Santa Barbara


Negotiating Revised City of Santa Barbara Telecommunications Muni Code

Communications Listed in Chronological Order

November 30, 2020

To:
Mr. John Doimas
City of Santa Barbara
Assistant City Attorney
740 State Street, Suite 201
Santa Barbara, CA 93101
jdoimas@santabarbaraca.gov
805-564-5326

cc:
Ariel Calonne email, City Attorney
Lisa Clenden email
Paul Casey email, City Administrator/Clerk/Treasurer
Pamela Antil email, Assistant City Administrator

Dear Mr. Doimas,

[City Administrator/Clerk/Treasurer, Mr. Paul Casey, will you please place this email correspondence into the public record re: the review of the proposed 2020 revisions to the City of Santa Barbara Wireless Telecommunications Facilities Code (“WTF-Code”). Please print this email, the appendices of this email and the information at the links in this email and place all of that information in the paper file, as well as making the information subject to any CA Public Records Act Request? Thank you for doing so.]

Mr. Doimas, I am writing to follow up on the short phone call you and I completed around Noon today. Thank you for taking my call and confirming the following details are true:

  • You had committed to a number of Santa Barbara residents to give them the proposed 2020 revisions to the City of Santa Barbara Wireless Telecommunications Facilities Code (“WTF-Code”) by Fri Nov 20, 2020.
  • Today is November 30, 2020 — ten days later — and you still unwilling to give Santa Barbara residents access to this proposed WTF-Code today.
  • The reasons you cited for this additional delay are the following:
    1. The need to complete a press release
    2. The need to write up the ways that the public can meet with you (and others) via Zoom to provide their input into the proposed WTF-Code
    3. The need to follow (some unnamed party’s) direction that it is OK for you to further delay the release of the proposed WTF-Code to Santa Barbara residents. Of course, the unnamed party would have to be either Mr. Ariel Calonne or Mr. Paul Casey, but you would not share that information with me.
  • The reason you gave for the ten-day delay from Nov 20 to Nov 30 was that other unnamed City staff (who had from July 1 to Nov 20 — nearly four months — to submit their input), needed still more time to provide that input over the ten days surrounding the Thanksgiving holiday.
  • You, today, committed to give to Santa Barbara residents proposed WTF-Code by no later than Fri Dec 4, 2020 (two weeks late)
  • Today, you told me that the City staff input has now been reflected in the 2020 proposed WTF-Code and that you do not expect any additional changes to the WTF-Code before you release it to the public.

Mr. Doimas, the public has waited since July, 2020 to read this City of Santa Barbara WTF-Code. I informed you today that it has been unacceptable to the public for the City of Santa Barbara to delay access to read and comment on this WTC-Code, for each and every day after Nov 20, 2020. Therefore, I correctly stated that the release of the WTF-code to the public is orthogonal to the additional marketing activities you are completing this week (a press release and directions for giving feedback on the code). It is most appropriate for the City of Santa Barbara to email to me the WTF-Code today on Nov 20, 2020. Will you please do so?

As you understand by reading the CA Public Records Act (https://scientists4wiredtech.com/legislation/ca-public-records-act/) “§ 6253. (a) Public records are open to inspection at all times during the office hours of the state or local agency and every person has a right to inspect any public record.”

This Email is a CA Public Records Act Request for an Immediate Inspection of Records:
I today, On Nov 30, 2020 at 2:00 pm am making formal inspection of records request pursuant to CA Gov Code CHAPTER 3.5. Inspection of Public Records [6250 – 6276.48] to immediately inspect a pdf of the now-completed City of Santa Barbara 2020 proposed WTF-Code. Will you please email me the pdf before the close of business today?

  • § 6253 (e): ” ‘Public records’ includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.”
  • § 6253 (g) “ ‘Writing’ means any handwriting, typewriting, printing, photo stating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.”
  • § 6254. “Except as provided in Sections 6254.7 and 6254.13, this chapter does not require the disclosure of any of the following records: (a) Preliminary drafts, notes, or inter-agency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.”

The CPRA information request detailed above is not subject to delay, ten days or otherwise, for the following reasons:

  1. I am not requesting any copies, just inspection of the existing information in any form (if not easily available in digital format, I prefer to inspect the original documents on site at the City of Napa offices at a specified date/time)
  2. The information exists in some form within the City of Santa Barbara offices (in fact, you have the pdf on your laptop, Mr. Doimas)
  3. The information is not exempt from the CPRA process

Additionally, your admission to me today, Mr. Doimas, that City staff input has now been reflected in the 2020 proposed WTF-Code and that you do not expect any additional changes to the WTF-Code, means that the WTF-Code that we seek to review today cannot be considered a preliminary draft and there is no evidence that could establish that “the public interest in withholding those records clearly outweighs the public interest in disclosure.” Therefore, there is no legal basis to withhold this information from the public. Please comply with the law of California, as you are required to do so as an active member of the California Bar.

Finally, today, Mr. Doimas, I pointed out several other germane facts, to which you seemed to react negatively:

The final WTF-Code will result from a negotiation between the following stakeholders:

  1. The residents of Santa Barbara who are facing significant and unnecessary public safety, privacy and property value harms from the continued insufficiently-regulated roll out of so-called “small” Wireless Telecommunications Facilities (sWTFs) into residential zones
  2. The various Wireless Carriers and Agents, who have limited Federally-granted preemption of local authority over only the placement, construction and modification of personal wireless service facilities to provide personal wireless services
  3. The City of Santa Barbara elected/appointed officials who must uphold the CA Constitution and must delivery actual public safety, regardless of any Federal guidelines.

As an Assistant City Attorney, you have an important advisory role, but not a policy role. We learn from the City’s web site:

Mr. Doimas joined the City Attorney’s Office in 2011. He serves as the advisor to the Police, Library, Human Resources, and Building and Safety Department. John also prosecutes criminal and civil violations of the City’s Municipal Code and provides staff support to the City’s administrative code compliance program. In addition, he handles pitchess motions, administrative hearings, civil service hearings, serves as a back-up on civil litigation matters, and also drafts and reviews ordinances.

Originally from Chicago, Mr. Doimas received his law degree from Loyola University Chicago with highest honors and earned bachelor degrees in Political Science and History and a minor in economics from DePaul University.

I will ask you to treat the public more respectfully that you did earlier today at the end of our short phone call. It is easy to shoot the messenger, Mr. Doimas, but doing so is generally ineffective. You can start treating the public with more respect by emailing me a pdf of the now-completed City of Santa Barbara 2020 proposed WTF-Code by no later than 5:00 pm today.

Thank you.


Appendix A: Sept 29, 2020 Letter to Malibu City Council**

September 29, 2020

From: Susan Dana Foster, Original letter here.

To: Malibu City Council Members

Re: Conflict of Interest between Telecom Law Firm PC & Permit Team LLC

Dear Mayor Pierson and City Council,

I’m Susan Foster and I’m grateful to be back to speak with you. In 2001, I was appointed by the County of San Diego to their task force to create a cell tower ordinance. We created the first four-tiered order of preference ordinance; Sprint sued and the case was litigated all the way to the US Supreme Court and our ordinance was upheld.

I have written appeals for firefighters on safety issues since August 2001 and more recently worked as a consultant to Stop 5G Encinitas on their ordinance.

I am deeply concerned about what appears to me to be an ethical conflict of interest between the principles at Telecom Law Firm PC and a firm owned by the same principals called Permit Team LLC. The managing partners of both firms are Jonathan Kramer and Tripp May.

Permit Team helps with the permitting process of new cell towers. So they profit from putting cell towers in or adding to the existing ones. Kramer describes Permit Team LLC as an arm’s length away from his law business, but I believe the city Council needs to ask the following question: Does owning both businesses prevent Jonathan Kramer’s Telecom Law Firm from objectively advising the City of Malibu?

If a legal conflict of interest does not exist, one has to determine if a moral conflict of interest arises through the individual’s actions. It is my impression that an ethical conflict is self-evident in Jonathan Kramer’s advice to the city of Malibu on August 24. He did not advise the City Council, as attorney Scott McCullough did, that the Council had protective options that could slow down and even impose restrictions on telecom from 4G/5G Densification. Telecom Law Firm approved restrictions in the Encinitas Ordinance. Why haven’t they brought them to Malibu?

Scott McCullough has given you a protective ordinance and I would implore you to use it with great urgency. I say this from the voice of experience. Malibu is already littered with 4G/5G small cells and you have dozens & dozens applications waiting for you. Time is of the essence and I fear the doors are closing in a matter of weeks. AND that is possible. Encinitas produced & approved their amended ordinance within five weeks.

The inherent fire risks brought about by densification of cell towers must not be allowed to repeat the tragedy of the Malibu Canyon Fire.

I urge the City Council not to renew its contract with Telecom Law Firm.




>>> Ariel Calonne wrote on 12/1/2020 11:55 AM:

Seal of the  City of Santa Barbara

MEDIA RELEASE

City of Santa Barbara Release Draft Small Wireless Facilities Ordinance for Public Comment

SANTA BARBARA, CA – December 1, 2020

Today the City of Santa Barbara released a Draft Small Wireless Facilities Ordinance for public review and comment. Written comments will be accepted until January 15, 2021.

The Ordinance would regulate the placement of small wireless facilities (like cellular installations) in the public rights-of-way. The purpose of the Ordinance is to establish reasonable and comprehensive standards and procedures, including but not limited to aesthetics, construction, operation, modification, and removal, for small cell permitting within the City. The proposed ordinance aims to promote the community’s interest in protecting the City of Santa Barbara’s visual character, consistent with recent FCC regulations preempting local zoning discretion. The draft regulations also outline the requirements for small wireless facilities application and installation procedures, establish the City’s location preferences and design standards, lay out the public notification procedures, and appeal process.

A copy of the proposed ordinance is available online at https://www.santabarbaraca.gov/gov/depts/attorney/news_and_documents/default.asp.

Comments or questions should be directed to Assistant City Attorney John Doimas at jdoimas@SantaBarbaraCA.gov.

Contact: John Doimas, Assistant City Attorney

Phone: (805) 564-5326

Email: jdoimas@SantaBarbaraCA.gov




December 2, 2020

To:
Mr. Ariel Calonne
City of Santa Barbara
City Attorney
740 State Street, Suite 201
Santa Barbara, CA 93101
acalonne@santabarbara.org
805-564-5326

To:
City of Santa Barbara City Council Members

Mayor – Cathy Murillo
District 1 Councilmember – Alejandra Gutierrez
District 2 Councilmember – Mike Jordan
District 3 Councilmember – Oscar Gutierrez
District 4 Councilmember – Kristen Sneddon
District 5 Councilmember – Eric Friedman
District 6 Councilmember – Meagan Harmon

cc:
City of Santa Barbara Staff
John Doimas , Assistant City Attorney
Lisa Clenden
Paul Casey , City Administrator/Clerk/Treasurer
Pamela Antil , Assistant City Administrator

Re: City of Santa Barbara Draft Small Wireless Facilities Ordinance for Public Comment

[City Administrator/Clerk/Treasurer, Mr. Paul Casey, will you please place this email correspondence into the public record re: the review of the proposed 2020 revisions to the City of Santa Barbara Wireless Telecommunications Facilities Code (“WTF-Code”). Please print this email, the appendices of this email and the information at the links in this email and place all of that information in the paper file, as well as making the information subject to any CA Public Records Act Request? Thank you for doing so.]

Dear Mr. Callone,

Thank you and Mr. Doimas for following CA Govt. Code CA Gov Code CHAPTER 3.5. Inspection of Public Records [6250 – 6276.48] and releasing the City of Santa Barbara Release Draft Small Wireless Facilities Ordinance for Public Comment on Dec 1, 2020, about ten days after the promised release date of Nov 20, 2020. The public review process has already started with comments in yellow boxes on this web page: https://scientists4wiredtech.com/santa-barbara/wtf-code-draft-for-public-review/ (more comments and analysis and suggestions will be forthcoming).

We are looking forward to open, thorough and frank discussions about how to correctly apply the plain language of the preemption law from the Federal 1934 Communications Act, as amended by the 1996 Telecommunications Act and the 2012 Spectrum Act to the City of Santa Barbara’s authority granted to it, as part of the cooperative federalism recognized by the 2005 US Supreme Court Ruling in Palos Verdes v Abrams.

Other Federal Acts are equally important: the Americans with Disabilities Act (ADA) the Fair Housing Act (FHA) and the National Environmental Policy Act (NEPA). All of these Federal Acts must be considered in the final version of City of Santa Barbara Small Wireless Facilities Ordinance.

This negotiation with the public also requires accurate interpretations of the extant FCC Orders 18-111 and 18-133 (presumptive, not self-enforcing orders) and other FCC Orders, in light of the FCC and the Wireless Industry losing its foundational definition for so-called “small” Wireless Telecommunications Facilities (sWTFs) in the August, 2019 Ruling in the US Courts of Appeals, DC Circuit, in Case 18-1129 Keetowah et al. v. FCC.

With regards to the August 2020 Ruling in the US Courts of Appeals, Ninth Circuit, on FCC Orders 18-111 and 18-133, the judges ruled the following:

See link to Ninth Circuit Court of Appeals Case No. 18-72689 City of Portland et al. v FCC re: repeal of FCC Orders 18-111 and 18-133.

“We therefore hold that the FCC’s requirement in the Small Cell Order that aesthetic regulations be ‘no more burdensome’ than regulations applied to other infrastructure deployment is contrary to the controlling statutory provision. See 47 U.S.C. § 332(c)(7)(B)(i)(II).

We also hold that the FCC’s requirement that all local aesthetic regulations be “objective” is not adequately explained and is therefore arbitrary and capricious.

We therefore:

  • GRANT the petitions as to those requirements,
  • VACATE those portions of the rule and
  • REMAND them to the FCC.”

In addition, we will establish the importance of the October, 2019 Ruling in the US Courts of Appeals, DC Circuit in Case 18-1051, Mozilla et. al v. FCC with regards to limiting the FCC’s preemption over state and local authority with respect to Title I information services (wireless broadband for internet, video streaming, gaming) as distinct from Title II telecommunications service.

I am confident that if the City of Santa Barbara listens to and deliberates on — with sufficient due diligence — the matters of substance, fact and law that the residents of Santa Barbara and other CA residents have already and will continue to place in the City of Santa Barbara public record, there is a good chance that all can achieve a workable solution for Santa Barbara. It is important to note that this first draft of this WTF code does not yet achieve a workable solution, so amendments will be needed in order to achieve such a solution.

During this process, we will be placing a strong floodlight on any and all Wireless industry propaganda (some of which is in the current draft) and any possible dark-room-deals, so we can define final WTF-Code that protects the public from the obvious public safety, privacy and property value harms inherent in placing Wireless Telecommunications Facilities (WTFs) of any size or any G — with insufficiently-regulated maximum Effective Radiated Power output — too low to the ground and too close to where people live, learn, play, eat, sleep and heal.

There are simple, workable solutions. The City Staff and City Council members have to read the existing Federal and State Telecom statutes with an open mind and fresh eyes, placing to the side nearly 30 years of Wireless industry propaganda, such as the false, tired excuse that “our City officials’ hands are tied.” The City of Santa Barbara’s City Council members hands are most certainly not tied . . . perhaps one of ten fingers might be partially tied — the left pinky — but nine free fingers are enough to get the job done (listen to Andrew Campanelli, Esq. here → https://scientists4wiredtech.com/campanelli)

The buck stops with the City of Santa Barbara City Council, the elected officials who took important oaths to represent their constituents’ interests and uphold the US and CA constitution in the process of doing so. We appreciate the role of City Attorneys in this discussion, but recognize that these City Staff members do not and cannot set policy, as they are only advisors to the City Council member and certain City Staff members, not elected representatives of the residents of Santa Barbara.

We look forward to engaging with you. When is the first meeting?




>>> Mike Jordan wrote on 12/3/2020 11:31 AM:

Thanks for the info.

I suspect much of this is your interpretation and presumption – for example “requires accurate interpretation,” a self-contradicting phrase at best- and I’ll let staff counsel advise me on these matters and don’t plan to respond further to these emails.

My role is not to argue competing requirements or facts in advance of public hearings.

I also have zero to do with answering your question regard meeting schedules. You may want to adjust your to: and cc: fields accordingly.

Regards –
Mike Jordan
Councilmember
City of Santa Barbara
MJordan@SantaBarbaraCA.gov
(805) 564-5325 direct
(805) 564-5318 Mayor & Council




December 3, 2020

Mike Jordan
Councilmember
City of Santa Barbara
740 State Street, Suite 201
Santa Barbara, CA 93101
MJordan@SantaBarbaraCA.gov
(805) 564-5325 direct

Hi, Mike.

Thanks for your response. I can see that you “suspect much of this is [my] interpretation and presumption“, but once you complete your due diligence, you will realize what I have written is based on substantial written evidence, backed up by legal citations and, therefore, is based on matters of substance, fact and law, not mere opinion or concern.

In what way is the requirement of an accurate interpretation wrong? Interpretation is referenced in many US Courts of Appeal Decisions/Rulings.

Cellular Phone Taskforce v FCC, Feb 18, 2000, 205 F.3d 82 (2d Cir. 2000)

Case:The FCC’s interpretation is therefore entitled to deference and, because the FCC’s interpretation is reasonable, we are bound to accept it.

S4WT: See Andrew Campanelli, Esq. from this page:

“I don’t think [FCC 18-133] has any effect on a town’s ability to regulate because . . .

  1. The FCC can’t take away the powers preserved to towns by Congress — it wasn’t intended
  2. The FCC can’t wipe out twenty years of Federal judges’ interpretations
  3. The FCC can’t strip local governments of 20 years of local zoning regulations

The Wireless industry is going from town to town, showing this [FCC 18-133] as gospel and the closest thing I have to a decision on this, so far, is one Federal judge in New York said and I’ll quote him:

It is not up to the FCC to put words in the Telecommunications Act that aren’t there.

So, that’s why I think I am right. I know local towns still have the power to control the placement of Wireless Telecommunications Facilities (WTFs). To the extent an applicant says “You have to give [this permit] to us because of this [September 2018] interpretive Order” — I don’t think the Order has any effect on the ability of towns to control the placement of Wireless Facilities at all.”

You may let “staff counsel advise [you] on these matters“, but would that be sufficient due diligence on your part?

Ask yourself, who has more expertise in the matter . . .

  • Attorneys:
    • Ariel Colonne
    • John Doimas
    • Jonathon Kramer

OR

. . . attorneys that I know well and work with often, across the country.

I understand that your “role is not to argue competing requirements or facts in advance of public hearings,” but your role is to complete sufficient due diligence and not just blindly follow what your City staff members recommend.

I will adjust my “to:” and “cc:” fields accordingly. Thanks for the suggestion.