HomeMy WebLinkAbout4d - Correspondence - Paul R. O'Boyle - PA2012-057Paul R. O'Boyle
Paul R O'Boyle, JD /MBA
w/ www.oboylelaw.com t/ (858) 922 -8807
18269 Deer Canyon Place
e/ pro @oboylelaw.com f/ (858) 484 -7881
San Diego, CA 92129
November 21. 2013
Mr. James Campbell, Principal Planner
City of Newport Beach
Community Development Department
100 Civic Drive
Newport Beach, CA 92660
RE: Newport Beach Municipal Code — Chapter 20.49
Comments on Draft Wireless Telecommunications Facilities Ordinance
Dear Mr. Campbell:
As outside counsel for Crown Castle NG West, Inc. ( "Crown "), I am pleased to
submit these comments on the proposed changes to the City of Newport Beach's
( "City') Wireless Telecommunications Facilities Ordinance ( "Ordinance "). Crown
appreciates the opportunity to participate in the process and hopefully improve the
processing of wireless facilities within the City. Crown is hopeful that this letter will
provide additional information and insight on newer technologies that facilitate improved
wireless coverage and capacity solutions without creating the same level of impacts to
the community as traditional "macro" wireless cell sites.
Crown is a Competitive Local Exchange Carrier ( "CLEC ") in the State of
California providing regulated telecommunications services under Certificate of Public
Convenience and Necessity ( "CPCN ") #U- 6741 -C. Crown is not a wireless service
provider, nor does it provide wireless services to the general public. Instead, Crown is a
telephone utility that provides Distributed Antenna Systems ( "DAS ") coverage and
capacity solutions primarily to wireless carriers such as Verizon, AT &T and Sprint to
name but a few. As a state mandated utility, Crown has expressed rights to access the
public right -of -way ( "PROW ") to install its network and to provide regulated services.
Therefore, Crown's primary areas of concern are, How does the Ordinance:
1) treat smaller, less intrusive equipment such as DAS in the PROW; and,
2) apply to other entities that use and occupy the PROW, consistent with Public
Utilities Code Section 7901 and recent case law.
The current Draft Ordinance does not encourage smaller, less intrusive wireless
telecommunications equipment such as DAS, especially in the PROW. Although
f,
several Planning Commissioners have requested that the Ordinance include a Small
Cell exemption, no such language exists in the Draft Ordinance.
In addition to the Small Cell policy topic, below are specific comments on the
Draft Ordinance:
Section 20.49.020 Paragraph C (Exempt Facilities) — should include a Small Cell
Exemption define with specific dimensions, values, etc
Section 20.49.030 Paragraph E (Collocation) — Should be defined as the
collocation of multiple utilities on an existing pole. Definition should not be limited to just
wireless telecom providers.
Section 20.49.030 Paragraph I (Feasible or Feasibility) — should include
"economic" or "financial" as factors to consider in determining Feasibility.
Section 20.49.030 Paragraph M (Right -of -Way) — is too narrowly defined. The
definition of ROW should include not only the surface but the space below and above
the ROW surface. In addition, the definition should include the historic and traditional
uses of the ROW which include the transmission and conveyance of public facilities
such as gas, electric, telephone, water and sewer. These inclusions are important no
only because they more accurately depict the reality that is the ROW but because the
expanded definition includes those areas where wireless facilities usually occupy in the
ROW.
Section 20.49.040 Paragraph (A) and (B) [Telecom Facility Preference] —
although the addition of Class III (ROW Sites) to the list is a step in the right direction,
the list needs to be refined. Visible facilities should be broken down as to size. Surely a
Small Cell facility on a light standard is more preferable than a full array of antennas
running along the parapet of a building? If nothing else applicants will have a better
idea as to what facilities are deemed more desirable by the City.
Section 20.49.050 (General Development Design Standards) Paragraph 3 (Size)
— is too generic. A preference for Small Cell technologies should be stated. The
definition should include dimensions and volume required to qualify for Small Cell
designation.
Section 20.49.050 (General Development Design Standards) Paragraph 4
(Location) — The Ordinance is internally inconsistent in that it recommends telecom
facilities use the existing environment, natural or developed, yet the use of existing
utility poles and infrastructure, especially in the ROW, is not encouraged. The
Ordinance precludes attachment to traffic signals because of City Staff concerns.
Traffic signals have been successfully attached to in countless jurisdictions.
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Section 20.49.050 (General Development Design Standards) Paragraph D
(Setbacks) — Language should be added clarifying that set back requirements of
adjacent zones do not apply in the ROW.
Section 20.49.050 (General Development Design Standards) Paragraph E
(Design Techniques) — the words "as much as practical" should be added when
discussing screening of installations from view.
Section 20.49.050 (General Development Design Standards) Paragraph E
(Design Techniques) Sub - Paragraph 3 (Existing Features) — the word "poles" should be
added to the list
Section 20.49.050 (General Development Design Standards) Paragraph F (3)(b)
— the word "consistent" should be replaced with "substantial conformance' when talking
about size, shape, etc.
Section 20.49.050 (General Development Design Standards) Paragraph F (6)(b)
Support Equipment — The Ordinance lacks a nuanced approach to support equipment
location. Often times Small Cells place their support equipment on the utility pole
because it is small and inconspicuous. Placing equipment underground is not always
the best solution. Besides being costly, vaults have maintenance issues often related to
water intrusion. In addition, vaults require vents, which only clutters the ROW with more
street furniture.
Section 20.49.050 (General Development Design Standards) Paragraph F (6)(b)
(3) — The requirement that radios, amplifiers and the like have to be mounted inside a
pole "without" increasing the pole diameter" is difficult if not impossible to meet. While it
is understood that the City does not want to see the wiring, some latitude with the pole's
diameter may be need. A "substantial conformance" review would be preferable,
especially if the alternative is vaulting and all the difficulties associated with that.
Section 20.49.100 (Operational & RF Compliance and Emission Report) — Given
the cost of these reports and the over- whelming pass rate, several Planning
Commissioners' mentioned having these reports being required at the discretion of the
City. The draft Ordinance currently requires a site specific RF Report for each site.
If you have any questions or need additional information regarding these
comments, please do not hesitate to contact me. Thank you again for the opportunity to
comment, we look forward to working with the City on a new and improved Ordinance.
Sincerely,
Paul R. O'Boyle, Esq.
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