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HomeMy WebLinkAbout09-05-2018 Supplemental Attachment 1.4. Ordinance Establishing Regulations for Storage and Reporting Lost or Stolen Firearms Page 1 of 1 CITY OF SARATOGA Memorandum To: Mayor Bernald & Members of the Saratoga City Council From: Debbie Bretschneider, Interim City Clerk Date: September 5, 2018 Subject: Item 2.1 APCC18-0002 Appeal of a cell facility approval along Pierce Road near the Vista Regina intersection (Written Communications) After publication of the agenda packet for the September 5, 2018 City Council Meeting, the attached written communications was received for Item 2.1 APCC18-0002 Appeal of a cell facility approval along Pierce Road near the Vista Regina intersection JOHN DI BENE General Attorney Legal Department AT&T Services, Inc. 2600 Camino Ramon Room 2W901 San Ramon, CA 94583 925.543.1548 Phone 925.867.3869 Fax jdb@att.com August 31, 2018 Via Email (saratoga_cc@saratoga.ca.us) Saratoga City Council City Hall 13777 Fruitvale Avenue Saratoga, CA 95070 Re. AT&T Proposed Small Cell Wireless Facility; Site ID WSAR0_003 Application PDR18-0011; Pierce Road right-of-way near Via Regina. Dear Mayor Bernald, Vice Mayor Cappello, and Councilmembers Kumar, Lo and Miller: I write on behalf of New Cingular Wireless PCS, LLC dba AT&T Mobility (AT&T), to respectfully request that the City Council uphold the Planning Commission’s approval of AT&T’s application to install a concealed small cell wireless telecommunications facility on an existing utility pole in the public right-of-way along Pierce Road (“Small Cell Node 3”). This project, which will help deliver vital wireless services to residents, was supported by Planning Staff at every step along the application process. On July 11, 2018, the Planning Commission unanimously approved this project. Planning Staff continues to back this application, but one resident has appealed its approval. AT&T’s proposed plans for this low-profile, low-power wireless facility presents a win-win for the City by enabling vital wireless service for residents without disturbing the area aesthetics. Thus, we urge the Council to deny the appeal and approve AT&T’s application. AT&T’s Proposed Small Cell Facilities AT&T is deploying a set of thirteen small cell facilities in carefully selected locations where they are needed to address wireless service issues in the City. Unlike traditional macro facilities, these small facilities improve service quality for the City’s residents with streamlined facilities that will be installed with minimal impact to the City. AT&T’s proposed small cell equipment consists of a set of small, enclosed boxes matching the diameter of the pole and painted to match the pole. AT&T’s equipment does not stand out; in fact, they look like small utility boxes on a typical utility pole. Using pole-top antennas also helps the overall aesthetic by maintaining the existing pole line. AT&T has taken care to select locations to reduce visibility. As you can see in the photosimulations for Small Cell Node 3 (Attachment A), this facility will be placed on a utility pole with adjacent trees that will Saratoga City Council August 31, 2018 Page 2 of 7 help reduce visibility of the facility. The height of nearby trees will help conceal the equipment while still allowing the antennas a clear line-of-site for signals. As summarized in the July 11, 2018 Staff Report to the Planning Commission, Small Cell Node 3 meets all of the City’s design review criteria under Saratoga Municipal Code Section 15- 44.025. In addition to reviewing AT&T’s application at its July 11th public hearing, the Planning Commission toured the proposed small cell sites on July 10th so that they could view the actual existing conditions of the proposed sites. The Planning Commission agreed that Small Cell Node 3 meets the City’s standards and unanimously approved the application. The City Council can easily make specific findings that AT&T’s Small Cell Node 3 will meet the design review criteria. Specifically, as staff concluded, this small cell will (a) be located on an existing utility pole in the public right-of-way;1 (b) meet screening and stealthing requirements by orienting equipment on existing utility poles to face away from the public, painting equipment to match the pole, with cabling flush to the pole to avoid visual clutter, and placing the antenna and equipment at heights compatible with nearby trees;2 and (c) avoid use of ground-mounted equipment.3 In addition, the pole-top antenna will be fully concealed within a canister in line with the pole and painted to match the pole. And the visual impact of the pole- mounted Small Cell Node 3 will be minimized even further by the natural screening of adjacent trees and by its location at a bend in Pierce Road. Need for Small Cells Small cells give residents and businesses access to the latest and greatest wireless technologies without cluttering the public rights-of-way. Small cells are critical to meet ever- increasing demand for wireless services. Small cells are needed in residential areas, where they can be installed in the public rights-of-way, so that customers are presented with a dominant signal that results in less noise interference and provides faster throughput. This is especially important in today’s world where so many people rely on wireless services to do more in their homes. The Center for Disease Control and Prevention (“CDC”) tracks the rates at which American households are shifting from landlines to wireless telecommunications. According to the CDC’s latest Wireless Substitution Report, more than 70 percent of Americans rely exclusively or primarily on wireless communications in their homes.4 In addition, the FCC estimates that 70 percent of all 911 calls are made from wireless devices.5 And with AT&T’s selection by FirstNet as the wireless service provider to build and manage the nationwide first responder wireless network, each new or modified facility will help strengthen first responder communications. 1 See Saratoga Municipal Code § 15-44.025(a). 2 See Saratoga Municipal Code § 15-44.025(b). 3 See Saratoga Municipal Code § 15-44.025(c). 4 See Wireless Substitution: Early Release of Estimates From the National Health Interview Survey, July-December 2017, available at http://www.cdc.gov/nchs/data/nhis/earlyrelease/wireless201806.pdf. 5 See 911 Wireless Services, available at https://www.fcc.gov/consumers/guides/911-wireless-services. Saratoga City Council August 31, 2018 Page 3 of 7 AT&T’s existing macro facilities that serve the area are under duress due to high and increasing mobile data traffic on AT&T’s network. The resulting capacity restraints reduce mobile data speeds to the point where AT&T cannot meet its service objectives in the area.6 By placing small cells in these poor signal quality areas, they will capture a significant amount of traffic now served by the overloaded macro sectors. Once on air, proposed Small Cell Node 3 will help offload network traffic from those macro sectors, which will improve signal quality and data speeds, allowing customers served by that sector to receive reliable service. AT&T’s Search for Alternative Sites In order to be certain that AT&T is proposing the best available and least intrusive means to address its significant service coverage gap in these portions of the City, AT&T evaluated many different locations in the area. AT&T’s alternative sites analysis for Small Cell Node 3, which provided to the City in connection with this appeal. AT&T selected the proposed location based on its availability – that is, AT&T’s ability to gain attachment rights – and feasibility in terms of both constructability and viability from a radio frequency perspective. Specifically, AT&T considered the City’s design review criteria and compared potentially available alternatives for Small Cell Node 3. In all, AT&T has analyzed seven sites for Small Cell Node 3. Four of these alternatives were not feasible for construction because AT&T’s equipment on these poles could not meet state regulatory standards (CPUC GO95) due to lack of climbing space or existing electric service equipment on the pole that prevents AT&T’s attachment. Two other sites would have been more intrusive. One of these would have required a ground-mounted meter, which is less favored under the City Code and would add clutter to the area. The other more intrusive alternative would not have been as well screened as the proposed location due to somewhat less vegetation adjacent to the pole. Thus, AT&T identified the least intrusive potential and feasible site for Small Cell Node 3. AT&T’s Proposals Are Consistent with State Law AT&T has a statewide franchise right to access and construct telecommunications facilities in the public rights-of-way. And AT&T’s small cell applications seek to place these facilities consistent with state policy and law. Consistent with the California Constitution, the placement of telecommunications infrastructure in public rights-of-way is a matter of statewide concern.7 Under California Public Utilities Code Section 7901, AT&T has the right to access and construct facilities in public rights-of-way in order to furnish wireless telecommunications services, so long as it does not “incommode” the public use of the public right-of-way. And 6 See radio frequency propagation maps submitted with Application. 7 See, e.g., Pac. Tel & Tel. Co. v City & County of San Francisco, 51 Cal. 2d 766, 768 (1959) (“the construction and maintenance of telephone lines in the streets and other public places within the city is today a matter of state concern and not a municipal affair”); see also, Cal. Const., Art. XII, § 8 (“[a] city, county, or other public body may not regulate matters over which the Legislature grants regulatory power to the [Public Utilities] Commission”). Saratoga City Council August 31, 2018 Page 4 of 7 under Section 7901.1, AT&T’s right is subject only to the City’s reasonable and equivalent time, place, and manner regulations as to how AT&T constructs in the public rights-of-way. Small Cell Node 3 will not incommode the right-of-way. In addition, AT&T’s application proposes to place facilities in accordance with the City Code and with careful consideration given to the City’s preferences and design review criteria. This small cell is designed to minimize visual impact and are carefully sited to fit within its surroundings. AT&T’s Small Cell Node 3, and the other proposed small cells in this portion of the City, will be amenities to the community, improving critical wireless services in the City. Approval of AT&T’s Proposal is Required Under Federal Law The federal Telecommunications Act of 1996, 47 U.S.C. § 332 (“Act”) provides rights to wireless service providers and establishes limitations upon state and local zoning authorities with respect to applications for permits to construct personal wireless service facilities. The United States Supreme Court has explained that the Act was enacted in part to prioritize and streamline deployment of wireless technologies on a national basis.8 The Act defines the scope and parameters of the City’s overall review of AT&T’s Application. Under the Act, the City’s review must consider the application based on substantial evidence.9 It is important to note that evidence about radio frequency emissions is not substantial evidence that the City can rely upon to grant the appeal. As noted by the Planning Commissioners during the public hearing, local governments are specifically precluded from considering any alleged effects of radio frequency emissions in making decisions as to the siting of wireless telecommunications facilities “to the extent such facilities comply with the FCC’s regulations concerning such emissions.”10 Here, it is beyond dispute that the proposed equipment will operate well below applicable FCC limits. For proposed Small Cell Node 3, an RF engineering analysis was performed by Hammett & Edison, Inc., Consulting Engineers.11 The report confirms that Small Cell Node 3 will operate well within (and actually far below) all applicable FCC public and occupational exposure limits. In addition, William Hammett spoke during the Planning Commission hearing, confirming that the small cells will comply with FCC standards and answered the Commission’s specific 8 City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115-16 (2005) (“Congress enacted the Telecommunications Act of 1996 (TCA), 110 Stat. 56, to promote competition and higher quality in American telecommunications services and to ‘encourage the rapid deployment of new telecommunications technologies.’ Ibid. One of the means by which it sought to accomplish these goals was reduction of the impediments imposed by local governments upon the installation of facilities for wireless communications, such as antenna towers.”) 9 47 U.S.C. § 332(c)(7)(B)(iii) 10 See 47 U.S.C. §332(c)(7)(B)(iv). 11 See Statement of Hammett & Edison, Inc., Consulting Engineers (April 4, 2018), submitted with AT&T’s Application. Saratoga City Council August 31, 2018 Page 5 of 7 questions. Given the compliance with the FCC standards, the Applications cannot be rejected based on concerns about radio frequency emissions. The Act also prohibits a local government from denying an application for a wireless telecommunications facility where doing so would “prohibit or have the effect of prohibiting the provision of personal wireless services.”12 Courts have found an “effective prohibition” exists where a wireless carrier demonstrates (1) a significant gap in wireless service coverage, and (2) that the proposed facility would provide the “least intrusive means,” in relation to the land use values embodied in local regulations, to provide the service coverage necessary to fill that gap.13 If a wireless carrier satisfies both of these requirements, state and local standards that would otherwise be sufficient to permit denial of the facility are preempted and the municipality must approve the wireless facility.14 When a wireless provider presents evidence of a significant gap and the absence of a less intrusive alternative, the burden shifts to the local government to prove that a less intrusive alternative exists. In order to meet this burden (and overcome the presumption in favor of federal preemption), the local government must show that another alternative is available that fills the significant gap in coverage, that it is technologically feasible, and that it is “less intrusive” than the proposed facility.15 Here, AT&T has demonstrated its significant service coverage gap. AT&T’s radio frequency propagation maps submitted with its application depict the problem that AT&T is experiencing in this portion of Saratoga. These maps show that AT&T’s wireless service in this portion of the City suffers from poor data rates, meaning customers are experiencing poor signal quality in large portions of the City in the vicinity of Small Cell Node 3 and the other proposed small cells. Specifically, this gap area is significant because it encompasses dozens of homes in residential neighborhoods along Pierce Road and Big Basin Way which are difficult to cover with traditional macro facilities. By placing the proposed small cells in locations where specific and measurable signal quality issues are occurring, AT&T can offload traffic from congested macros in order to alleviate these capacity triggers and ensure adequate signal quality in the larger area served by the affected macros. AT&T has worked hard to identify the right solution to its service needs. Taking into consideration the City’s design review criteria, AT&T conducted a meaningful comparison of alternatives for Small Cell Node 3 and identified what it determined to be the best available and least intrusive means for each.16 Specifically, AT&T has analyzed seven sites for Small Cell Node 3 and concluded that the other six candidate sites were not feasible because they failed to meet state 12 47 U.S.C. §332(c)(7)(B)(i)(II). 13 See e.g., Metro PCS, Inc. v. City and County of San Francisco, 400 F3d 715, 734-35 (9th Cir. 2005), abrogated on other grounds, T-Mobile South, LLC v. City of Roswell, 135 S.Ct. 808 (2015); Sprint PCS Assets, LLC v. City of Palos Verdes Estates, 583 F.3d 716, 726 (9th Cir. 2009). 14 See T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 999 (9th Cir. 2009). 15 Id., 572 F.3d at 998-999. 16 See Alternative Sites Analysis submitted to the City on August 20, 2018 in connection with AT&T’s appeal response. Saratoga City Council August 31, 2018 Page 6 of 7 regulatory standards (CPUC GO95) or were more intrusive than the proposed small cell. Thus, AT&T identified the least intrusive potential and feasible site for Small Cell Node 3. Issues Raised By Appellant The appellants’ grounds for appeal lack merit as explained below and should be rejected. Whether or not the Council finds a code-based reason to disfavor proposed Small Cell Node 3, the Council is preempted by the Act from taking action that would prohibit or have the effect of prohibiting AT&T from providing personal wireless services, and the City cannot unreasonably burden AT&T’s right to use the public rights-of-way. During the Planning Commission hearing about AT&T’s proposed small cells, one of the appellants spoke to provide comments on proposed Small Cell Node 3. At that time, he explained that his primary concern was about the health effects of radio frequency emissions from the proposed facility. He specifically stressed his concern about radiation exposure to his young children. Again, under federal law the City cannot consider evidence about the effects of radio frequency emissions because Small Cell Node 3 will comply with the FCC’s applicable standards. Moreover, appellants’ speculative concerns are contradicted by the substantial evidence that demonstrates compliance with the FCC’s standards. The appellants also speculate that the addition of the stealth, pole-top antenna might affect their property value. During the Planning Commission hearing, the appellant speculated about possible impacts to property values and he asserted that the subject utility pole is situated on a utility easement of his property. But Staff confirmed that the utility pole to which Small Cell Node 3 will be attached is in the public right-of-way. Appellants also complain that their “property suffers by being saddled already with several large and obtrusive utility boxes.” While there do seem to be some existing ground-mounted utility boxes near this utility pole, Small Cell Node 3 will not add any ground-mounted equipment. Further, appellants acknowledge that they can already see the utility pole from their home. There is no indication of why the appellant is concerned that a stealth utility installation on an existing utility pole would adversely impact their property value. In any event, there is no evidence in the record (such as a market appraisal report or expert testimony) to support the appellants’ concerns about property values. In fact, home buyers commonly seek out properties with amenities such as high-quality wireless connectivity. The Council must make its decision based on substantial evidence, not based on unsupported conjecture and fear. The Application cannot be rejected due to health concerns whether raised explicitly or indirectly through some proxy such as property values. Citing Congressional intent upon passage of the Act, a federal district court in California has held that in light of the federal preemption of radio frequency emissions, “concern over the decrease in property values may not be considered as substantial evidence if the fear of property value depreciation is based on concern over the health effects caused by radio frequency emissions.”17 Thus, appellants’ complaints cannot be a proxy for preempted concerns about radio frequency 17 AT&T Wireless Services of California LLC v. City of Carlsbad, 308 F.Supp.2d 1148, 1159 (S.D. Cal. 2003) (quoting H.R. Conference Report No. 104-458, 201 (1996)). Saratoga City Council August 31, 2018 Page 7 of 7 emissions. By law, to the extent that the appeal is based on concerns over radio frequency emissions, the Council cannot consider them. The appellants also worry that children might come into contact with AT&T’s equipment by climbing nearby trees. But AT&T’s equipment will be placed on an existing utility pole that already houses utility equipment. For example, you can see in the photosimulations (Attachment A) that existing conduits run the length of the pole. In addition, the proposed small cell equipment will be located a minimum of seven feet high on the pole and no ground-mounted equipment is proposed. Appellants point out that other approved small cells “are either off to the side of the homeowner’s property or across the street.” That is the same case here. The appellants reside on Mount Eden Road, and Small Cell Node 3 will be placed along Pierce Road which runs along the side of appellant’s property. And again, AT&T compared several alternative sites and identified this one as the best available and least intrusive means to address AT&T’s service coverage gap. No alternative site for Small Cell Node 3 has been proposed by the appellants or the City. Indeed, Planning Staff supports this location and the Planning Commission, who personally viewed this location, unanimously approved this site and the proposed design. Conclusion AT&T is diligently seeking to upgrade its network with cutting-edge technology to provide adequate quality wireless service to this part of Saratoga. The Planning staff and the Planning Commission both correctly found that AT&T’s design and proposed solution meets the City’s standards. AT&T has shown that both federal and state law strongly support (indeed, mandate) approval, and there has been no substantial evidence proffered on which the Council could grant this appeal. I urge the City Council to deny the appeal and uphold the Planning Commission’s approval of AT&T’s Application. Very truly yours, /s/ John di Bene John di Bene Attachment : Photosimulations 13988 Pierce Road, Saratoga, CA CRAN_RSFR_WSAR0_003 02.15.2018 Your Project. Visualized. www.photosims.com Photo simulation as seen looking north along Pierce Road proposed AT&T antenna proposed AT&T pole mounted equipment 13988 Pierce Road, Saratoga, CA CRAN_RSFR_WSAR0_003 02.15.2018 Your Project. Visualized. www.photosims.com Photo simulation as seen looking southwest along Pierce Road proposed AT&T antenna proposed AT&T pole mounted equipment