Los Altos council takes more time to mull small-cell node appeals from Verizon, AT&T

Local residents who attended last week’s special hearing of the Los Altos City Council hoping for a resolution to the request by Verizon and AT&T to install 5G small-cell nodes across the city left disappointed.

The council voted unanimously to continue the item – at an undetermined date – after receiving new information on the cell providers’ appeals of an earlier decision to deny the request. But even after the vote to continue the hearing, three residents still wanted a turn at the podium to voice their opposition to placing small-cell node facilities on existing utility poles around Los Altos.

All Los Altos residents and property owners within 1,000 square feet of the 13 addresses Verizon and AT&T proposed for small-cell node facilities were notified of the Oct. 29 hearing, scheduled to enable the council to consider appeals from the cell providers after their applications were rejected in mid-September.

At the start of last week’s hearing, City Manager Chris Jordan said Verizon submitted additional information several days earlier about its application to install equipment at 155 Almond Ave. AT&T followed suit a day before the hearing, providing further details about its 12 applications – at 141 Almond Ave., 687 Linden Ave., 421 Valencia Drive, 33 Pine Lane, 49 San Juan Court, 791 Los Altos Ave., 98 Eleanor Ave., 182 Garland Way, 491 Patrick Way, 300 Los Altos Ave., 130 Los Altos Ave. and 356 Blue Oak Lane. 

Because the new information surfaced so close to the hearing, Jordan and his staff believed they did not have enough time to analyze the new material, which also meant council members did not have the benefit of city staff’s review of the appeals.

“Prior to this evening, staff met with representatives of both AT&T and Verizon and suggested to delay this to a later date,” Jordan said. “Both have agreed to a continuance, therefore they will not necessarily have to have a hearing this evening.” 

City Attorney Chris Diaz asked Mayor Lynette Lee Eng to call the Verizon and AT&T representatives to the microphone and confirm their willingness to return at a later date, and each representative agreed to extend the time frame 30 days. Three of the five local residents set to speak still insisted on weighing in, despite Lee Eng advising them that their impact would be greater if they held their fire until the council is ready to rule on the appeals.

Residents Deidre Woo, Sam Madani and Melissa Diaz all expressed their opposition to the small-cell nodes for safety reasons and asked the city to conduct its own study on radiation that could be emitted by the technology. Most official regulatory agencies deny a connection between 5G technology and diseases like cancer.

Playing defense

In their appeals, both AT&T and Verizon alleged that in denying their applications via an emergency ordinance and resolutions Aug. 5, the city of Los Altos violated the Telecommunications Act of 1996, applicable Federal Communications Commission regulations and state law granting corporations the right to place equipment along any right-of-way. Representation for AT&T contended that the FCC’s Small Cell Order of 2018 and the company’s due-process rights were breached. Representation for Verizon reminded city officials that the FCC’s order relating to its application was approved Jan. 14 and took effect April 15. The ordinance and its resolutions were enacted after the FCC’s order, and after both companies’ combined 13 applications had been submitted to the city for review.

In a legal memorandum defending the city’s position, Diaz and his colleague at Best Best & Krieger, telecommunications attorney Gail Karish, cited case law that states government agencies could implement new ordinances retroactively as long as they do not deny any parties with a stake in the matter their right to due process. Therefore, Diaz and Karish said, a zoning ordinance could be applied retroactively “to require the denial of an application for a permit or the nullification of a permit already issued, provided that the applicant has not already engaged in substantial building or incurred expenses in connection therewith.”

Diaz and Karish said in the memo that while older case law “suggests” telecommunications companies’ right to place equipment in the public right-of-way, a 2019 case involving the city of San Francisco and T-Mobile “affirms that local governments have broad discretion to deny such use if a proposed facility will incommode the public use, including based on aesthetic considerations.” They also said the FCC Small Cell Order of 2018 does not impose deadlines for implementation but “requires that aesthetic standards for small wireless facilities be: (1) reasonable; (2) no more burdensome than those applied to other types of infrastructure deployments; and (3) objective and published in advance of the application being submitted.”

All of the applications being appealed were under review by city staff when the urgency ordinance took effect in August, Diaz and Karish said, and Jordan offered Verizon and AT&T the opportunity to submit additional information as supplementation before taking action on the pending applications. The team quoted a Palos Verdes Estates case against Metro PCS to determine that there is “no precise formula for determining when the ‘substantial evidence’ requirement is met.”

“Rather, a reviewing court will affirm when a denial is supported by ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’ which includes discussion of aesthetic considerations,” the memo states, proceeding to quote the court opinion. “Local government must have ‘less than a preponderance, but more than a scintilla of evidence.’”

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