against the FCC this year over the Spectrum Act.
Ostensibly, the purpose of the Spectrum Act, May said, was to develop and fund FirstNet, a network of communications technology for first responders and emergency workers, though it includes a statute — section 6409(a) — that prevents state or local governments from denying “any eligible wireless facility request for a modification to an existing wireless tower or base station that does not substantially change the physical dimensions of such a tower or base station.”
San Diego’s Development Services Department (DSD) will hold a public scoping meeting 5:45 p.m. Wednesday, Aug. 12 at the Mission Valley Library (2123 Fenton Pkwy.) to solicit public input on a draft supplemental environmental impact report (SEIR) on its proposed Spectrum Act amendments.
According to the meeting notice published on the city clerk’s website July 17, “under the Spectrum Act, an eligible facility may exceed or deviate from some development regulations, including but not limited to, the Coastal Zone 30-foot Height Limit Overlay, zone height limits, zone setback limits, historic preservation, and environmentally sensitive lands through a Process One approval” — which provides no public notification or opportunity for public input.
The notice said the city has determined that, per California Environmental Quality Act (CEQA) guidelines, the Spectrum Act “may potentially result in environmental impacts in the following areas: visual effects/neighborhood character and cumulative effects.”
After the SEIR is finalized, the Spectrum Act amendments will go to the San Diego Planning Commission and San Diego City Council for a vote (likely this fall), although the July scoping act notice notes “the regulations are already in effect.”
The city’s DSD did not respond by press time to a query about whether the city is already issuing wireless communications permits under the Spectrum Act, though an online form can now be downloaded at the DSD’s website to apply for a Spectrum Act permit — sandiego.gov/development-services/pdf/industry/forms/ds420.pdf
La Jolla Community Planning Association (LJCPA) board member Frances O’Neill Zimmerman is among those concerned about the appearance of cell towers and related equipment mushrooming in neighborhoods without regard to appearance, width or height, and with little or no notice to residents.
“People are completely unaware that wireless companies are getting carte blanche for their handiwork, and that it is about to unfold on a huge scale,” she said. “It is clearly a giveaway to the wireless industry, pure and simple, and the rationale is the need for better coverage for our many devices, no matter the price to communities’ hard-won zoning regulations.”
May said earlier this year the FCC created “a whole new set of rules” giving the Spectrum Act “its teeth.”
“Local governments can’t do much about it,” he said. “If you don’t act within the 60-day time frame from when the application for such a request is submitted, it doesn’t matter whether (what the company is proposing) was covered under the Spectrum Act) or not; the rules just assume that it was approved and the carrier can go out and build without any other kind of review or oversight, which, frankly, might also include (eschewing) building permits or environmental review. The rules aren’t very clear on that.”
May said Montgomery County’s lawsuit, to which the City of San Diego is a party via its membership in the League of California Cities, essentially challenges the constitutionality of the Spectrum Act and the FCC’s order.
“If it is struck down, you can bet that the wireless industry and the FCC would appeal this up to the Supreme Court where we’re not quite sure what would happen,” he said.
In the meantime, May added, “Local governments kind of have to look at these rules and regulations that may not be constitutional and may not be adopted lawfully as real hard and fast federal regulations that they need to deal with right now. That’s why governments like the City of San Diego and other local municipalities all across the country are amending their land use codes to reflect the changes that came out of that order — because at the end of the day, they still need to comply with the rules that are in effect right now.
“This is a difficult time, because local governments are kind of getting it from the residents who don’t like the way these wireless facilities are being rolled out without notice and public hearing, and they’re also getting it from the federal government, who’s telling them they have to do this within a certain period of time, otherwise we’re going to take away all your authority to regulate them, period.”
May also pointed to state legislation now before the senate, Assembly Bill 57 — which opponents have dubbed “a land grab by the wireless industry.” AB 57 would essentially also give wireless communications providers carte blanche when establishing new sites, May said.
“The rules are kind of making the walls close in on local governments, who are trying to do whatever they can to preserve as much discretionary authority and as much control over these facilities as the residents are demanding,” he said.
Spectrum Act in play on Exchange Place?
Lynda Pfeifer, a spokesperson for the city’s Development Services Department, did not say whether a 49-foot-tall SCADA pole installed May 20 by SDG&E was approved via the Spectrum Act, though earlier told the Light, “At present, the city does not enforce SDG&E to conduct public outreach. SDG&E conducts their business within our PROW (public right-of way) as stipulated within the Franchise Agreement they have with the City of San Diego.” (Read more about that installation at bit.ly/wirelessdebate)
In an e-mail, SDG&E spokesperson Amber Albrecht said the company’s SCADA (supervisory control and data acquisition) devices can not be installed on poles lower than the 49-foot-tall pole installed on Exchange Place (off Torrey Pines Road), adding that SCADA devices act as “smart switches ... to enhance reliability and safety, allowing remote control of the distribution system from a centralized control room. …
“During an outage, these smart switches can route power around problem areas and quickly restore service to many customers prior to dispatching crews to the field,” Albrecht said. “They also provide real-time information about the condition of the electric grid. The utility has installed SCADA capabilities that can benefit 90 percent of customers in our service territory.”
Albrecht said SCADA technology can help the grid “heal itself automatically” during power outages by detecting a problem immediately and determining the best way to reroute power to the area.
SDG&E did not respond to questions about how many SCADA poles it intends to install throughout La Jolla and the City of San Diego.
Meanwhile, one Exchange Place resident concerned about the pending onslaught of Spectrum Act installations, who preferred to remain anonymous, said she learned that the city plans to install its own SCADA technology on Exchange Place, adjacent SDG&E’s pole, albeit at a height of 30 feet. The pole is related to Sewer & Water Group Project 820, though the installation was not referenced in the city’s environmental document issued for the project.
A city e-mail obtained by the Light states the SCADA technology would transfer data to a San Diego Water Department facility at 2797 Caminito Chollas in San Diego’s Oak Park neighborhood. The Light is awaiting a response from the city in regard to its exact use for the technology.
The Spectrum Act amendments have been added to the LJCPA’s agenda for discussion during its Aug. 6 meeting, 6 p.m. at La Jolla Rec Center, 615 Prospect St.
In April, the San Diego Community Planners Committee, which is chaired by LJCPA trustee Joe LaCava and includes the LJCPA, voted to “not support” the adoption of the Spectrum Act amendments, stating that it understands the city’s intent is to meet the provisions of the federal law, though it does not support those provisions.
The La Jolla Town Council will also take up the issue, 5 p.m. Thursday, Aug. 13 at La Jolla Rec Center. State Senator Marty Block will be in attendance to address AB 57 and other La Jolla issues.