4/11/26 - Public Comment Submitted for the 4/14/26 BOS Hearing
Dear Members of the Board,
Before you vote on April 14th, there is something you need to know that is not in the Staff Memo in front of you.
The Planning Commission voted on February 26th to pass this ordinance forward, but every Commissioner simultaneously acknowledged that it contains serious, unresolved gaps. That unanimous acknowledgment does not appear anywhere in the Memo prepared by Planning Director Brian Foss and Staff. You are being asked to adopt an ordinance your own Planning Commission flagged as incomplete, with no information that would allow you to act on that warning.
That omission is not an accident of formatting. It is a failure of the Planning Department's basic obligation to this Board.
At the Commission's direction, Director Foss agreed to meet with community groups before this hearing. Nevada County for Safe Tech (NCST) included telecommunications attorney Scott McCollough, one of the foremost wireless land use lawyers in the country, to a March 31st meeting with Mr. Foss, Attorney Trevor Koski, and Planner David Nicholas. Significant legal vulnerabilities were identified and Staff confirmed they understood them. They have no remaining basis for ignorance. Not one word of that meeting, nor one recommendation from it, appears in the Staff Memo before you. It was buried in Public Comments, with no context (see Document 11 Public Comment for a summary transcript of the meeting and the NCST template).
The Planning Department serves this Board, and through you, the residents of this County. When staff withholds the Commission's own recommendations from the Board's deliberation, that is a failure of accountability this Board should not allow to stand unremarked.
The gaps that were identified, explained to staff, and then ignored are not technical footnotes. They are omissions that could protect this County and instead expose it to industry overreach, legal liability, and harm that cannot be undone after a wireless facility goes up.
1. The ordinance has no variance or waiver mechanism (Subsection K of the NCST template). Without it, the County has no structured legal defense when a carrier challenges a provision as constitutionally prohibitive. Courts have upheld ordinances in federal litigation precisely because a waiver process existed. This ordinance has none.
2. Radio Frequency (RF) testing is set at 60 days post-installation only. No annual certification, random unannounced testing, or good-cause testing triggered by resident qualified complaint. A facility can go live, exceed FCC exposure limits from day one, and the County is ignorant for two months. The County's own Staff Report acknowledges staff lack the expertise to evaluate RF compliance independently. That admission makes the case for robust third-party enforcement more powerfully than any community comment could. If the County cannot evaluate compliance on its own, it must have legal tools to compel carriers to demonstrate it.
3. The ordinance exempts Small Cell Wireless Facilities (SCWF) from discretionary review entirely meaning no Conditional Use Permit, public notice or community input,. A carrier can install one in front of your constituent's home and the first the resident will know about it is when a construction truck shows up.
This is what "less than 28 cubic feet of equipment" looks like in practice.IMAGE 1 OF SMALL CELL FACILITIES IMAGE 2 SANTA ROSA, CA
Staff compares SCWFs equipment volume to less than half a phone booth, as though that framing settles the matter. These are not minor equipment adjustments. They are installed at eye level in front of homes on neighborhood streets, emit massive RF, and under this ordinance, would require only an encroachment and building permit with less scrutiny than a fence permit.
Attorney McCollough, who reviews more small cell right-of-way applications than any other facility type nationwide and has argued FCC matters at the US Supreme Court, told Planning staff directly on March 31st: "There is simply no basis to the argument that requiring a CUP for a new small cell violates any federal law or even any state law." The FCC's own rules and the governing statutes expressly preserve local authority to require discretionary permits for new small cell installations. The County is not required to exempt them. Staff is choosing to do so anyway.
The Staff's proposed 150% of tower height setback for larger macro tower facilities does not address SCWFs at all. The Staff Report claims a siting hierarchy and front yard protections "would prohibit small cell wireless facilities in a large portion of the public right of way,” yet the City of Elk Grove includes precisely this protection in its ordinance and no carrier has challenged it. Staff knows this because the Commissioners asked the Elk Grove resident who helped write that ordinance many questions about it at the February hearing. Staff states opinion as legal fact, without citation, without case law, and in direct contradiction to legal guidance. The FCC's 2018 small cell order does not prohibit preference hierarchies. It requires siting standards be objective, reasonable, and published in advance. The NCST template meets all three. A preference hierarchy is not prohibitive. It places the burden of justification on the applicant. Without it, carriers will site wherever is most convenient.
When County Counsel raised the shot clock as a reason to avoid a CUP process for SCWF, McCollough explained the shot clock is an argument for a more rigorous and complete application process up front, not for eliminating review altogether. A thorough application process protects the County from clock pressure; exempting SCWF from review does not. When County Counsel asked whether carriers had ever successfully challenged a CUP requirement for new small cells as constituting an effective prohibition, McCollough was unequivocal: "When we're talking about new small cells, that is under federal and state law clearly discretionary." Carriers are currently deploying SCWFs across the country at an accelerating pace. Verizon, AT&T, and others are building out capacity networks in rural and semi-rural counties and have asserted that small cells must be spaced every 500 to 750 feet. That claim, McCollough noted, has been factually challenged and is not legally binding. The County is not required to accept it. But under this ordinance, the County has no process through which to examine it.
A Conditional Use Permit for new SCWFs would provide public notice before installation, enable design review, allow assessment of land use compatibility, aesthetics, RF compliance, and siting appropriateness. It would create a documented legal record for any subsequent challenge. It would give residents the basic dignity of knowing what is coming before it arrives.
This ordinance gives all of that away. Planning staff was told clearly why that was wrong and they chose not to act on it.
The residents of Nevada County engaged this process in good faith. They retained expert legal counsel. They submitted a comprehensive template. They attended the workshop, submitted comments, attended the hearing, and participated in the Staff meeting. Their work sits in a public comment file, unacknowledged in the document that governs today's vote.
We ask the Board to adopt the ordinance conditionally, with a formal directive that Planning staff begin substantive revision immediately and set a firm deadline, not an open-ended commitment, for the revised ordinance to return to the Planning Commission, and to include the considerations mentioned above into the County code.
Respectfully submitted,
Nevada County for Safe Tech
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3/3/26