Do the right thing in the public right-of-way

Dave Britton, P.E.
Principal Civil Engineer
City of Santa Monica, California

Is it right to manage the right-of-way for wireless facility installations? The City of Santa Monica, CA found out the answer is a resounding yes! Through a process of local agency master planning, wireless industry technology research, public and utility company input, identification of common goals and a desire to provide the latest in telecommunications services to the public, Santa Monica City Council adopted a comprehensive ordinance to do just that in July 2004. Now that the ordinance has been in effect for over a year, that effort is bearing fruit.

Why manage the public right-of-way?
In 1998, the City of Santa Monica adopted a Telecommunications Master Plan. The staff report to City Council stated the goals of right-of-way management as "protecting the public health, safety and welfare; coordinating construction with pedestrian, bicycle, and vehicular traffic in the work zone; avoiding repetitive street cuts whenever possible; minimizing private business disruption; preventing unnecessary financial burden to the taxpayers of Santa Monica due to street cut degradation of the pavement; ensuring the long-term structural integrity, ride quality and aesthetic properties of the existing infrastructure; enhancing competition among telecommunications providers; and promoting potential partnerships between the City and private utility companies."

Historically, the public right-of-way has been used for transportation (pedestrian, bicycle, motorcycle, vehicular, public transit) and underground and overhead utilities. With the advent of the Federal Telecommunications Act of 1996, fiber optic technology made it possible for a wide variety of two-way communications involving high-speed broadband for interactive voice, data and video communications.

In Santa Monica, placement of new antennas and associated equipment for wireless communication uses was previously limited to private property installations, either in commercial areas or residential neighborhoods. Applications for these types of installations may be subject to building and conditional use permit requirements; and in some cases Planning Commission or City Council review on appeal. If successful, the wireless utility company would need to negotiate a lease with the private property owner, a costly option over time for the wireless providers, a cost that may be passed on to the customers in increased monthly fees.

Benefits of using the public right-of-way for wireless installations
According to the Cellular Telecommunications & Internet Association, since 1996 the number of wireless subscribers has increased from 38 million to 148 million, the number of cell sites from 25,000 to 148,000, accounting for 400 billion wireless minutes used in 2003 alone. Multiple cell phone families are now the norm. In addition, the demand for wireless high-speed Internet and e-mail access is rising at a significant rate. Also, since a large percentage of emergency calls are made from cell phones, there is a pressing need for expanded cell phone coverage that would include a locator (GPS) device with e-911 capability.

As an alternative to the placement of antennas and associated equipment on private property, the wireless carriers sought to move into the public right-of-way. According to the industry, since the public was in dire need of broader coverage and increased capacity, the public right-of-way was the next logical step for location of these facilities as it provides a natural grid-like network of roads and alleys ideal for placement of their antennas and other equipment. Prior to approving this request, the City needed to draft an applicable ordinance, obtain feedback from the utilities and the public and seek City Council approval. Several guiding principles steered City staff as they went about this task:

  • To preserve the structural integrity, reliability, performance, safety, ease of maintenance and aesthetic quality of the City's right-of-way, including preserving view corridors, discouraging visual blight and clutter;

  • To address the long-term management of the public right-of-way;

  • To address concerns about the City's public works contractors or others digging in the right-of-way encountering unknown utilities and the potential for damage to those facilities;

  • To ensure that the manner in which the right-of-way is accessed minimizes disruption to the community, including vehicular traffic, pedestrian flow, public transit, on-street parking and business uses;

  • To ensure utilities (including fiber-optic and wireless telecommunications companies) competitively neutral and non-discriminatory access to the right-of-way; and

  • To ensure compliance with federal, state, county and local laws allowing access to the right-of-way.

The City of Santa Monica has local authority both under the 1996 Act and California State Law to regulate the time, place and manner of these types of installations. The City's ordinance focused on this type of regulation.

Ordinance adoption process and key elements
The City was open to input from both the general public and wireless industry, even prior to preparing a draft ordinance. A meeting was noticed and held for the sole purpose of asking the question, "What do you want within a right-of-way management ordinance that would include a provision to allow for the installation of wireless facilities and what concerns do you have regarding such an ordinance?"

The City heard loud and clear from industry representatives that they wanted an ordinance that had a streamlined permit process with a minimum of specific requirements, and allowed them to accomplish their goals of coverage and capacity at a reasonable installation cost. They also expressed concern that the permit process be handled administratively, rather than before large Boards and Commissions. The public, including City staffers present, shared that the disruption to the public during construction needed to be minimized; that there may need to be some flexibility with the exact location of antennas and equipment cabinets; and that the aesthetic impact of the installation needed to be minimized.

From this initial meeting, staff went about the task of drafting an ordinance, following a systematic procedure of 1) reviewing existing ordinances, 2) site visits to other public agency installations, 3) reviewing power pole, streetlight and other potential locations for antennas in the City, 4) checking potential above- and below-ground locations for power metering and electronic equipment cabinet placement, 5) meeting with manufacturers of equipment and/or consultants specializing in these types of installations to determine what's feasible, 6) developing a matrix of ordinance provisions, and 7) preparing a draft ordinance.

One of the prime concerns by the City that needed to be addressed in the ordinance was aesthetic integrity. With that in mind, certain design standards were included. These mandate that all installations be designed in a manner which camouflages them from adjacent properties and the general public as well. Strategies that could be used to accomplish this may involve under-grounding of equipment boxes, integrating facilities with neighboring structures, landscaping, painting, or downsizing if feasible.

To address the issue of minimizing the potential for hitting unknown underground utilities, the ordinance requires that all utility providers submit to the City "network diagrams" of all their existing installations in Santa Monica and update those plans once a year showing any new work. The City will then incorporate this information into their GIS mapping and database system for future use.

As an incentive to applicants to encourage administrative review and approval, the ordinance provides for a "wireless minor permit" category. This type of permit would kick in if the design of the installation is visually unobtrusive and blends in with the existing improvements in the right-of-way and all other conditions of the ordinance are met. The alternative to the wireless minor permit category is a wireless major permit. This process is more involved involving public input, a formal review, and adoption of findings by the Public Works Director. If the permit is denied, the applicant would have the option of appealing to the City Council.

The City also allows collocation and joint trenching of facilities, since one particular location is often ideal for multiple providers. City staff make themselves available to meet with wireless carrier representatives ahead of submittal of the permit application for the purpose of analyzing in the field possible sites for the antennas and equipment and reviewing the design standards and other provisions of the regulations. This has proven to be very beneficial to the carriers and the City as plan-check corrections are minimized and the applicant has a clearer understanding of what ordinance compliance entails.

Aftermath
Since adoption of Santa Monica's right-of-way management ordinance in 2004, multiple wireless carriers have placed their facilities in the public right-of-way. All of these permits were approved administratively. With the potential for Wi Fi and Wi Max technologies being built in public rights-of-way nationwide in the near and long term, Santa Monica has a valuable tool that perhaps other local municipalities could draw upon when needed.

Copies of the City of Santa Monica's right-of-way management regulations can be viewed online at http://codemanage.com/santamonica/index.php?topic=7-7_06&expand=1. Since 1997, Dave Britton has been assigned the task of overseeing management of the public right-of-way as it relates to wireless and wireline telecommunications installations in Santa Monica. He can be reached at (310) 458-8979 or at dave.britton@smgov.net.

City of Santa Monica
Right-of-Way Management Regulations

What's included?

  • Permit application contents/fees
  • Proof of legal authority to occupy the public right-of-way
  • Permit scope and duration
  • Restoration of pavement surfaces
  • Traffic control plans
  • Protection of urban forest
  • Emergency permits
  • Blanket permits
  • Explanation of wireless major and minor permit
  • Design standards
  • Private property option
  • Maintenance of facilities
  • Network diagram submissions
  • Coordination with other projects in the public right-of-way
  • Public notification
  • Handling public inquiries
  • Insurance provisions
  • Utility marking
  • As-builts
  • Hardship exemption procedure
  • Local franchise applicability